Forgery Charges Although Defendants Impersonated No One?

Aaron Ashby owned Ashby Remodeling & Services.  On April 18, 2011, he parked his car and left it unlocked.  Shortly thereafter, he returned to his car and discovered his company check book had been taken from his car.

Ashby then called his bank to report the company checks, but it was too late.

What to Take Away:  Unlawful use of personal identifying information (Penal Code § 530.5(a)) does not require one to hold oneself out as someone else that he or she is not, but is satisfied by obtaining another person’s personal identifying information and then using it for an unlawful purpose, as the following case explains.

Saul Barba and Jessica Lofgreen had apparently taken the checkbook from Ashby’s car.  Barba had already cashed one of Ashby’s business check made out to himself for $250, one to his wife for $600, and another one to himself for $600.  While the third check was being cashed, police arrived at the check cashing establishment and followed Barba to his van, where they found Lofgreen.

Lofgreen told police that she had recently thrown away several checks in a trash can nearby.  The police officer went to the trash can and found three checks that were not Ashby’s and two that were and had been already signed.  The signatures were supposedly that Mr. Ashby, but he did not sign such checks.  Barba told police that Lofgreen had signed the checks as Mr. Ashby.
4th Appellate District Court of Appeal San Diego
The San Diego District Attorney’s office charged Barba and Lofgreen with unlawful use of personal identifying information (Penal Code § 530.5(a)), forgery by possessing completed paper (Penal Code § 475(c)) and receiving stolen property (Penal Code § 496 (a)).

At the preliminary hearing, the judge dismissed the charge of violating Penal Code § 530.5(a), unlawful use of personal identifying information, as to each defendant.  The case was otherwise “held over” to superior court on the other charges.

The prosecutor then filed their information and re-alleged a violation of Penal Code § 530.5(a). Both attorneys for defendants then filed motions to dismiss this count concerning section 530.5(a), as the charge had been dismissed at the preliminary hearing. The trial court granted the motions and the People appealed to the Fourth Appellate District.

The Fourth Appellate District, in People v. Saul Barba (2012DJDAR 15690), then reversed, granting the prosecution’s s appeal.  The Fourth Appellate District noted the trial court’s reasoning that 530.5(a) “is an identity theft type statue… it doesn’t appear to me that when someone forges a check – it doesn’t appear that the statute is to be used when someone forges a check, but when someone represents themselves to be another person such as when they were cashing a check.”  The Fourth Appellate District disagreed with this interpretation.

The appellate court found that section 530.5(a) had three elements.  First, a person must willfully obtain personal identifying information belonging to someone else.  Second, the person must use that information for any unlawful purpose.  Third, the person must use the identifying information without the consent of the person whose personal identifying information is being used. In Re Ronaldo S. (2011) 197 Cal. App. 4th 936, 940; see also People v. Tillotson (2007) 157 Cal. App. 4th 517, 533; see also CALCRIM 2040.

The appellate court noted that 530.5(a) really was not an identity theft type law.  Rather, the statue proscribes a much broader scope of conduct.  The statute does not require that defendant hold himself or herself out to be someone else.  The most important requirements are obtaining personal identifying and using it for an unlawful purpose, without that person’s consent.

Here, the Fourth Appellate Court found this certainly did happen, as the evidence showed Barba and Lofgreen used the personal identifying information of Ashby Remolding & Services and cashed checks drawn on the business bank account.

Therefore, the trial court’s order dismissing the 530.5(a) allegation was reversed. 

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