Check fraud is a common crime outlined under California Penal Code 476. This crime has become more prevalent with the advancement of technology. According to PC 476, it is a crime for any person to make, possess, or use a check with the specific intent to defraud someone else. This severe offense can attract a lengthy jail term and hefty fines. You should consult an experienced attorney immediately if you face check fraud charges. At the California Criminal Lawyer Group, we have aggressive criminal defense attorneys who will help you create a convincing defense strategy to fight your charges in Fresno.
Check Fraud Under California Law
If the prosecutor accuses you of check fraud, Penal Code 476 requires that he/she prove the following elements:
- You made, possessed, or used a false, altered, or fictitious check for the payment of money or property.
- You knew that the check was false or altered.
- You performed the act with intent to defraud.
The prosecutor must also prove the following for you to face possession of a false check charge:
- When you possessed the check,
- You intended to use or pass the check as genuine.
According to California law, a fake or fictitious check is illegal or not real. This kind of check includes:
- A check endorsed by a non-existent individual.
- A check drawn from the bank that does not exist.
Intent To Defraud
You can only be guilty under PC 476 if you intend to defraud. You could have intent to defraud if you intend to trick or deceive someone else. You do not need to defraud or make another person suffer a loss because of your acts for check fraud charges to apply. The court will only consider your fraudulent intent.
Use, Pass, Or Alter
According to PC 476, you use, pass, or try to use or pass a check if you represent it to another person as if it is genuine. You could make the representation by conduct or words, and the presentation could be direct or indirect. On the other hand, you could alter a check by doing any of the following:
- Changing a section of the check.
- Erasing something on the check or
- Adding something to it.
Money Order And Cashier’s Check Fraud
Penal Code 476 also covers money orders, transfer services, and cashier’s checks. Like a bank, a cashier’s check is drawn on a financial institution's account. The check is usually used to pay for goods or services. It is written to a specific person or business. You can also use a cashier’s check for wire transfers.
Like a check, a money order is also effective but is always prepaid instead of being drawn from a bank account. You can purchase a money order from most post offices, check-cashing businesses, and some grocery stores.
Typically, you cannot face charges under PC 476 if the instrument you used or passed off was false and no one could take it seriously. According to PC 476, you cannot face charges for simple falsity unless the fraudulent or false check appears to be one that someone could be tricked or defrauded by. This crime necessitates that the instrument is false and something a reasonable person can take seriously.
Penalties For Violating Penal Code 476
A violation of PC 476 is a wobbler offense. You could, therefore, face misdemeanor or felony charges depending on your criminal history and the circumstances surrounding your case. If the judge charges you with a misdemeanor, you could face the following penalties:
- A fine that does not exceed $1,000.
- A jail term that does not exceed one year in a county jail.
According to Prop. 47, felony charges can only apply if the check amount exceeds $950 and you committed some form of identity theft. For example, you could use someone else’s Social Security Number or other confidential details while trying to present or pass the check.
The following factors could also attract felony charges:
- If you are a registered sex offender or have any prior convictions for severe violent felonies,
- If you have at least two or more prior charges for petty theft on the grounds of forgery PC 470 or bad checks under PC 476(a),
- If you have at least two or more prior charges for forgery,
Additionally, you will be charged with a wobbler crime regardless of the check amount if the law requires you to register as a sex offender or if you have a criminal record of a severe violent felony.
The possible penalties you could face for felony charges include:
- A fine that does not exceed $10,000.
- A jail term that does not exceed three years in a county jail.
Other Felony Penalties
You will serve a probation sentence of up to three years and a jail term of one year if the court grants you probation. However, you could face a jail term of 16 months, two years, or three years under the state’s new sentencing guidelines if the court denies you probation.
The court could also order you to attend a check diversion program rather than a jail term. The court could dismiss your charges once you complete the program and pay restitution.
You could also face felony charges for an attempted PC 476 violation even if you failed to secure the goods, services, or money you intended. In this case, you will face half the jail term of what you would have served had you successfully executed the offense, according to PC 664.
Check Fraud Charge And Gun Rights
A charge under PC 476 could negatively affect your gun rights. According to California law, any convicted felon cannot acquire, own, or possess a gun. Therefore, if you face felony check fraud and the court convicts you, you could lose your right to buy, own, or possess a gun.
Check Fraud And Immigration Repercussions
You could face negative immigration consequences if you are a non-citizen convicted of check fraud. According to immigration law, certain criminal charges could lead to the deportation of an alien, and an immigrant could be marked as inadmissible in the United States.
Expungement Of Check Fraud Charges
You can file for a conviction record expungement if you are convicted of check fraud. This could only be possible if you successfully serve your probation or jail term, whichever the court imposes. At the judge's discretion, he/she could agree to delete your record even if you violate the probation conditions.
An expungement under PC 1203.4 releases you from the consequences and disabilities of your conviction. For example, you can comfortably deny being previously convicted of any criminal offense if someone asks whether you have a criminal record. After an expungement, the conviction will not show up on your background check results. You will not face stigmatization when applying for jobs or seeking tenancy. For example, when a potential employer performs a background check, the expunged conviction will not appear in the search results.
Defenses For Check Fraud Charges
You can present a solid defense to challenge your check fraud charges with the help of your criminal attorney. The common defenses you could use include:
You Did Not Know That The Check Was Fake
Sometimes, you could cash a check that another person passed you while unaware it was fake. In this case, your attorney could argue that the person from whom the check originated should be responsible for the crime. Your attorney will conduct an in-depth investigation and reveal any injustice against you if he/she has the skills and knowledge to resolve false allegation cases.
Insufficient Evidence
Your attorney could also point out insufficient evidence proving you committed check fraud. The prosecutor can fail to show that you were indeed the person who altered, falsified, faked, or forged the check. He/she could also claim that you were an identity theft victim. However, this defense only applies depending on the circumstances surrounding your charges. Your attorney needs to provide convincing evidence to support this defense. A competent attorney will review your criminal record and financial records to ascertain if there are any significant or subpoena witnesses to testify in your favor.
False Accusation
Many PC 476 violation charges result from complicated legal or business dealings. Check fraud accusations also usually arise in workplace settings. It is common for people to accuse you of check fraud to cover up their violations. If this happens in your case, your attorney could claim you are the victim of a false accusation.
You Believed You Had Sufficient Money In Your Account
You could face check fraud charges if you attempt to cash a higher check amount than the available amount in your bank account. You could, for example, cash out $500 if your bank account balance is $100. In this situation, you could face charges under PC 476 if you knew that your bank account did not have sufficient money to allow you to cash out $500. Your attorney can present this defense if you believe your bank account had the $500. You could have withdrawn money some time ago and failed to track your account balance. If your attorney convinces the judge that you did not know you had insufficient money, the judge could dismiss your charges.
The Check Was Fake, But No One Would Take It Seriously
The judge could drop your charges if your attorney provides evidence that any reasonable person would have ruled that the check you used was fake. You can only face charges if the prosecutor proves that, although the check was forged, another person would not take it seriously. For example, a reasonable person cannot take a check inscribed on a cloth as seriously even if you attempted to cash it. The check is required to be written in such a manner that another person can be defrauded by it.
Coerced Confession
A coerced confession usually occurs if you are accused after a confession. The law prohibits the police from using overbearing measures to force a confession out of a suspect. If you can provide evidence showing that the police coerced you into confessing to violating PC 476, the court could remove your confession from the evidence. The court could also dismiss your charges if the police pressured you into confessing to check fraud charges.
Lack Of Knowledge
If you had knowledge of the check’s nature as false, fake, or altered, you could face charges under PC 476. However, if you did not know that the check you presented was fake, you are not guilty of violating this statute. You could have accidentally possessed the alleged false, altered, forged, or fake check.
You Believed You Had Permission To Alter The Check
It is a crime under PC 476 to alter a check. However, you cannot face charges if you acted with the responsible person’s consent or had permission from someone accountable for the check. The liable person could also have uttered a statement that made you believe that he/she had given you the mandate to alter the check. If this is so, your attorney could claim that you altered the check because you believed you had that authority.
You Had No Fraudulent Intent
You can only face charges under PC 476 if you intend to defraud someone else. You have a legal right to claim that you lacked the required intent. You could have presented the fake check accidentally or falsified the check to prank someone else. If this is true and you succeed in convincing the judge, the judge can dismiss your charges. However, you could face check fraud charges if you passed a forged, fake, or altered check to trick someone else into believing it was genuine.
You cannot claim that you forged or altered a check but did not pass it on to someone as a valid defense. You could face check fraud charges by simply possessing a fake check. Additionally, provided you knew the check’s nature was false, you could be guilty even if another person did the altering. You could also face charges even if you felt remorseful and paid restitution to the person you defrauded. Remorse and restitution could qualify as a mitigating factor for sentencing purposes, but it does not justify the offense.
Related offenses
Several offenses are related to check fraud, meaning that you could face charges for the offenses alongside check fraud or in place of check fraud. Some of the crimes charged alongside PC 476 include:
Writing Bad Checks — Penal Code 476a
Writing or passing a bad check is a crime under PC 746a. If the prosecutor accuses you of writing bad checks, he/she must prove that:
- You intentionally made, used, or drew a check order for the payment of money.
- There were insufficient funds to cover full payment of the check when you made, used, or drew.
- You were aware that there was not enough money in the account.
- When you acted, you intended to defraud.
You could face misdemeanor charges for violating PC 476a if the following is true:
- You do not have certain prior charges.
- The bad checks were worth $950 or less.
In other situations, a violation of PC 476a could be charged as a wobbler. In this case, you could face misdemeanor or felony charges. If the judge charges you with a misdemeanor, you could face the following penalties:
- A fine that does not exceed $1,000.
- A jail term that does not exceed one year in a county jail.
If the judge charges you with a felony, you could face the following penalties:
- A fine that does not exceed $10,000.
- A jail term that does not exceed three years in a county jail.
Apart from the above penalties, the victim can sue you in civil court to recoup the total amount of the check. The victim can also ask the court to order you to pay them a fine that does not exceed $1500 for damages.
The defenses you could present to challenge your PC 476a charges include:
- You informed the victim regarding insufficient funds.
- You post-dated the check.
- You had no intent to defraud.
- You are a victim of police illegal search and seizure.
Forgery — Penal Code 470
The offense of forgery is defined under Penal Code 470 as falsifying a signature or seal. This law makes it a crime for you to do the following:
- Sign the name of a fictitious person or another person.
- Forge or counterfeit the seal or another person’s handwriting.
- Falsify, corrupt, or alter any record of any legal will, judgment, or codicil.
- Forge, alter, falsely make, or counterfeit certain documents like money orders, bonds, and checks.
Examples of acts of forgery include:
- Endorsing a check made out to another person without consent from that person.
- Inserting a page in someone else’s will intentionally to get more money.
- Using another doctor’s name when writing a fake prescription.
For you to face forgery charges, PC 470 requires that he/she prove these elements:
- You falsified, forged, altered, or counterfeited a signature or seal.
- You executed the act with the intent to defraud.
A violation of PC 470 is generally charged as a wobbler. You could, therefore, face misdemeanor or felony charges. You can only face misdemeanor charges if:
- The forged document is a money order, a check, or a similar instrument.
- The instrument amounts to $950 or less.
Misdemeanor charges attract the following penalties:
- A fine that does not exceed $1,000.
- A jail term that does not exceed one year in a county jail.
- Summary or misdemeanor probation.
Felony charges, on the other hand, attract the following penalties:
- A fine that does not exceed $10,000.
- A jail term that does not exceed three years in a county jail.
- Formal or felony probation.
However, you could raise the following defenses to contest your forgery charges:
- The law enforcement coerced you into confession.
- You were falsely accused.
- You had no intent to defraud.
- You are a victim of illegal search and seizure.
Grand Theft — Penal Code 487
Grand theft is defined under PC 487 as stealing more than $950 worth of real property, personal property, labor, or money. Stealing property worth $950 is charged as petty theft. Grand theft constitutes stealing another person’s property directly from their person or stealing a gun or vehicle regardless of its value.
If you face charges for violating PC 487, the prosecutor should prove beyond a reasonable doubt that:
- You took possession of another person’s property.
- You took the property without the owner’s permission.
- When you took the property, you intended to deprive the owner of the property permanently.
A violation of PC 487 is always charged as a wobbler. You could face misdemeanor or felony charges depending on your criminal record and the circumstances surrounding your case. Misdemeanor charges attract a jail term that does not exceed one year in a county jail. Felony charges, on the other hand, attract the following penalties:
- A jail term of 16 months, two years, or three years in a county jail.
- Felony probation with up to one year of a county jail term.
Additionally, you could face felony charges if you commit grand theft of a gun. In this case, the possible penalties you could face include a jail term of 16 months, two years, or three years in a state prison.
The defenses you could use to challenge grand theft charges include:
- You are a victim of false accusation.
- The owner permitted you to take the property.
- You secured the property under a claim of right.
- You did not intend to defraud.
Find A Criminal Defense Attorney Near Me
Check fraud is a severe offense under California law whose consequences can be devastating. The potential penalties include jail time, hefty fines, and paying restitution to the victim. If you face check fraud charges, you should contact an experienced attorney to help create a defense to fight your charges. At the California Criminal Lawyer Group, we have helped many clients fight check fraud charges in Fresno with outstanding results. Our aggressive lawyers will create a solid defense to negotiate for a favorable outcome for your case. Contact us at 559-712-8377 to speak to one of our attorneys.
