Is Identity Theft A Felony?

You may have seen a commercial or advertisement for products that can help a person protect their identity, and for good reason. According to the Federal Trade Commission, in 2024 and 2025, fraud losses surged to over $12.5 billion, with digital identity manipulation becoming the dominant threat. Identity theft is a crime that has become even easier to commit thanks to AI-powered scams and sophisticated social engineering.

Because of this rising tide, the legal system treats these offenses with extreme severity. If you are facing charges, the most pressing question you likely have is: Is identity theft a felony? In California, the answer is complex because the crime is classified as a “wobbler,” meaning it can be charged as either a misdemeanor or a felony depending on the specific facts of the case.

What is Identity Theft under California Law?

Identity theft falls under the broader category of fraud. It is defined as the willful obtaining and use of another person’s “personal identifying information” (PII) without their consent for an unlawful or fraudulent purpose.

While many people think identity theft only involves stealing a credit card to go on a shopping spree, the law covers a much wider range of behaviors. Even an unsuccessful attempt to commit fraud using someone else’s data can lead to a conviction under California Penal Code 530.5.

Defining “Personal Identifying Information” (PII)

Under Penal Code 530.55, the definition of PII has been expanded to keep pace with 2026 technology. It includes, but is not limited to:

• Government Identifiers: Social Security Numbers, U.S. Citizenship numbers, and Passport numbers.
• Financial Access: Checking and savings account numbers, PINs, and credit card data.
• Biometric Data: Voiceprints, retina scans, fingerprints, and facial recognition data.
• Digital Identity: Email addresses, Mother’s maiden name, and electronic signatures.

Common Examples of Identity Theft

The ways in which identity theft is committed vary from low-tech physical theft to high-tech digital breaches:

1. Mail and Package Theft: Stealing bank statements or credit card offers from mailboxes to open new lines of credit.
2. Medical Identity Theft: Using someone else’s PII to obtain medical services, prescription drugs, or file false insurance claims.
3. Digital Impersonation: Accessing a person’s emails or private social media to learn sensitive information for the purpose of defrauding others.
4. Synthetic Identity Theft: Combining real PII with fake data to create an entirely new, “synthetic” identity used to secure loans or leases.

Is Identity Theft a Felony or Misdemeanor?

In California, identity theft is a “wobbler,” and the prosecutor’s decision on how to charge you depends on three main factors: your criminal history, the amount of financial loss, and the sophistication of the crime.

Misdemeanor Identity Theft

If the crime involves a small financial loss or if the defendant has no prior record, it may be charged as a misdemeanor.

• Penalties: Up to one year in county jail, summary probation, and fines of up to $1,000.
• Victim Restitution: Regardless of the charge, the court will almost always order you to pay back the victim for their financial losses.

Felony Identity Theft

If the theft involves significant sums of money, multiple victims, or the intent to commit another serious felony, it is charged as a felony.

• Penalties: Up to three years in state prison, formal probation, and fines of up to $10,000.
• Aggravating Factors: Crimes targeting elderly or vulnerable populations, or those involving the use of a “skimming” device, often trigger enhanced felony sentencing.

Aggravated Identity Theft: The Federal Level

When asking “Is identity theft a felony?”, it is crucial to understand that the crime can also be prosecuted in federal court. Under 18 U.S. Code § 1028A, “Aggravated Identity Theft” carries a mandatory minimum penalty of two years in federal prison.

This mandatory sentence must run consecutively to any other sentence imposed. For example, if you are convicted of wire fraud (3 years) and aggravated identity theft (2 years), you must serve a total of five years. Federal prosecutors typically take over cases involving interstate commerce, acts of terrorism, or massive data breaches.

The Role of Restitution in 2026

By 2026, California courts have placed an even higher emphasis on “making the victim whole.” Restitution is not just about the money stolen; under Penal Code 1202.4, it can also include:

• Costs incurred by the victim in correcting their credit history.
• Legal fees related to civil or administrative proceedings to clear their name.
• Lost wages for time spent dealing with the fallout of the theft.

For a defendant, paying restitution early in the legal process can sometimes be a powerful mitigating factor that helps an attorney negotiate a felony charge down to a misdemeanor.

Automatic Record Relief: The “Clean Slate” Impact

A major update for 2026 is the full implementation of Senate Bill 731. This law provides for automatic record sealing for many individuals once they have completed their sentence and remained conviction-free for a set period.

• Misdemeanor Dismissals: Many misdemeanor identity theft convictions are now automatically sealed one to four years after the case ends.
• Felony Sealing: Even some felony identity theft convictions may be eligible for automatic sealing four years after the sentence is completed, provided it was a non-violent, non-serious offense.

Once a record is sealed under these “Clean Slate” provisions, most private employers can no longer see the conviction during a background check. This is a game-changer for those looking to return to the workforce.

Impersonation and Counterfeit Identities

Identity theft often overlaps with other crimes, such as impersonation.

• Online Impersonation (PC 528.5): Pretending to be someone else on social media or a website to harm or defraud carries up to a year in jail.
• Counterfeit Government IDs: Providing fake driver’s licenses or birth certificates is a serious offense. First-time offenders face up to a year in jail, but second offenses carry significantly higher fines and mandatory jail time.

Even possessing a “fake ID” (common for underage individuals) is technically a crime. While usually treated as a misdemeanor with fines and community service, it still results in a criminal record that must be addressed.

Defending Against Identity Theft Charges

If you are facing charges, it is important to remember that the prosecution must prove intent to defraud. Potential defenses include:

1. Lack of Intent: If you used someone’s information by accident or under a mistaken belief of consent, you cannot be found guilty.
2. Mistaken Identity/False Accusation: In the digital age, hackers often frame innocent people by routing illegal activity through their IP addresses.
3. Insufficient Evidence: If the prosecution cannot link you directly to the fraudulent transactions, the case may merit a dismissal.

Why You Need a Bakersfield White-Collar Defense Lawyer

The question “Is identity theft a felony?” is often just the beginning of a complex legal journey. In 2026, the intersection of technology, privacy laws, and criminal statutes makes these cases incredibly difficult to navigate alone. A conviction—whether it is a misdemeanor or a felony—can lead to a permanent “fraud” flag on your record, making it nearly impossible to find a job in finance, healthcare, or any field involving trust.

At the Law Office of David L. Faulkner, we specialize in defending against white-collar crimes in Kern County. We stay at the forefront of California’s evolving “Clean Slate” laws and forensic evidence standards to ensure our clients receive the most robust defense possible. We look for the “signs your case will be dismissed,” such as procedural errors by law enforcement or gaps in the prosecution’s digital evidence.

Securing a dismissal or a reduction in charges early in the process is the key to protecting your future. Our team works to challenge the “wobbler” status of your case, aiming to keep your record as clean as possible through aggressive negotiation and courtroom advocacy.

Identity theft charges are serious, but they don’t have to define your life. Contact the Law Office of David L. Faulkner today to schedule a free consultation and let us fight for your rights.