You have specific legal remedies, separate from anything the actual offender faces. California law lets you start your own police investigation, and in defined situations lets you ask a court to formally declare you factually innocent and to clean up the public record that connects your name to the crime.

Start with your own police report

If you have learned or reasonably suspect that someone unlawfully used your personal identifying information, Penal Code section 530.6(a) lets you start an investigation with the local law enforcement agency that covers where you actually live or have your place of business, not only where the crime happened. That agency must take a police report, give you a copy, and begin investigating the facts, and if the suspected crime happened somewhere else, it may refer the matter to the agency there. Police reports are among the materials a court can consider on the factual-innocence petition described next, so keep your copy.

The specific court remedy: a determination of factual innocence

If you reasonably believe you are an identity-theft victim, section 530.6(b) also lets you petition a court for an expedited judicial determination of your factual innocence; the court can also take this up on its own motion or at the prosecutor’s request. It applies in three situations: the person who used your identity was arrested, cited, or convicted under your name; a criminal complaint was filed against that person in your name; or your identity has been mistakenly associated with a record of criminal conviction. The court can decide the petition on declarations, affidavits, police reports, or other material, relevant, and reliable information. If it finds the petition meritorious and no reasonable cause to believe you committed the offense, it must find you factually innocent and issue an order certifying that finding.

After that finding, section 530.6(c) lets the court order your name and identifying information in court records, files, and indexes open to the public deleted, sealed, or labeled to show the data is impersonated and does not reflect your identity. Under section 530.6(d), the court can vacate the finding at any time if the petition or anything submitted with it contains a material misrepresentation or fraud, so accuracy in what you submit matters.

A separate rule if the real offender is convicted

If the person who used your identity is convicted of the crime they committed with it, Penal Code section 530.5(b) requires the court records to reflect that you, the person whose identity was falsely used, did not commit it. The statute ties this to the other person’s conviction rather than to a petition from you, although it is worth confirming that the records were actually corrected.

A different process if you were the one arrested

The remedies above are specific to identity theft. If you were personally arrested, Penal Code section 851.8 is a more general factual-innocence law that applies whether or not identity theft was involved. If no charges were filed, you petition the law enforcement agency with jurisdiction over the offense (with a copy to the prosecutor), and then the superior court if that petition is denied; if charges were filed and later dismissed, you petition the court that dismissed them. Relief requires a finding that no reasonable cause exists to believe you committed the offense for which you were arrested, and it leads to sealing and later destruction of the arrest records. Petitions can be filed up to two years after the arrest or the filing of charges, whichever is later, although the time limit can be waived for good cause when there is no prejudice. The two laws can overlap: section 530.6 turns on what was done in your name, while section 851.8 turns on your own arrest, so if you were arrested yourself, ask a lawyer whether one or both fit before you file.

What to do now

  • Get a copy of the police report, complaint, or record that connects your name to the case, and note exactly which of the situations above it matches.
  • File your own report with the law enforcement agency covering where you live or work if you have not already.
  • Note the date of any arrest or court filing connected to your name, since the general factual-innocence petition under section 851.8 has a two-year filing window.
  • Do not contact the person you believe used your identity yourself; let the investigation and the court process handle it.

If someone else’s misuse of your identity has connected your name to a theft accusation, the Law Offices of David S. Chesley can help you sort out which of these remedies fit your situation. Call (800) 755-5174.