No. 2--05--0458 Filed: 5-9-07
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
) No. 03--CF--3689
)
MARIA D. MONTOYA, ) Honorable
) Rosemary Collins,
Defendant-Appellant. ) Judge, Presiding.
_______________________________________________________________________________
JUSTICE BOWMAN delivered the opinion of the court:
Following a stipulated bench trial, defendant, Maria D. Montoya, was convicted of two
counts of identity theft (720 ILCS 5/16G--15(a)(1) (West Supp. 2003)). The trial court sentenced
defendant to 30 months' probation and 100 hours of public service work and imposed a $500 fine.
On appeal, defendant argues that: (1) the evidence is insufficient to sustain her convictions of
identity theft, and (2) she is entitled to a $5 credit against her fine. We affirm defendant's
convictions but modify the sentencing order to reflect the $5 credit.
I. BACKGROUND
On February 18, 2004, defendant was indicted on two counts of identity theft. Count I
alleged that "between February of 2000 and December of 2003 *** defendant knowingly used
personal identifying information of Mona L. Cantu, by using the social security number of Mona
Cantu, to fraudulently obtain money exceeding $10,000 and not exceeding $100,000." Count II
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alleged that "between December of 2002 and August of 2003 *** defendant knowingly used
personal identifying information of Mona L. Cantu, by using the social security number of Mona
Cantu, to fraudulently obtain services exceeding $10,000 and not exceeding $100,000." The charges
arose after defendant, an undocumented immigrant, purchased a social security card bearing Cantu's
social security number and used it to obtain a job. A stipulated bench trial commenced on March
1, 2005, at which the following evidence was adduced.
Defendant applied to work for Terra Harvest Foods using Cantu's name and social security
number. From February 2000 to December 2003, defendant received $53,702.57 in wages at Terra
Harvest under the name and social security number of Cantu. As part of her employment package,
defendant was issued health insurance from Blue Cross Blue Shield of Illinois (Blue Cross), also
under Cantu's name and social security number. Between December 2002 and August 2003,
defendant received medical services at Swedish American Hospital that involved the delivery of her
baby. The medical services totaled approximately $31,000.
Defendant arranged for the Blue Cross statements to be mailed to her own address, and she
paid the medical and insurance bills. However, when Cantu changed her mailing address,
defendant's bills began arriving at Cantu's home. After receiving several bills that involved a
hospital stay and medical testing, Cantu questioned Blue Cross about these charges. From this
inquiry, Cantu learned that someone was using her name and social security number to obtain
insurance through Terra Harvest Foods.
Cantu reported these findings to the Loves Park police department. The police conducted
a follow-up investigation and learned that defendant was earning wages and receiving benefits at
Terra Harvest Foods under Cantu's name. When the police brought a photograph of Cantu to Terra
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Harvest Foods, defendant's supervisor stated that the woman in the photograph was not the person
he knew as "Mona Cantu."
The Loves Park police interviewed defendant on December 22, 2003. Initially, defendant
identified herself as Mona Cantu. The police asked for her mother's maiden name, and defendant
did not answer this question. Defendant told the police she was using someone else's "card."
Defendant was then transported to the police station, where she gave a statement explaining the
circumstances by which she obtained Cantu's social security number. According to defendant, she
drove to Chicago with a person named Sylvia, who loaned her $100 and obtained the social security
card for defendant. In her statement, defendant admitted using Cantu's name and social security
number to obtain a job. Defendant also stated that she did not use the social security number
anywhere else. There was no evidence that defendant knew that Cantu was a real person.
On April 8, 2005, defendant was convicted of two counts of identity theft. On May 9, 2005,
defendant filed a motion for a new trial, which the trial court denied.
At defendant's sentencing hearing on May 9, 2005, the State presented evidence of the
financial difficulty that defendant's actions had caused Cantu. First, the Illinois Department of
Employment Services attempted to recollect unemployment benefits that had been provided to Cantu
based on defendant's employment at Terra Harvest Foods. Second, the State of Illinois withheld
Cantu's state tax refund because it believed that Cantu was working at defendant's job and not paying
taxes. Third, the federal government withheld a portion of Cantu's federal tax refund based on
defendant's employment. Last, Cantu was forced to dispute various medical charges that defendant
had incurred. Defendant was sentenced to 30 months' probation and 100 hours of public service
work and was fined $500. Defendant timely appealed.
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II. ANALYSIS
A. Identity Theft
Defendant first argues that her actions did not constitute identity theft. Specifically, she
argues that she did not "fraudulently obtain" money and services when she used Cantu's name and
social security number to obtain a job, because she earned her wages and the insurance benefits were
part of her employment package. In reviewing a challenge to the sufficiency of the evidence, we
determine whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
People v. Collins, 214 Ill. 2d 206, 217 (2005). In this case, because the facts are not in dispute,
defendant's guilt is a question of law, which we review de novo. See People v. Smith, 191 Ill. 2d
408, 411 (2000).
We begin by setting forth the relevant provisions of the Identity Theft Law (720 ILCS
5/16G--1 et seq. (West Supp. 2003)), which was enacted in 1999. The legislative declaration for the
Identity Theft Law provides as follows:
"(a) It is the public policy of this State that the substantial burden placed upon the
economy of this State as a result of the rising incidence of identity theft and the negative
effect of this crime on the People of this State and its victims is a matter of grave concern to
the People of this State who have the right to be protected in their health, safety, and welfare
from the effects of this crime, and therefore identity theft shall be identified and dealt with
swiftly and appropriately considering the onerous nature of the crime." 720 ILCS 5/16G--
5(a) (West Supp. 2003).
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Under section 16G--15(a)(1), "[a] person commits the offense of identity theft when he or she
knowingly: (1) uses any personal identifying information or personal identification document of
another person to fraudulently obtain credit, money, goods, services, or other property." 720 ILCS
5/16G--15(a)(1) (West Supp. 2003). Section 16G--25 then states that "[i]t is no defense to a charge
of *** identity theft that the offender has an interest in the credit, money, goods, services, or other
property." 720 ILCS 5/16G--25 (West Supp. 2003).
We are asked to construe the phrase "fraudulently obtain" as used in the statute. "Because
the construction of a statute is a question of law, the standard of review is de novo." Collins, 214
Ill. 2d at 214. The principal rule of statutory construction is to give effect to the legislature's intent.
People v. Grever, 222 Ill. 2d 321, 328 (2006). The language of the statute is the best indication of
the legislative intent. Grever, 222 Ill. 2d at 328. To ascertain the legislature's intent, we may also
consider the purpose and necessity for the law, the evils sought to be remedied, and the goals to be
achieved. Collins, 214 Ill. 2d at 214. Furthermore, we should evaluate a statutory provision as a
whole rather than read phrases in isolation. People v. Glisson, 202 Ill. 2d 499, 505 (2002). When
the language is plain and unambiguous, we must apply the statute without resorting to further aids
of statutory construction. Collins, 214 Ill. 2d at 214.
The statute does not define fraud, and this is a case of first impression. "In the absence of
a statutory definition indicating legislative intent, an undefined term must be given its ordinary and
popularly understood meaning." In re Ryan B., 212 Ill. 2d 226, 232 (2004). Also, "[a] term of well-
known legal significance can be presumed to have that meaning in a statute." Advincula v. United
Blood Services, 176 Ill. 2d 1, 17 (1996). "Fraud" is defined as a "knowing misrepresentation of the
truth or concealment of a material fact to induce another to act to his or her detriment." Black's Law
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Dictionary 670 (7th ed. 1999); see also Webster's Third New International Dictionary 904 (1986)
(defining "fraud" as "an instance or an act of trickery or deceit esp[ecially] when involving
misrepresentation: an act of deluding"). "Fraudulent" means "belonging to or characterized by fraud
[or] *** obtained or performed by fraud." Webster's Third New International Dictionary 904 (1986).
In this case, defendant does not contest that she obtained money in the form of wages and
services in the form of insurance benefits. Rather, defendant contends that she did not "fraudulently
obtain" money or services, because she earned her wages and the insurance benefits were part of her
employment package. In other words, there is no evidence that she intended to defraud Terra
Harvest Foods by stealing money or by being compensated for services not actually rendered.
Defendant relies on City of Liberal v. Vargas, 28 Kan. App. 2d 867, 24 P.3d 155 (2001), to support
her argument. See People v. Cumbee, 366 Ill. App. 3d 476, 492 (2006) (with an issue of first
impression, it is instructive to consider other states' treatment of the issue).
In Vargas, the defendant admitted that he was not authorized to work in the United States and
that he had bought a social security card under someone else's name so that he could obtain
employment. Vargas, 28 Kan. App. 2d at 867, 869, 24 P.2d at 156, 157. The defendant was charged
with identity theft, which under the Kansas statute "is knowingly and with intent to defraud for
economic benefit, obtaining, possessing, transferring, using or attempting to obtain, possess, transfer
or use, one or more identification documents or personal identification number of another person
other than that issued lawfully for the use of the possessor." Vargas, 28 Kan. App. 2d at 868, 24
P.3d at 156. In reviewing the legislative history of the statute, the court noted that the statute was
intended to protect individuals who had had their identities stolen. Vargas, 28 Kan. App. 2d at 870,
24 P.3d at 157. According to the court, there was no mention of any intent by the legislature to
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protect a third party from identity theft. Vargas, 28 Kan. App. 2d at 870, 24 P.3d at 157. Thus,
because the defendant in Vargas stole a false identity rather than the identity of a real person, the
statute was inapplicable. Vargas, 28 Kan. App. 2d at 869-70, 24 P.3d at 157.
The court went on to say that even if the statute applied to the facts in that case, the defendant
could not be found guilty of identity theft. Vargas, 28 Kan. App. 2d at 870, 24 P.3d at 157. Noting
that the statute required an "intent to defraud," the court reasoned that the defendant did not intend
to defraud his employer by stealing money or by being compensated for services not actually
rendered. Vargas, 28 Kan. App. 2d at 870, 24 P.3d at 157. Also, the defendant did not receive any
"economic benefit," because he was paid for the time he worked. Vargas, 28 Kan. App. 2d at 870,
24 P.3d at 157. With respect to the argument that the defendant's employer would not have hired
the defendant had it known of his status as an illegal immigrant, the court responded that the
employer was not defrauded in any way by the defendant's actions. Vargas, 28 Kan. App. 2d at 870,
24 P.3d at 157.
At first glance, Vargas appears to support the defendant's position. However, a more recent
Kansas decision, State v. Oswald, 36 Kan. App. 2d 144, 137 P.3d 1066 (2006), limits the application
of Vargas. In Oswald, the defendant was charged with identity theft for using another person's name
and social security card to open a cell phone account. Oswald, 36 Kan. App. 2d at 146, 137 P.3d at
1068. The defendant knew the victim, Willhoite, who had provided the defendant with her social
security information for the limited purpose of paying a phone bill. Oswald, 36 Kan. App. 2d at 145,
148, 137 P.3d at 1067, 1069. Willhoite never made any payments on the newly established account,
because the defendant arranged for the cell phone bills to be sent to the defendant's address. Oswald,
36 Kan. App. 2d at 145, 137 P.3d at 1067.
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Relying on Vargas, the defendant argued that she obtained no "economic benefit" from her
use of Willhoite's information. Oswald, 36 Kan. App. 2d at 148, 137 P.3d at 1069. The Oswald
court rejected that argument, reasoning that due to her poor credit the defendant would have been
unable to establish a cellular account without using Willhoite's identifying information. Oswald, 36
Kan. App. 2d at 148-49, 137 P.3d at 1069. The Oswald defendant also relied on the language in
Vargas stating that the defendant did not intend to defraud his employer by stealing money or by
being compensated for services not actually rendered. Oswald, 36 Kan. App. 2d at 149, 137 P.3d
at 1069. However, the Oswald court stated that this language in Vargas was "clearly dicta" because
the Vargas decision was based on the defendant's use of a fraudulent identity, rather than an identity
that belonged to a real person. Oswald, 36 Kan. App. 2d at 149, 137 P.3d at 1069-70.
Vargas, in light of Oswald, does not support defendant. The Oswald court interpreted Vargas
to hold that a defendant can be convicted of identity theft only if the stolen identity belongs to a real
person. See Oswald, 36 Kan. App. 2d at 149, 137 P.3d at 1069. Thus, Vargas is distinguishable on
this basis because defendant in this case used the identity of a real person, Mona Cantu. Also, the
very language in Vargas relied upon by defendant was characterized as "clearly dicta" by the Oswald
court. As a result, defendant's reliance on Vargas for the proposition that she did not intend to
defraud her employer by stealing money or by being compensated for services not actually rendered
is unpersuasive.
The State urges us to follow State v. Ramirez, 246 Wis. 2d 802, 633 N.W.2d 656 (2001),
where the defendant admitted to using another person's social security number to obtain a job. The
social security number belonged to a person living in Nevada. Ramirez, 246 Wis. 2d at 805, 633
N.W.2d at 658. The defendant was charged under Wisconsin's identity theft statute, which stated
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that "[w]hoever intentionally uses or attempts to use any personal identifying information or personal
identification document of an individual to obtain credit, money, goods, services or anything else
of value without the authorization or consent of the individual and by representing that he or she is
the individual or is acting with the authorization or consent of the individual is guilty of a Class D
felony." Ramirez, 246 Wis. 2d at 805 n.3, 633 N.W.2d at 658 n.3. Among other things, the
defendant argued that he did not obtain a thing of value as the result of his unauthorized use of
another person's social security number. Ramirez, 246 Wis. 2d at 808, 633 N.W.2d at 659. The
court rejected that argument, stating that what the defendant ultimately sought and obtained was the
compensation and other economic benefits that flowed from the employment. Ramirez, 246 Wis.
2d at 808, 633 N.W.2d at 659. Because the defendant obtained money in the form of wages as the
result of his unauthorized use of another's personal identifying information, he was guilty of identity
theft. Ramirez, 246 Wis. 2d at 813, 633 N.W.2d at 662.
For the following reasons, we hold that defendant "fraudulently obtained" both money and
services as a result of her unauthorized use of Cantu's name and social security number. Defendant
admitted that she knowingly used Cantu's name and social security number to obtain a job at Terra
Harvest Foods, where she received more than $50,000 in wages. As part of her employment
package, defendant was issued an insurance policy in Cantu's name, through which she received
approximately $31,000 in medical services. Obviously, had defendant not used Cantu's name and
social security number to obtain a job, she would not have been entitled to receive the wages and
insurance benefits that flowed directly from her employment. While it is true that defendant did not
actually steal money or services from her employer, she did obtain employment, compensation, and
insurance benefits by misrepresenting herself as someone else. Contrary to defendant's assertion,
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the statute did not require her to "defraud" her employer by "stealing money" or by "being
compensated for services not actually rendered" in order to be guilty of identity theft. Again, the
"fraudulent" behavior in this case consisted of defendant's knowing use of Cantu's identifying
information to obtain employment, wages, and benefits to which she would not otherwise have been
entitled. Perhaps more importantly, section 16G--25 of the Identity Theft Law states that "[i]t is no
defense to a charge of *** identity theft that the offender has an interest in the credit, money, goods,
services, or other property." (Emphasis added.) 720 ILCS 5/16G--25 (West Supp. 2003). As the
State points out, the statute, on its face, defeats defendant's claim that she has a defense to the
identity theft charges because she earned the money and the insurance benefits. Under the statute,
her interest in these items provides no defense. Thus, the fact that defendant earned the wages and
qualified for the insurance benefits does not somehow negate the fact that they were "fraudulently
obtained."
Our holding is consistent with the legislative declaration of the Identity Theft Law, which
focuses on the substantial burden placed upon the economy as a result of identity theft. See 720
ILCS 5/16G--5(a) (West Supp. 2003). In addition to deceiving her employer, defendant's actions
caused Cantu numerous financial difficulties relating to unemployment benefits, disputed medical
bills, and federal and state tax refunds. For this reason, the legislature stated that "identity theft shall
be identified and dealt with swiftly and appropriately considering the onerous nature of the crime."
720 ILCS 5/16G--5(a) (West Supp. 2003).
Our interpretation of the statute is also reinforced when one considers the legislative debates.
See In re Consolidated Objections to Tax Levies of School District No. 205, 193 Ill. 2d 490, 502-03
(2000) (although it is not necessary to resort to legislative history to construe a statute whose
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meaning is plain, the history did not conflict with the supreme court's interpretation of the statute).
When the identity theft legislation was originally proposed, it resembled the Wisconsin identity theft
statute discussed in Ramirez, in that identity theft was defined as "using another personal identity
to obtain credit, money, goods, services or other property in that person's name without their written
permission while representing that one is that person or is acting on their behalf." (Emphasis added.)
91st Ill. Gen. Assem., Senate Proceedings, March 24, 1999, at 35 (statements of Senator Munez).
An amendment by the House of Representatives, adopted by the Senate, "[c]larifie[d] the standard
for finding the defendant guilty, eliminating confusing language about written permission to simply
require that the defendant fraudulently obtained credit, money, goods, service [sic] or other property
in the name of another in order for the defendant to be found guilty." 91st Ill. Gen. Assem., Senate
Proceedings, May 18, 1999, at 18 (statements of Senator Munez). The amendment, which was
"largely technical in nature" (91st Ill. Gen. Assem., House Proceedings, May 6, 1999, at 56
(statements of Representative Righter)), reinforces our interpretation that defendant's conduct falls
under section 16G--15(a)(1) of the Identity Theft Law. By representing herself as Cantu (without
Cantu's permission) to obtain a job, defendant "fraudulently obtained" money and services during
the course of her employment.
B. Credit Against Fine
Defendant's second argument is that she is entitled to a $5 credit against her fine. A probable
cause statement, which lacks a file-stamp and a judge's signature, indicates that defendant was
arrested on December 22, 2003. A bail bond, which is file-stamped December 23, 2003, shows that
defendant posted bond on December 22, 2003. According to the State, the record is "not entirely
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clear" that defendant spent a partial day in custody before posting bond. Defendant responds that
there was no need to post bond on December 22, 2003, unless she was in custody.
Section 110--14 of the Code of Criminal Procedure of 1963 provides: "Any person
incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on
conviction of such offense shall be allowed credit of $5 for each day so incarcerated upon application
of the defendant." 725 ILCS 5/110--14 (West 2002). Any portion of a day in custody constitutes
a full day for purposes of section 110--14. People v. Stahr, 255 Ill. App. 3d 624, 627 (1994). Also,
defendant's failure to raise this issue in the trial court does not mean it is waived. See People v.
Woodard, 175 Ill. 2d 435, 447-48, 457 (1997) (the credit is not limited to people who apply for it
at the trial level; as such, the normal rules of waiver do not apply and the right is cognizant on appeal
as a matter of course subject to the defendant's application).
According to the probable cause statement, the bail bond, and the presentence report,
defendant was arrested on December 22, 2003, and released on bail the same day. We agree with
defendant that the record is sufficiently clear that she spent a partial day in custody before posting
bond. Accordingly, defendant is entitled to a $5 credit against her fine. See Stahr, 255 Ill. App. 3d
at 627 (where the defendant was arrested and released on bail on the same day, she was entitled to
a $5 credit against her fine).
III. CONCLUSION
For the foregoing reasons, the judgment of the Winnebago County circuit court is affirmed
as modified to reflect a $5 credit against defendant's fine.
Affirmed as modified.
McLAREN and BYRNE, JJ., concur.
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People v. Montoya
Combined Opinion