CALCRIM No. 2040. Unauthorized Use of Personal Identifying Information (Pen. Code, § 530.5(a))

Judicial Council of California Criminal Jury Instructions (2023 edition)

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F. IDENTITY THEFT
2040.Unauthorized Use of Personal Identifying Information (Pen.
Code, § 530.5(a))
The defendant is charged [in Count ] with the unauthorized use
of someone else’s personal identifying information [in violation of Penal
Code section 530.5(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully obtained someone else’s personal
identifying information;
2. The defendant willfully used that information for an unlawful
purpose;
AND
3. The defendant used the information without the consent of the
person whose identifying information (he/she) was using.
Personal identifying information means <insert relevant items
from Pen. Code, § 530.55(b)> or an equivalent form of identification.
[As used here, person means a human being, whether living or dead, or a
firm, association, organization, partnership, business trust, company,
corporation, limited liability company, or public entity, or any other legal
entity.]
Someone commits an act willfully when he or she does it willingly or on
purpose.
An unlawful purpose includes unlawfully (obtaining/[or] attempting to
obtain) (credit[,]/[or] goods[,]/[or] services[,]/[or] real property[,]/ [or]
medical information)/ [or] <insert other unlawful purpose>)
without the consent of the other person.
It is not necessary that anyone actually be defrauded or actually suffer a
financial, legal, or property loss as a result of the defendant’s acts.
New January 2006; Revised August 2006, June 2007, August 2009, April 2010,
August 2012, August 2013, September 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
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In the definition of personal identifying information, give the relevant items based
on the evidence presented.
The definition of unlawful purpose is not limited to acquiring information for
financial motives, and may include any unlawful purpose for which the defendant
may have acquired the personal identifying information, such as using the
information to facilitate violation of a restraining order. (See, e.g., People v.
Tillotson (2007) 157 Cal.App.4th 517, 533 [69 Cal.Rptr.3d 42].)
AUTHORITY
• Elements. Pen. Code, § 530.5(a).
• Personal Identifying Information Defined. Pen. Code, § 530.55(b).
• Person Defined. Pen. Code, § 530.55(a).
• No Personation Requirement. People v. Barba (2012) 211 Cal.App.4th 214,
223-224 [149 Cal.Rptr.3d 371].
• Proof of Knowledge that Information Belonged to a Real Person Not Required.
People v. Zgurski (2021) 73 Cal.App.5th 250, 264 [288 Cal.Rptr.3d 214].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 210, 212.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01[1], [4][h] (Matthew Bender).
CALCRIM No. 2040 CRIMINAL WRITINGS AND FRAUD
110

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