1

Filed 12/27/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

YAHOR ZGURSKI,

Defendant and Appellant.

 A160525

 (City & County of San Francisco

 Super. Ct. No. SCN226691)

In 2018, a jury convicted Yahor Zgurski of using the personal 

identifying information of another person for an unlawful purpose. (Penal 

Code, § 530.5, subdivision (a) (section 530.5(a)); undesignated statutory 

references are to the Penal Code.) The trial court reduced Zgurski’s felony 

conviction to a misdemeanor and placed him on probation for three years. 

On appeal, Zgurski contends there is insufficient evidence to support 

his conviction. He also contends that his probation term must be reduced to 

one year pursuant to a recent amendment to section 1203a, but in his reply 

brief, Zgurski acknowledges that this part of his appeal is moot. We affirm

the judgment.

BACKGROUND

I. Prosecution Evidence

Zgurski came to the attention of the San Francisco District Attorney 

because of his involvement in a scheme to defraud consumers who used the 

internet to purchase a boat from a person ostensibly called Joshua Eisenberg. 
2

A. The Boat Fraud Scheme

In May 2014, Michael C. wanted to buy a boat, looked on eBay, and was 

directed to another internet site where he found a boat for sale that 

interested him. Michael sent an email inquiry to Joshua Eisenberg, who was 

listed as the boat owner.1 The two exchanged emails and spoke on the phone. 

Eisenberg offered to deliver the boat to Michael, who lived in New York. He 

told Michael that he would set up an escrow account in California with a 

company called ITRADER Global. Michael was to deposit money into that 

account and then, once the boat was delivered, Michael would call the escrow 

company and the funds would be released to Eisenberg. They negotiated a 

sale price of $30,500. 

In June 2014, Michael instructed his bank to complete a wire transfer 

of funds to the account designated by Eisenberg. Eisenberg confirmed the 

transfer and sent Michael a certificate of title that appeared genuine. When 

Michael received confirmation of the transfer from his bank, it reflected that 

the money was sent to a bank account in California, but the beneficiary was 

GV National Trading Services rather than ITRADER Global. The boat was 

never delivered. Michael tried to contact Eisenberg with no success. 

Meanwhile, in May 2014, Steve B. was living in Ohio when he 

attempted to buy a boat listed on eBay but was outbid. A few days later,

Steve received an email from Josh Eisenberg, who said that the sale of the 

boat that Steve bid on fell through and inquired if Steve was still interested 

in buying it. After further discussion over email, they agreed on a sale price 

of $23,500. 

1 “Joshua Eisenberg” is here a fictitious person, but we omit the last 

names of real individuals who were victims of this fraud scheme to protect 

their privacy.
3

Eisenberg told Steve that he wanted to use a third-party service he had 

used in the past called ITRADER Global. Eisenberg said that service would 

hold Steve’s money until Eisenberg delivered the boat and Steve had the 

opportunity to look it over and make sure he was happy with it. Steve set up 

an account at ITRADER Global and authorized his bank to wire money to the 

account. Eisenberg sent Steve an email confirming that the money had been 

transferred and the boat would be delivered to Steve. When Steve received 

confirmation of the wire transfer from his bank, he learned that the money 

was wired to GV National Trading Services. The boat was never delivered to 

Steve and Eisenberg did not respond to calls or emails. 

B. The Fraud Investigation

The district attorney in Suffolk County, New York began an 

investigation of the Eisenberg fraud scheme after Michael C. filed a 

complaint. The bank account that was used to defraud Michael C. and Steve 

B. was located in San Francisco at the West Castro branch of Bank of the 

West. It was opened in January 2014 and closed in July 2014, and the 

account holder was Alexander B. doing business as GV National Trading 

Services. For ease of reference, we will refer to this account as the GV 

National account.

The Suffolk district attorney’s office contacted the San Francisco 

district attorney, and the Eisenberg fraud case was assigned to Pollie Pent,

an inspector on the high-tech crimes task force. Pent obtained records 

pertaining to the GV National account from Bank of the West, which showed

that Michael C. and Steven B. wired money into this account, and that money 

was wired from this account to a woman in Russia. Pent also obtained still 

photographs of a man at the bank conducting business in the account. 
4

Through her investigation, Pent learned that the man who opened the 

GV National account used a Pennsylvania license, which contained 

Alexander B.’s name and an identification number for a valid driver’s license 

belonging to a man named Loni P. Pent used this information to conduct a 

“deconfliction,” which is a database search of an “Intelligence Clearinghouse” 

of ongoing fraud investigations to determine if other agencies are looking at 

the same information. The driver’s license number used to open the GV 

National account was connected to a man named Vadzim Klimasheuski, who 

was the “target” of an FBI investigation in South Florida that involved bank 

fraud, drugs and weapons. 

After additional research, Pent discovered that the name Alexander B.

was also associated with the South Florida fraud investigation of 

Klimasheuski. Pent contacted Alexander B., who later testified at Zgurski’s 

trial. Alexander B. reported that he did not open the GV National account or

any other bank account on the West Coast. Nor did Alexander B. give 

anybody permission to use his name to open the GV National account or have 

any knowledge about a company called GV National Trading Services. 

Pent found a “Facebook” page for Vadzim Klimasheuski, which led her 

to Zgurski, who was identified as a friend of Klimasheuski. Zgurski was

easily recognizable as the man in the bank photographs conducting 

transactions in the GV National account. A Bank of the West employee also 

identified Zgurski as the man who opened the GV National account using the 

name Alexander B. 

Through further investigation, Pent discovered that Zgurski and 

Klimasheuski were neighbors living on the same cul-de-sac in San Francisco. 

A phone record search showed that calls perpetrating the fraudulent boat 
5

transactions originated within a 25-meter radius of a location between the 

homes of these two men. 

C. Zgurski’s Arrest and Interview

In February 2015, Zgurski was arrested and interviewed by Pent and 

an FBI special agent who was involved in the South Florida fraud

investigation. At the outset of the interview, Zgurski waived his Miranda

rights and stated that he wanted to talk to the investigators. Zgurski was 

provided the assistance of an interpreter, which he did not use. The 

interview was recorded and admitted into evidence at Zgurski’s trial.2

Before asking questions, Pent stated that Zgurski had been arrested for 

conducting banking transactions in an account that people used to attempt to 

buy boats. Pent said she had evidence that Zgurski had gone into the 

account, withdrew money, and then wired the rest of the money to a woman 

in Russia. Zgurski denied doing those things, and also denied opening an 

account at Bank of the West in January 2014. Pent showed Zgurski several 

photographs that had been taken at Bank of the West. Zgurski grinned as he 

confirmed that he was the person in the photographs. Pent also told Zgurski 

that bank employees had identified him as the person who opened the 

account. Then Zgurski admitted that he opened the GV National account in 

January 2014. He told the officers that he “did it” because he “needed . . . 

some money.” 

Zgurski said he did not use his own name to open the account because 

it was supposed to be in somebody else’s name. He claimed not to remember 

what name he used, but he admitted that he did not know that person. Both

officers pressed Zgurski to explain how he got the name that he used to open 

2 Video exhibits of Zgurski’s interview were transmitted to this court 

pursuant to our own motion. (Cal. Rules of Court, Rule 8.224(d).) 
6

the account. Pent asked how Zgurski got the information of a person who he 

did not know, stating that this “guy does exist” and that he is “mad” because 

his name has been “flagged” by the authorities. Zgurski did not respond to 

Pent’s question. When the FBI agent asked again how Zgurski got the name, 

Zgurski asked if he could “not answer” this particular question. Pent told 

him that he did not have to answer, reminding him of his Miranda rights. 

(See Miranda v. Arizona (1966) 384 U.S.436.)

After a pause, Zgurski said “okay,” and then told the officers that his 

friend, Vadzim Klimasheuski, told him that he could make some money if he 

opened an account at Bank of the West in San Francisco and used the 

account to send money to Russia. In exchange for these services, 

Klimasheuski paid Zgurski $1000. Klimasheuski told Zgurski not to use his 

own name and gave him the ID to open the account. Zgurski admitted that 

he supplied a photo of himself and Klimasheuski gave him the ID a few 

weeks later. Zgurski did not know the purpose of the account or ask 

Klimasheuski any questions about the name on the ID. The ID was a 

Pennsylvania driver’s license because that made things easier. The only 

question Zgurski asked was whether his role would be dangerous. 

Klimasheuski said there was no danger and not to worry. 

Zgurski acknowledged that he opened the account in the name of 

Alexander B. He also confirmed that the account was opened in the name of 

a company, but he did not know why that name was used. Klimasheuski

gave him the information to open the account, including the company name, 

the account holders’ phone numbers and their address. Klimasheuski told 

him to go to Bank of the West but did not tell him what branch. The first 

branch Zgurski went to was not able to open the account because of a 

computer problem, so he went to the Castro branch. 
7

The FBI inspector asked Zgurski what happened to the ID. Zgurski 

explicitly denied giving it back to Klimasheuski. He said that he threw it 

away because he did not need it anymore and it was not good to have 

something like that around. Pent suggested that Zgurski threw the ID away 

because he did not want to get caught with it and Zgurski agreed. 

Zgurski said that Klimasheuski paid him cash after he completed the 

bank transactions transferring funds to Russia. In response to a question 

whether Klimasheuski was a good business partner, who did what he said he 

was going to do, Zgurski answered yes. Zgurski repeatedly denied asking 

Klimasheuski anything about the purpose of the transactions. He disagreed 

with the inspectors that he was too smart not to ask questions. Pent said

Zgurski was smart enough to get away with impersonating Alexander B. and 

repeated that poor Alex B. could not leave the country because he was “on a 

hold.” 

Zgurski told the officers that he met Klimasheuski because they were 

both from Belarus, arrived in America around the same time, and became 

roommates. When Klimasheuski approached Zgurski about the bank

proposal, they were no longer roommates. Klimasheuski just approached him 

one day and asked if he wanted to make some extra money. Zgurski did not 

want to do the job but he needed money. Zgurski told the officers that he no 

longer had a relationship with Klimasheuski. They were neighbors, living on 

the same court, but they would only say hello in passing. Nothing happened 

between them, they just had different lives. 

The FBI agent emphasized the seriousness of the situation and said 

they had put all their cards on the table so that Zgurski would do the same. 

Pent asked if Zgurski was “worried at all” about the consequences of sharing 

information or about his “safety.” Zgurski responded that he was not 
8

worried. The FBI agent asked if Zgurski was interested in helping himself 

and Zgurski said he was. The agent asked if Zgurski would talk to 

Klimasheuski, ask him questions about the case, and record his answers. 

When Zgurski appeared hesitant, Pent asked if he was concerned or afraid 

that if he recorded Klimasheuski and Klimasheuski found out and got in 

trouble, then someone might try to do something to Zgurski, like damage his 

car. Zgurski responded yes. 

During another part of the interview, the FBI agent spoke to Zgurski 

alone. Zgurski said he wanted to cooperate and he would do everything the 

agent wanted him to do. The agent asked if Zgurski had any other 

information about Klimasheuski, the IDs, or anything else. Zgurski said he 

had not been interested in the scheme and never asked any questions other 

than whether his role would be dangerous. 

Despite his offer to help, Zgurski did not assist with the investigation of 

the Eisenberg boat fraud scheme or Klimasheuski’s other activities. 

II. Zgurski’s Defense

At trial, Zgurski called two witnesses who testified that Zgurski is

honest and trustworthy. Then Zgurski testified in his own defense, providing 

details about his background and involvement with Klimasheuski and the 

boat fraud scheme.

Zgurski was born in Russia and raised in Belarus, where life was 

difficult because of corruption and the prominence of gangsters. As a young 

person, Zgurski was often attacked and beaten by random people. He took a 

break from college to serve in the army where he was beaten by “Elder 

soldiers,” probably because of his political activities. As a result of that 

trauma, Zgurski has problems with his memory. In 2010, he came to 

America on a student program and moved to Treasure Island where people 
9

from his country offered him a place to live. He had trouble understanding 

English, although his skills improved by the time he testified at trial.3 He

was granted political asylum in 2013. 

When Zgurski first moved to Treasure Island, he shared an apartment 

with five other people from Belarus, including Klimasheuski. By coincidence, 

Klimasheuski had arrived in the country the day before Zgurski and Zgurski 

tried to become his friend. They obtained their driver’s licenses together, 

they worked together for a moving company, and they got jobs driving for 

Super Shuttle. However, Zgurski noticed that living in America changed 

Klimasheuski; he got in fights, got involved with guns, and people were 

afraid of him. By 2014, Zgurski was also afraid of Klimasheuski, but even 

before then, Zgurski moved to a different home because he did not like 

Klimasheuski. 

Zgurski testified that he participated in Klimasheuski’s banking 

scheme because he had money problems. Initially, Zgurski stated that he did 

not recall how Klimasheuski knew about his money problem. Later, he 

testified that Klimasheuski loaned him $1,000, which he could not pay back. 

Klimasheuski told Zgurski that he could make some money if he was willing 

to “open an account in a bank and transfer money.” Klimasheuski said they 

would be using his money so it would not be stealing. Initially, Zgurski 

agreed to do this, but then people told him not to, so he changed his mind and 

refused. But Klimasheuski pressured him with violence and threats. At one 

point he put Zgurski in a headlock, and he also threatened Zgurski’s family in 

Belarus. A few months after Klimasheuski made his proposal, Zgurski 

accepted it. 

3 Zgurski waived his right to the assistance of an interpreter at trial. 
10

In January 2014, Zgurski opened an account at the Bank of the West in 

San Francisco by using a Pennsylvania driver’s license bearing his picture 

and the name Alexander B. Klimasheuski provided the ID and told Zgurski 

that the person’s name on the card was “not [an] existing person so just made 

up.” For several months after Zgurski opened the account, he did not have 

much contact with Klimasheuski. Zgurski could not recall if he was even 

living on Treasure Island during that period. Then one day Klimasheuski

gave Zgurski instructions to transfer money from the GV National account to 

an account in Russia. Zgurski went into the bank to make withdrawals and 

to arrange for the wire transfer to Russia. To conduct these transactions, 

Zgurski used an ATM bank card and the ID card bearing his picture and the

name Alexander B. According to Zgurski, Klimasheuski had kept both cards 

in his possession and only gave them to Zgurski when he wanted a 

transaction to happen. Zgurski admitted telling Inspector Pent that he got 

“rid” of the ID card, but at trial he claimed that was a miscommunication, as 

he meant to say that he gave the card back to Klimasheuski. 

Zgurski testified that he did not tell the investigators that 

Klimasheuski threatened him and made him participate in the banking 

scheme because he was afraid Klimasheuski would find out. According to 

Zgurski’s trial testimony, Klimasheuski was a dangerous and violent person. 

At trial, Zgurski was able to testify about his fear and Klimasheuski’s threats 

because a lot of time had passed and Klimasheuski no longer lived in the 

United States. 

III. Charged Offenses and Jury Verdicts

In September 2018, Zgurski was tried on three felony charges: willful 

use of the personal information of another person for an unlawful purpose, on 

or about January 10, 2014 (§ 530.5(a)); grand theft of Steven B.’s personal 
11

property on June 4, 2014 (§ 484); and grand theft of Michael C.’s personal 

property on June 9, 2014 (§ 484). 

The trial court instructed the jury regarding the section 530.5(a) charge

by giving a modified version of CALCRIM No. 2040, which stated: 

“Mr. Zgurski is charged in Count 1 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 was using.

“Personal identifying information means any state or federal driver’s 

license, savings account number, checking account number, date of birth, 

information contained in a birth certificate or an equivalent form of 

identification. [¶] 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, goods, services or real property 

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.” 

Shortly after deliberations commenced, the jury submitted a question 

asking if the defendant had to “be aware that Alexander [B.] is a real person

[in order] to constitute unauthorized use of personal identifying information.”

The court responded by referring the jury to CALCRIM No. 2040. The jury

submitted a follow-up question asking to see section 530.5(a) and was again 

directed to the CALCRIM instruction. About an hour later, the jury asked 
12

whether it is “relevant that the defendant KNOWS the personal identifying 

information belongs to a real person,” and requested a yes or no answer. The 

court responded that the question could not be answered that way and 

requested the jury “re-refer” to the instructions. The following day, the jury 

asked for a readback of Zgurski’s trial testimony. After deliberating for about 

a day and a half, the jury returned their verdicts. Zgurski was found guilty of 

misusing personal information but not guilty of the two grand theft charges. 

Zgurski was sentenced on December 14, 2018. The trial court reduced 

Zgurski’s conviction to a misdemeanor pursuant to section 17, subdivision (b), 

suspended imposition of sentence, and placed Zgurski on three years’ 

probation. On December 21, Zgurski filed his notice of appeal. 

In or around April 2021, Zgurski filed a trial court motion to modify the 

terms of his probation. At an April 29 hearing, defense counsel stated that 

Zgurski was seeking “early termination and deeming of the hours.” He 

requested that the court reduce the number of community services hours 

Zgurski was required to perform from 320 to 215, and that the probation 

period be reduced from three years to two years pursuant to Assembly Bill 

1950. The motion was granted after defense counsel represented to the court 

that the People did not oppose it. 

DISCUSSION

I. The Trial Evidence Supports the Verdict 

Zgurski contends the trial evidence does not support his conviction for 

violating section 530.5(a). “The role of an appellate court in reviewing the 

sufficiency of the evidence is limited. The court must ‘review the whole 

record in the light most favorable to the judgment below to determine 

whether it discloses substantial evidence—that is, evidence which is 

reasonable, credible, and of solid value—such that a reasonable trier of fact 
13

could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Ceja

(1993) 4 Cal.4th 1134, 1138.) “ ‘We presume “ ‘in support of the judgment the 

existence of every fact the trier could reasonably deduce from the evidence.’ 

[Citation.] This standard applies whether direct or circumstantial evidence is 

involved.” ’ ” (People v. Thompson (2010) 49 Cal.4th 79, 113.)

Section 530.5(a) provides: “Every person who willfully obtains personal 

identifying information, as defined in subdivision (b) of Section 530.55, of 

another person, and uses that information for any unlawful purpose . . . is 

guilty of a public offense . . . .” (§ 530.5(a).) As used in section 530.5(a), the 

word “ ‘person’ ” means a “natural person, living or deceased,” as well as a 

legal business entity. (§ 530.55, subd. (a).) “ ‘[P]ersonal identifying 

information’ ” includes “any name, address, telephone number” as well as a 

“state or federal driver’s license, or identification number.” (§ 530.55, subd. 

(b).)

The elements of this offense are: “(1) that the person willfully obtain 

personal identifying information belonging to someone else; (2) that the 

person use that information for any unlawful purpose; and (3) that the person 

who uses the personal identifying information do so without the consent of 

the person whose personal identifying information is being used.’ ” (People v. 

Bollaert (2016) 248 Cal.App.4th 699, 708–709.)

We conclude that the trial record summarized above contains 

substantial evidence establishing each of these elements. Pent’s 

investigation connected Zgurski to the Eisenberg boat fraud, which Zgurski

facilitated by opening the GV National account and using it to transfer 

money to Russia. Zgurski admitted that he wanted to make some money, so 

he obtained (from Klimasheuski) personal identifying information that did 
14

not belong to him, and he used that information to open the account and

transfer the stolen money to Russia. 

The record also shows that Zgurski did not have consent to use other 

peoples’ personal identifying information to open the GV National account.

Alexander B. testified that he does not know Zgurski, and he did not give 

Zgurski or anybody else permission to use his name to open the account. 

Also, Zgurski admitted that he does not know Alexander B., or the person 

whose driver’s license number he used, or the owner(s) of the phone numbers 

that he used to open the GV National account. These admissions are 

additional evidence that Zgurski used personal identifying information 

without the consent of the persons whose information he used.

On appeal, Zgurski does not address the elements of a section 530.5(a) 

offense that we outline above. Instead, he contends: (1) section 530.5(a) 

requires the prosecution to prove that the defendant knew that the personal 

identifying information he or she used belonged to a real person; and (2) this 

alleged element has not been proven by substantial evidence. 

The first part of Zgurski’s argument presents a question of statutory 

construction. “We begin with the plain language of the statute, then look to 

the statute’s purpose, legislative history, public policy, and statutory scheme 

to ‘ “ ‘ “select the construction that comports most closely with the apparent 

intent of the Legislature, with a view to promoting rather than defeating the 

general purpose of the statute, and avoid an interpretation that would lead to 

absurd consequences.” ’ ” ’ ” (People v. Weir (2019) 33 Cal.App.5th 868, 871

(Weir).)

The plain language of section 530.5(a) requires the use of personal 

identifying information belonging to “another person” (id.), and the statutory 

definition of a “ ‘person’ ” establishes that the other person must be real
15

(§ 530.55, subd. (a)). But section 530.5(a) does not state or imply that the 

defendant must affirmatively know that his victim is a real person. 

Disputing this fact, Zgurski argues that the word “willfully” in section 

530.5(a) is synonymous with the word “knowingly,” and, therefore, the 

defendant must know that the personal identifying information he misused

belonged to a real person. 

Our Legislature has found that “[t]he word ‘willfully,’ when applied to 

the intent with which an act is done or omitted, implies simply a purpose or 

willingness to commit the act, or make the omission referred to. It does not 

require any intent to violate law, or to injure another, or to acquire any 

advantage.” (§ 7, subd. (1).) Thus, our Supreme Court has held that the 

“ ‘terms “willful” or “willfully,” when applied in a penal statute, require only 

that the illegal act or omission occur “intentionally,” without regard to motive 

or ignorance of the act’s prohibited character.’ [Citations.] ‘Willfully implies 

no evil intent; “ ‘it implies that the person knows what he is doing, intends to 

do what he is doing and is a free agent.’ ” ’ ” (People v. Atkins (2001) 25 

Cal.4th 76, 85.) Moreover, “the word ‘willfully’ in a penal statute usually 

defines a general criminal intent, absent other statutory language that 

requires ‘an intent to do a further act or achieve a future consequence.’ ” 

(Ibid.)

Consistent with this governing authority, courts construing section 

530.5 have concluded that the word “willfully” in section 530.5 connotes only 

a purpose or willingness to commit an act. (In re Rolando S. (2011) 197 

Cal.App.4th 936, 941 [defendant willfully obtained another person’s password 

that he retained after it was sent to him in an unsolicited text message].) In 

other words, the defendant’s conduct must be intentional, not accidental. The 

defendant must know what he or she is doing in the sense that his or her 
16

actions must be volitional. (People v. Lee (2017) 11 Cal.App.5th 344, 356 [use 

of the word “willfully” implies “ ‘no evil intent but means the person knows 

what he or she is doing, intends to do it and is a free agent’ ”].) But we reject 

Zgurski’s contention that the use of the word “willfully” in section 530.5 

requires affirmative proof that the defendant knew that the personal 

identifying information he or she willingly obtained and willingly used 

belonged to a real person.

Nor are we persuaded by Zgurski’s contention that his interpretation of 

section 530.5(a) furthers its legislative purpose. “[T]he purpose of section 

530.5, subdivision (a) is to criminalize the willful use of another’s personal 

identifying information, regardless of whether the user intends to defraud 

and regardless of whether any actual harm or loss is caused.” (People v. 

Johnson (2012) 209 Cal.App.4th 800, 818 (Johnson).) Importantly, this 

offense is distinguished from theft offenses because it involves a distinct 

victim and a distinct goal, as it “protects the person whose information was 

obtained rather than the person whose property was taken.” (Weir, supra, 33 

Cal.App.5th at pp. 875–876, italics omitted; see also People v. Jimenez (2020) 

9 Cal.5th 53, 64–65 (Jimenez).) 

Grafting a knowledge requirement onto section 530.5 would impede its

purpose by limiting the protective reach of this law. After all, a person whose 

personal identifying information has been used for an unlawful purpose 

suffers harm whether or not the prosecutor can garner affirmative proof that 

the defendant knew that his or her victim was a real person. In enacting 

section 530.5 to remedy this harm, “ ‘the Legislature rationally appears to 

have concluded that willfulness, when coupled with use for an unlawful 

purpose, provides a sufficient mens rea for the offense.’ ” (Johnson, supra, 

209 Cal.App.4th at p. 818; see also Jimenez, supra, 9 Cal.5th at p. 63 
17

[“ ‘gravamen of the . . . offense is the unlawful use of a victim’s identity’ ”].) 

“ ‘The judiciary ordinarily has no power to insert in a statute an element the 

Legislature has omitted [citation]’” [citation]; where, as here, the statute has 

an appropriate mens rea requirement, “no reason appears . . . to warrant 

departure from this rule.” ’ ” (Johnson, at p. 63.) 

Zgurski purports to rely on the legislative history of section 530.5,

contending that the Legislature repeatedly expressed its intent to proscribe 

the “willful use of personal information of another person.” But, as we have

discussed, Zgurski misperceives the meaning of the word willful. Tellingly, 

Zgurski does not cite any evidence in the legislative history supportive of his 

notion that the Legislature intended to punish only those defendants who 

affirmatively knew they were using the identity of a real person. Zgurski 

contends that the legislative history reveals a legislative purpose “to protect 

those individuals whose identity has been stolen,” without acknowledging 

that this purpose is hindered, not advanced, by interposing the knowledge 

requirement for which he advocates.

Zgurski also relies on cases construing other statutes, but these do not 

alter our conclusion. In re A.L. (2019) 38 Cal.App.5th 15 was an appeal in a 

wardship proceeding where the minor was found to have violated three laws 

by resisting uniformed officers who broke up a fight between the minor and 

her sister: section 243, subdivision (b) (battery on a peace officer); section 69

(resisting a peace officer by force); and section 148, subdivision (a)(1) (section 

148(a)(1)) (resisting a peace officer). The first two statutes contain express 

knowledge requirements, while section 148(a)(1) applies to “[e]very person 

who willfully resists, delays, or obstructs” an officer “in the discharge or 

attempt to discharge any duty of his or her office or employment.” Reasoning 

that “[w]illfully is most naturally read as synonymous with knowingly,” the 
18

A.L. court construed section 148(a)(1) as requiring “that a defendant have 

actual knowledge he or she is resisting an officer in the performance of duty.” 

(A.L., at p. 22.)

A.L. has been criticized for relying on cases that do not support its 

construction of “willfully” and for failing to apply rules of statutory 

construction refuting that section 148(a)(1) requires actual knowledge (see 

People v. Mackreth (2020) 58 Cal.App.5th 317, 333–334), but we need not 

resolve that dispute. It is enough to note that A.L. involved a materially 

different crime, and we decline to adopt its reasoning when interpreting 

section 530.5(a). 

Zgurski also relies on People v. Davis (2005) 126 Cal.App.4th 1416, in 

which the defendant was convicted of failing to report abuse, or suspected 

abuse, of a dependent adult. Affirming the judgment on appeal, the Davis

court construed a statute differentiating between failure to report abuse and 

willful failure to do so. (Id. at pp. 1435–1436.) In that context, the court 

observed that when a criminal statute penalizes the “failure to perform a 

legally imposed duty,” the use of the word “willful” to describe the intent 

element of the crime “denotes a requirement of proof that the defendant knew

of his duty to act.” (Id. at p. 1436.) The logic behind this principle is that “a 

failure to act cannot be intentional or purposeful unless the defendant knew 

he was under a duty to act.” (Ibid.) This principle has no application here, 

where Zgurski was not penalized for failing to perform a legally imposed

duty.

Finally, Zgurski relies on Flores-Figueroa v. U.S. (2009) 556 U.S. 646 

(Flores-Figueroa), which involved a federal identity theft statute. In that 

case, the defendant presented his employer with counterfeit social security 

and alien registration cards that contained his real name along with
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identification numbers that belonged to other people. He was convicted of

several immigration-related offenses, including aggravated identity theft in 

violation of 18 U.S.C. § 1028A(a)(1). (Id. at p. 649.) That statute provides for 

an enhanced prison sentence when, during the commission of a predicate 

crime, the defendant “ ‘knowingly transfers, possesses, or uses, without 

lawful authority, a means of identification of another person.’ ” (FloresFigueroa, at p. 648, quoting 18 U.S.C. § 1028A(a)(1).) 

The Flores-Figueroa defendant challenged his identity theft conviction 

on the ground that he did not know that the identification numbers that 

appeared on his identification cards belonged to real people. (FloresFigueroa, supra, 556 U.S. at p. 649.) The Government argued no such proof 

was required because “ ‘knowingly’ ” in the statute did not modify “ ‘another 

person.’ ” (Id. at p. 650.) The Supreme Court disagreed, holding that the 

statute “requires the Government to show that the defendant knew that the 

means of identification” that he or she unlawfully used, in fact, “belonged to 

another person.” (Id. at p. 657.) The Court based its conclusion on “ordinary 

English grammar,” reasoning that “where a transitive verb has an object, 

listeners in most contexts assume that an adverb (such as knowingly) that 

modifies the transitive verb tells the listener how the subject performed the 

entire action, including the object as set forth in the sentence.” (Id. at 

p. 650.) The Court acknowledged the difficulties of proof attendant to the 

statute’s knowledge requirement (id. at pp. 654–655), but concluded that 

“concerns about practical enforceability are insufficient to outweigh the 

clarity of the text.” (Id. at p. 656.) 

In contrast to the federal identity theft statute, section 530.5 does not 

contain the word “knowingly” or any other language clearly imposing a 

requirement that the defendant must know he or she victimized a real 
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person. Unlike “knowingly,” the word “willfully” in section 530.5(a) implies 

“a purpose or willingness to commit the act,” not knowledge of its 

wrongfulness or intent to injure a real person. (See § 7, subd. (1).) It is not 

the language of section 530.5(a) but a separate section of the code that 

imposes the requirement that the personal identifying information belong to 

a real person. (See § 530.55(a).)

In sum, Zgurski is mistaken that the prosecution must prove, not only 

that the personal identifying information belonged to a real person, but that 

the defendant knew the information belonged to a real person. Because 

Zgurski’s interpretation of section 530.5(a) is erroneous, his first claim of 

error fails, whether or not he knew Alexander B. was a real person. 

Zgurski also makes the separate claim there is no evidence that the 

Alexander B. who testified at trial is the person whose name Zgurski used to 

open the GV National account. Contending that his conviction cannot be 

affirmed without evidence connecting him to this particular Alexander B., 

Zgurski reasons that many people could have that name, and he could have 

obtained consent to use the personal identifying information of some other 

Alexander B.

We reject this alternative argument because there is substantial 

evidence that the Alexander B. who testified at trial is the man whose 

personal information Zgurski used. Inspector Pent located this particular 

witness because he was connected to an FBI investigation of another fraud 

scheme involving Klimasheuski, the man who Zgurski admits told him to 

open the GV National account in Alexander B.’s name. Klimasheuski’s 

connection to this particular Alexander B. supports an inference that he is 

the Alexander B. whose identity was used without his consent in the present 

case.
21

Furthermore, when Pent interviewed Zgurski, she told him that 

Alexander B. is a real person who was angry that Zgurski used his name. In 

response to this information, Zgurski did not claim that he had used the 

name of a different Alexander B. or that he thought that the name he used 

was fictitious. Instead, he acknowledged that he does not actually know the 

person whose name he used to open the account. Zgurski changed his story

at trial, claiming that Klimasheuski told him that Alexander B. was a madeup name. This material change in Zgurski’s story is evidence from which the 

jury could have concluded that Zgurski’s trial testimony was untrue. In 

conducting our substantial evidence review, we “must be ever cognizant that 

‘ “ it is the exclusive province of the . . . jury to determine the credibility of a 

witness and the truth or falsity of the facts upon which a determination 

depends . . . .” ’ ” (People v. Barnes (1986) 42 Cal.3d 284, 303.)

Finally, when Alexander B. testified at trial, the prosecutor asked 

whether he had suffered any consequences as a result of the fact that his 

identity was used by Zgurski to open the GV National account. Alexander B. 

responded that the State of California attempted to collect back taxes from 

him for the 2013–2014 tax period because of the “business that was opened in 

my name.” As the defense elected not to cross-examine Alexander B. about 

any matter, his undisputed testimony is additional evidence that he is the 

man whose personal identifying information was used to open the GV 

National account. We thus conclude that substantial evidence supports 

Zgurski’s conviction.

II. Modification of the Probation Term Is Not Required

As noted, the trial court reduced Zgurski’s felony conviction to a 

misdemeanor and sentenced him to three years’ probation. In this court, the 

parties agree that Zgurski is entitled to the benefit of a 2021 amendment to 
22

section 1203a, which generally limits the maximum probation term for a 

misdemeanor conviction to one year. (Stats. 2020, ch. 328, § 2, eff. Jan. 1, 

2021; see e.g. People v. Quinn (2021) 59 Cal.App.5th 874, 883.) However, the 

parties appear to disagree about whether a remand is required so that the

trial court can rule on the matter. We need not decide because on April 29, 

2021, the trial court granted Zgurski’s motion to reduce his probation term to 

two years and to terminate it. Since Zgurski has completed his sentence, he 

concedes in his reply brief that the part of his appeal challenging the length 

of his probation term is now moot. (People v. DeLeon (2017) 3 Cal.5th 640, 

645.) 

By contrast, Zgurski’s claim that his conviction is invalid is not mooted 

by the fact that he has completed his sentence. (People v. DeLong (2002) 101 

Cal.App.4th 482, 487 [defendant’s interest in “clearing his name” permits 

review even after sentence has been served, italics omitted].) We reject that 

claim because Zgurski’s conviction for violating section 530.5(a) is supported 

by substantial evidence.

DISPOSITION

The judgment is affirmed.

TUCHER, P.J.

WE CONCUR:

FUJISAKI, J.

PETROU, J.

People v. Zgurski (A160525)
23

Trial Court: City and County of San Francisco Superior Court

Trial Judge: Hon. Linda Colfax

Counsel: Gene D. Vorobyov, by appointment of the Court of Appeal 

for Defendant and Appellant

Rob Bonta, Attorney General of California, Lance E. 

Winters, Chief Assistant Attorney General, Jeffrey M. 

Laurence, Senior Assistant Attorney General, Donna 

M. Provenzano, Supervising Deputy Attorney General, 

David H. Rose, Deputy Attorney General for Plaintiff

and Respondent 

People v. Zgurski (A160525)