Clear v. Superior Court

Citation: Clear v. Superior Court, 2010 WL 2029016 (Cal. App. 4th Dist. May 24, 2010).

Factual Background
Petitioner created a MySpace profile in the name of a pastor of a local church, which contained statements that the pastor engaged in homosexual activities and narcotics use. When contacted by law enforcement officers, petitioner admitted to creating the page without the pastor’s permission but that he had done so as a joke in retaliation for the treatment of his sister by a high school affiliated with the church. He was charged with violating California Penal Code §§530.5 and 529, [identity theft]] and false personation, respectively. Petitioner filed a 995 motion to dismiss, which was denied by the lower court with respect to the [[identity theft] charge.

Appellate Court Proceedings
Under Penal Code §530.5, an individual can be found guilty of identity theft if he willfully obtain personally identifiable information of another person and use that information for an unlawful purpose. Because California has repealed criminal statutes for libel and slander, the petitioner’s apparent defamation of the pastor did not satisfy the second element of the identity theft statute.

The prosecution argued that the petitioner had violated Penal Code §653m, using an electronic communication device with intent to annoy, however the court was not persuaded. This statute requires that the defendant make contact with the victim for a violation to occur, and while the pastor did happen upon the site, the court deemed this “contact” to be fortuitous because it is what alerted him to the page’s existence and what ultimately enabled him to have it removed.

The court also rejected the argument that the violation of the false personation statute could satisfy the second element of identity theft, holding that such an argument was tautological, “petitioner stole the victim’s identity for the unlawful purpose of posing as the victim.”

Penal Code §529 prohibits anyone from falsely impersonating another in either their private or official capacity if in such assumed character the defendant either:


 * [d]oes any other act whereby, if done by the person falsely personated, he might, in any event, become liable to any suit or prosecution, or to pay any sum of money, or to incur any charge, forfeiture, or penalty, or whereby any benefit might accrue to the party personating, or to any other person.

Unlike Section 530.5, which also requires a second act for liability, Section 529’s second act need not be criminal in nature. The court held that the petitioner’s defamatory statements could have subjected the pastor to reprimand or termination by the Church governing body; the prosecution had already provided evidence that some of the pastor’s congregation had stopped attending his church and that church officials had questioned him about the profile.