The crime of check fraud has recently been prosecuted with much more frequency. Because of the availability of advanced yet affordable technology, including publishing software, scanners, and computers, check fraud has become one of the most prominent types of fraud nationwide. As described under California Penal Code 476, check fraud happens when someone makes, possesses, uses, passes, or tries to use an altered or false check for payment of property or money. Being convicted of check fraud in California will subject you to severe penalties. You should immediately contact a skilled criminal defense lawyer.
At Los Angeles Criminal Attorney, we have handled thousands of fraud cases, check fraud included, and have the qualifications and experience to help you effectively. We understand that facing criminal charges can be stressful, but you do not have to endure the stress alone. We will help you take control of the situation and regain your freedom as soon as possible. Contact us as soon as you have been arrested for legal advice, free initial consultation, and case review. Also, the earlier you call us, the ample time we will have to develop a winning defense strategy.
Overview of Check Fraud
The check fraud offense is criminalized under PC 476. This Penal Code Section states that you are guilty of check fraud if the prosecutor proves all of the elements of this crime beyond any reasonable doubt. The elements are:
You made, passed off, possessed, attempted to pass or make a forged, fake, or counterfeit, altered check.
You were aware the check was altered, faked, or forged.
You aimed to defraud an organization, company, or someone.
By presenting the check as genuine or real (if charged with possessing a falsified, fake, or forged check).
Defining An Altered Check
Altering a check to make it look genuine indicates an intent to defraud another party by changing, erasing, or adding the routing number, amount, date, or any other information to the check. By engaging yourself in these actions, you are converting the instrument’s legality, so its original characteristics are changed.
Defining a Fictitious, False, or Fake
A fake check might look more genuine than an altered one, but it is one signed by a party that is non-existent or references a bank that is non-existent (a fictitious person or bank). Presenting an otherwise legal check but referencing a closed bank account is still a crime but not prohibited under PC 476. This act is instead criminalized under a different check fraud law. Most cases touch situations where the suspect forges another person’s signature onto the check.
Defining Fraudulent Intention
Your intention is material under the check fraud law. You show fraudulent intent if you willfully or purposely aim to defraud an entity or another person or deceive/trick them to gain an advantage from them, such as services, goods, or funds. You need not have received the funds, goods, or services from the party you meant to defraud to meet this element of 476 PC. What counts is you had a fraudulent intention.
The Meaning of Passing the Check as Genuine or Real
Presenting a fraudulent check knowing it has been altered or is fake is what the prosecutor requires to charge you with check fraud or show guilt. Any statements or representation you make through conduct/words to show the check is genuine or real, whether indirect or direct, is enough for a conviction.
Money Order and Cashier's Checks Fraud
California check fraud law also covers cashier's checks, money transfer services, and money orders. A cashier's check is a type of check drawn on a financial institution’s account, for example, a bank. The check is made out to a specific business or person and is usually used to pay for services or goods. A cashier's check can also be used for wire transfers.
A money order is effectively similar to a check, but rather than being drawn on a bank account, it is prepaid. You can buy a money order at some grocery stores, check cashing businesses, and most post offices.
Note that you cannot be sentenced for check fraud if the instrument you passed off or used was evidently false and no one could take it seriously. The law states that unless the fake or fraudulent check appears to be one that a party may be defrauded or tricked by, the simple falsity of the writing cannot sustain a conviction for check fraud. In essence, this offense necessitates that the instrument is not only false/fake but also something that a reasonable person would take seriously. For example, using a 'check' inscribed on a napkin will not suffice.
And if the case facts permit it, the prosecutor can lower the check fraud charge against you to an attempted PC 476 violation. According to California 664 PC, an unsuccessful attempt to perpetrate an offense punishable by imprisonment will attract a sentence that is half the prison term of the completed crime. If, for example, the incarceration period for a completed offense upon a conviction is five years in prison, the attempted version would result in a prison sentence of two and a half years.
Defending Against PC 476 Violation Charges
With the help of your criminal defense lawyer, you can mount a solid defense to challenge the check fraud charge against you. Common defenses your legal counsel can present are:
No Fraudulent Intent
You are only guilty of PC 476 violation if you had intended to defraud the victim. Thus, it is legal to assert that you lacked the required intent. For example, it could be that you falsified the check just to prank the victim or altered the check accidentally. If that is the case, the judge should not find you guilty. However, you could be guilty if you passed an altered, fake, or forged check to categorically trick the victim into trusting it was legitimate.
You Had Consent or Reasonably Believed You Had the Authorization to Alter the Check
Although it is an offense under 476 PC to alter a check, the judge should not convict you if you acted with consent and had this consent from the person or entity accountable for the bill or check. Consent is, therefore, always a legal defense.
The person or entity accountable for the check may also have said something that made you believe they have authorized you to alter the check. If that is the case, your lawyer can argue that you altered the check because you had reason to believe you had that power.
Lack of Knowledge About the Check’s Nature as False, Altered, or Forge
You are only guilty of violation 476 PC if you knew of the check’s nature as altered, fake, or false. You are, therefore, not criminally liable if you lack this prior knowledge. For example, it could be that you accidentally came to possess the fake, forged, altered, or false check in question.
Coerced Confession applies to a case where the defendant was accused after a confession. The state's law provides that law enforcement officers may not apply overbearing measures to force a confession out of a suspect.
If you can prove that law enforcement officers coerced you into confessing to the check fraud offense, the judge can exclude the confession from evidence. Alternatively, they may drop the case altogether if you were pressured into admitting to a violation you did not commit.
No One Would Take the Check Seriously Since It Was Obviously Fake
If your lawyer can prove that any reasonable party would have ruled the check you had or used as fake, the judge or jury should not find you guilty. The prosecutor must prove that although the check was fake or forged, it was also an instrument someone would take seriously. For example, no one would take a 'check' inscribed on a cloth as seriously if you tried to cash it. The check must be of the nature that someone can be defrauded by it.
You Reasonably Believed You Had Overdraft Protection or There Were Enough Funds In Your Account
You are guilty of check fraud if you try cashing a higher check amount than the actual amount in the bank account. For example, suppose you cash one hundred thousand dollars, but your bank account balance reads ten thousand dollars. In that case, you will be guilty of check fraud if you knew your bank account could not allow you to cash a hundred thousand dollars.
But if you believed your bank account had a hundred thousand dollars, your lawyer can argue this defense. It could be that you withdrew cash some time back and did not keep track. If your lawyer can prove that you honestly believed you had 100,000 dollars in your bank account by the time you made your withdrawal, the judge should not find you guilty of a 476 PC violation.
Most PC 476 violation charges result from complex legal or business dealings. Check fraud allegations also often arise in workplace settings. Considering this, it is not unusual for someone to falsely accuse another of check fraud to try and cover up their guilt. If that happened in your case, your lawyer could argue that you were unjustly blamed.
If you tried to cash a check that someone passed to you and did not know it was fake and then were charged with check fraud, your lawyer could argue that you are not the one who should be found guilty but the party from whom the check originated. If your lawyer has the skills and knowledge to resolve false accusation cases, they will conduct an in-depth investigation and unearth any injustices against you.
Your lawyer can also argue other legal defenses like insufficient evidence. For example, the prosecutor may fail to demonstrate that you were indeed the party that forged, faked, falsified, or altered the check. They could also argue that you were an identity theft victim.
These legal defenses apply based on the facts surrounding the case. Your lawyer should submit any legal evidence available in support of these defenses. An experienced lawyer would check your criminal record, review your financial records to see if they will find anything substantial, subpoena witnesses to testify in your favor, and contest the prosecution's evidence to obtain the best possible outcome for your case.
Note that you cannot argue that you merely altered or forged the check but did not pass it to anybody as a legitimate defense. Simply possessing the check is enough to find you guilty. Additionally, it does not matter if another person did the altering, provided you knew of the check’s nature as false and possessed it. It also suffices for PC 476 violation purposes to have a forged or falsified blank check, and you were aware of it.
Also, whether you felt remorseful and proceeded to pay restitution to the entity or person you defrauded does not qualify as a legal defense. It could be eligible as a mitigating factor for sentencing purposes, but it does not justify the violation.
Penalties for 476 PC Violation
Violating check fraud law is categorized as a wobbler crime. A wobbler crime is one which the prosecutor has the discretion to prosecute either as a felony or misdemeanor based on the case facts and the accused’s criminal history. Under Prop. 47, felony charges are only possible if the check amount in question is above 950 dollars and you committed some form of identity theft. For example, you appropriated another person’s Social Security Number or other confidential info when attempting to present or pass the check.
Other Ways You May Attract Felony Charges.
If you have at least three priors for forgery.
If you have at least three priors for petty theft on the grounds of forgery 470 PC or bad checks per 476(a) PC.
Any prior for a severe violent felony, or if you are a registered sex offender.
Additionally, if the law requires you to register as a sex offender or you have a criminal record of a severe violent felony, you will face wobbler charges irrespective of the check amount.
The consequences of a misdemeanor violation of check fraud law are up to a year in jail and a maximum fine of one thousand dollars, while those of a felony conviction are:
If the judge grants probation, you will serve a probation sentence of up to three years and a jail sentence of one year. And if the judge does not grant probation, you will be subject to sixteen months, two or three years in jail under the state's new sentencing guidelines, or ‘Assembly Bill (AB) 109 Realignment.’ This means a felony check fraud conviction no longer leads to a prison sentence.
A maximum fine of ten thousand dollars.
If the conviction was for attempted PC 476 violation and you did not obtain the intended money, goods, or services, you will face half the sentence of what you would have faced had you completed the crime, per Penal Code 664.
Potential check diversion program instead of a jail term, if available. Once you complete the program and pay restitution, the court will dismiss your charges.
Immigration Consequences of Violating Check Fraud Law
Being convicted of check fraud may negatively affect your immigration status if you are not a U.S citizen. The U.S immigration law provides that particular criminal convictions may result in the deportation of an alien, or they could be marked inadmissible. California courts have ruled that forgery, which the crime of check fraud revolves around, is grounds for inadmissibility and deportation. Therefore, based on the specific case facts, a PC 476 violation can result in a detrimental immigration outcome.
Expunging a Conviction Record
If convicted of check fraud, you are eligible for a conviction record expungement on condition that you successfully serve your jail sentence or probation term, whichever the judge imposed. Should you violate any probation term or condition, the judge could still agree to expunge your record, although at their discretion.
According to 1203.4 PC, expunging any conviction record will release you from almost all disabilities and repercussions of the conviction. For example, you can comfortably answer ‘no’ if someone asks you whether you have previously been convicted of a crime.
A Check Fraud Conviction’s Effect on Gun Rights
Being convicted under PC 476 may adversely affect your firearm rights. Per the state’s law, any convicted felon is prohibited from possessing, owning, or acquiring a firearm. Therefore, if the prosecution charges you with felony check fraud and you are eventually convicted of the same, you will forfeit your right to possess, own, or purchase a gun.
Crimes Related to PC 476 Violation Charges
Three crimes are related to the check fraud offense because they share various elements. Due to this relationship, the prosecutor can opt to charge one of these crimes alongside or instead of PC violation. These offenses are:
PC 476(a), Writing Bad Checks
Under 476(a) PC, writing a bad check is a criminal offense. You commit this crime by writing or passing a check knowing there is no sufficient money to pay that check. Whereas 476(a) PC involves checks and inadequate funds, 476 PC pertains to forging checks.
Writing bad checks is charged as a misdemeanor violation if the bad check equals to or is less than nine hundred and fifty dollars and you do not have particular prior convictions. In all other cases, you will be subject to wobbler charges. A misdemeanor conviction carries a one-year jail term and a fine not exceeding one thousand dollars. A felony conviction carries a fine of not more than ten thousand dollars and custody in jail for a period not exceeding three years.
PC 487, Grand Theft
Under PC 487, you commit grand theft when you unlawfully take another’s property valued at more than nine hundred and fifty dollars. You can commit a PC 487 violation by committing a check fraud offense.
In many cases, violating PC 487 is a wobbler. If convicted of a misdemeanor violation, you will face a maximum of one-year jail term. And if found guilty of a felony violation, you will be subject to formal probation plus a maximum of a one-year jail time or sixteen months, two or three years in jail.
PC 470, Forgery
Forgery is criminalized under PC 470 of the Penal Code. You commit forgery when you do any of these acts:
Sign another party’s name.
Fake another individual’s handwriting or a seal.
Falsify or change a legal document.
Alter, fake, or present as genuine a falsified document referring to property, finances, or money.
Forgery becomes a critical element of check fraud charges if the defendant changes or alters a check.
Forgery is charged as a wobbler offense. A misdemeanor conviction carries summary probation, up to one thousand dollars in fines, and a jail sentence of one year. A felony conviction carries felony probation, up to ten thousand dollars in fines, and imprisonment in jail for a maximum of three years. However, note that forgery is only a misdemeanor if the document you forged is a money order, check, or similar document and is worth nine hundred and fifty thousand dollars or less.
PC 484, Petty Theft
Under PC 487, you commit petty theft when you steal or wrongfully take another person's property valued at nine hundred and fifty dollars or less. You may commit petty theft by committing check fraud if the faked, altered, or falsified check is worth nine hundred and fifty thousand dollars or less.
Petty theft is a misdemeanor offense. A conviction carries up to one thousand dollars in fines and imprisonment in jail for a period not exceeding six months. Instead of a jail term, a judge may grant you summary probation.
Find an Experienced Fraud Crimes Attorney Near Me
At Los Angeles Criminal Attorney, we provide experienced, compassionate, and professional legal representation to clients arrested for, charged with, or under investigation for check fraud and other fraud crimes in Los Angeles, CA. For decades, we have focused our passion on fighting for the criminally charged. Our genuine caring and personal attention to our clients have made us stand out as one of the best law firms in Los Angeles. Call us at 424-333-0943 for a free initial consultation and case evaluation.