It is an offense for any person to write, use, or pass a fake check. This offense is known as check fraud and is one of the most common fraud crimes. Increased software sophistication and the ever-developing technology are significant contributors to fraud. The offense of check fraud in California is under Penal Code 476. You can face severe penalties like hefty fines and a jail term if the court convicts you under this statute. In addition, you can sometimes face more severe penalties if the fraud crime occurs alongside other crimes. If you or a loved one is arrested for fraud, you should contact a criminal defense attorney for guidance and legal representation. If you are in Santa Ana, we at the California Criminal Lawyer Group are ready to help you fight the charges that you are facing.

Overview Of Check Fraud In California

Check fraud involves making, using, or passing a fake or an altered check to commit fraud. Using or endorsing a fabricated check to pay for or purchase something is a common fraud crime in California. In addition, other actions lead to fraud charges in California. The actions include:

Chemical Alteration

If you erase the ink on a check to write something else to benefit financially from it, then you are guilty of fraud. Even if your plan to commit fraud fails, you could still face criminal charges.

Counterfeiting 

Counterfeiting involves making many checks to commit fraud.

Paper Hanging 

Paper hanging is a type of fraud involving writing orders or checks to pay items with a closed account.

Identity Check Theft 

Identity check theft involves opening an account in another person’s name and writing checks through it.

Check Theft 

You could face check theft charges if you steal a check and try to pay for goods or deposit it into your account. You could also be charged with fraud if you sign another person's checkbook without permission.

Money Order Fraud 

You can commit this type of fraud by convincing someone else to give you money in exchange for a money order, and you deposit money in a different account.

Forgery

If you issue a check without authorization, you will be guilty of committing an offense of check fraud via forgery. This type of crime is common in companies where employees issue checks without their employer's consent.

Elements Of A Check Fraud Offense In California

If the prosecutor accuses you of committing check fraud in California, Penal Code 476 requires proof of some elements to the court. The elements include: 

  • That you wrote or made, passed off, possessed, or tried to make, write, or pass a forged, fake, or altered check. Under forgery laws in California, a fake check is simple, plain, and fictitious. For example, a check signed by a non-existent person or written by a bank that does not exist is a fake check. On the other hand, an altered check contains information that has been changed, added, or erased to lose its actual legal effect. Therefore, for the prosecutor to charge you for violating PC 476, they have to examine the features of the check keenly to determine if they are out of the ordinary.
  • You knew that the check was faked, altered, or forged, but you still possessed it and attempted to pass it off. The prosecutor can only charge you with violating PC 476 if they provide sufficient evidence that you were aware that the check was forged or faked. You can't face the charges if you do not know. It is also possible that you were unaware of what a genuine check looks like.
  • You intended to defraud a person or an entity with the alleged altered, faked, or forged check. The prosecutor could convict you if the element of intent is evident. However, if the prosecutor fails to prove your intent to defraud, their accusations cannot count, even if you genuinely defrauded someone or someone else incurred a loss because of your fraud. Therefore, you can only be guilty of this crime if you intend to gain money or property illegally.
  • You presented or passed off the check as genuine — For you to face the charges under this element, the prosecutor must prove that you knew the check was fake, yet you tried to or presented it as though it was genuine. For example, you could have presented the check through words or conduct and done it directly or indirectly. The presentation of the check occurs the moment you try to use a fake or an altered check.

At times, California prosecutors also conduct investigations to establish if you had a particular motive to engage in check fraud. For example, perhaps you had to make a large purchase or if you intended to clear a considerable debt. Prosecutors will also look at your previous spending patterns to establish if there is a trend. They will also look for records of constantly floating purchases or bouncing checks.

However, if the following is confirmed, you will not face charges under Penal Code 476 even if you attempted to cash the check:

  • You drew a check on a bank that genuinely exist
  • You had the check signed by a person that exists
  • You had a genuine account in the alleged bank, but it was closed

A check has a legal ground for negotiation if the account was not closed and if it contained adequate funds. Even if your account is closed, that alone cannot alter the nature of your check as genuine. The only issue will be that the check will not be cashed. Therefore, if your check is real, it will be genuine under PC 476, even if you possess it illegally, according to other statutes.

Penalties For Violating Penal Code 476

You could face forgery charges if you violate PC 476 of California law. It is a wobbler crime in California for anyone to violate this statute. The prosecutor could charge the offense as a misdemeanor or a felony. It will depend on your criminal history and the facts of your case.

If the court 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 court 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

If the court convicts you under PC 476, you will also face adverse effects on your gun rights. Under California law, people convicted of felonies are not allowed to possess or acquire a gun in California. Therefore, you will lose your right to own and have a firearm if the prosecutor decides to charge the crime as a felony and you face a conviction.

You will also face negative immigration consequences if the court convicts you under PC 476. According to the United States Immigration law, certain kinds of criminal convictions can make you inadmissible and deportable. For example, the courts have often ruled that forgery crime amounts to deportation. Therefore, depending on the circumstances of your charges, a conviction for fraud can lead to severe immigration results.

A charge under PC 476 could qualify for expungement of a criminal conviction. An expungement removes your criminal record from the national database. However, you must have completed your jail term and restituted all the money from the fake check and any other damages ordered by the court. You should also not have served a jail term or been convicted of any other crime. You must make your expungement application at least one year after the court makes the judgment on your case. You will not be eligible for expungement if you face a state prison sentence. For example, if the court convicts you for fraud and grand Theft valued at $65,000 or more.

Check Fraud In Line With Proposition 47

A voter initiative enacted Proposition 47 in 2014. The proposition permits less severe and non-violent offenses to be misdemeanors rather than being charged as felonies. However, this can only happen if you have no previous convictions for sex offenses, murder, rape, and gun crimes. The crime of check fraud in line with proposition 47 will be charged as a misdemeanor as long as you do not face identity theft under PC 530.5. You will also face misdemeanor charges if you have no previous convictions for violent offenses and if the value of the fraudulent check is less than $950.

Filing A Civil Lawsuit Against A Fraud Crime

If the court in California finds you guilty of a check fraud crime, you can face a civil penalty. In addition, you can face the penalty under Civil Code 1719 of California law. However, you can avoid this punishment if you restitute all the property or money on the payee's demand. You can also avoid the penalty if you pay a maximum of $25 as a service fee for the fraudulent check and another $35 as a service fee for the subsequent fraudulent checks you could have presented.

If you fail to meet the demands of the payee, you could have to pay the entire check amount and three times the check amount or between $100 and $1,500. However, the fraud punishment can be reduced to lenient charges if the circumstances favor you. For instance, check fraud can be reduced to an attempted check fraud crime.

Defenses To Check Fraud Charges

If you face fraud charges, there are common defenses you can use to fight your charges. They include:

You Honestly Believed You Had Overdraft Protection Or Enough Money In Your Account

You could face fraud charges if you cash a check whose value exceeds the amount you have in your account. For example, you can cash $100,000 when your account balance is $10,000. Using this defense, your attorney could challenge your charges because you could have withdrawn the money without keeping track. For example, if your attorney can provide sufficient evidence that you honestly believed you had $100,000 in your account while withdrawing, you will not be guilty of fraud.

Consent

Some employees are sometimes allowed to handle the checks and make changes. For example, a person authorized to grant the permission to change the information on the check or sign on behalf of someone else could allow you to do so. You will not be guilty of a fraud offense in this case. However, the authorizing person must confirm that he/she allowed you to handle the check or make changes to it. 

You Did Not Present The Check As Genuine

Before you face check fraud charges, the prosecutor must establish your attempt to present a fake check as genuine. The prosecutor must provide sufficient evidence that the check was not only faked or forged, but you attempted to cash it. Perhaps you were only trying to prank the payee with the check. Your attorney can allege that the check you made, used, or presented, was fake, but you did not expect the payee to take it seriously.

No Fraudulent Intent

Under California forgery laws, you are not guilty of a fraud offense if you do not have the intent to commit the crime or defraud a person or institution. For instance, you could just be testing a new technology by faking or forging a check without any intention to use or cash it. In this case, the prosecutor cannot charge you with fraud.

You could also change some information on the check with an honest belief that you had the right to do so, or you sign a check on behalf of someone else. To avoid conviction in this situation, your attorney can allege that you had no intent to commit fraud. However, the mere possession of the fraudulent check is a crime, so your attorney must know how to use this defense effectively.

You Did Not Commit The Fraud

You can cash a check someone passed to you without knowing it was fake, then the prosecutor charges you for it. Your attorney could argue that you should not face charges in this case, but whoever gave you the check should be liable. A competent attorney can resolve the issue of false accusations. The attorney can conduct a thorough investigation and expose injustice against you.

Lack Of Knowledge Of Altered Or Faked Check

You can try to pass or pass a check when you don’t know the status of the check as forged or faked. For example, someone can refund you money owed to you as a check and then cash it. On the way, the police arrest you because you possess a fake check. You are not guilty of the charges because you are not responsible for the faked check. Especially if you had never encountered a fake check, you could not know what one looks like. Your attorney can outline that you could lack any reason to believe that the check was not authentic.

Lack of sufficient evidence could also be another defense. For example, there may be no substantial evidence that you forged, altered, or faked the check. In other situations, your attorney can also allege that despite the check alteration, you had no intention to publish, pass, or cash the check.

However, accepting to refund the money you defrauded to show remorse is not a valid defense. It is only a mitigating factor, leading to lesser charges, but it does not justify the offense.

The above defenses can only be valid based on the circumstances of your case. Your attorney can present any substantial proof to support the above defenses. For example, the attorney can review your financial records to identify anything significant, look at your criminal record, and present witnesses who can match your testimony. Your attorney can successfully challenge the prosecutor's evidence and have you acquitted or your charges dismissed with this evidence. If acquittal or dismissal is not an option, your attorney can negotiate with the prosecutor a favorable agreement.

Related Offenses

Related offenses are often charged alongside check fraud instead of check fraud. The crimes that are closely related to check fraud in California include:

Forgery — Penal Code 470

In California, forgery statutes are pretty broad. These statutes make it a crime to act to defraud an entity or other people. Defrauding happens when you sign the name of another person without their permission or when you sign a non-existent individual's name on particular documents. So, for example, you could face the charges under PC 470 if you counterfeit another person's handwriting, seal, or falsify a deed.

The difference between forgery and check fraud is that forgery constitutes various documents, including title deeds and wills. Check fraud is limited to bills, checks, or notes. Therefore, you will face forgery charges instead of check fraud if you forge anything besides a bill, note, or check. However, the prosecutor could charge you with check fraud and forgery if you forge someone else's name on a check. Fortunately, if the prosecutor charges you with both crimes, there is a provision in California law outlining that you can only face charges for either one of the offenses, not both offenses.

A prosecutor can charge the crime of forgery as a misdemeanor or felony, depending on your criminal history and the circumstances of your case. Misdemeanor charges carry a punishment of a one-year jail term in county jail. You could also face a fine of up to $1000. Felony charges carry a jail term of one year in county jail and a fine of up to $10,000. You could also face summary probation.

Bad Check — Penal Code476 (a)

It is a crime under PC 476a of the California law for any person to:

  • Write or pass a bad check
  • Do so with the understanding that there is not enough money to cover the payment of the check

If the prosecutor accuses you of bad check crime, PC 476a requires proof of the following elements:

  • You willfully used, made or drew, or tried to use, make or draw a check or order for the payment of money
  • When you used, made, drew, or tried to draw, there was not enough money to cover the full amount of the check
  • You were aware that there was not enough money in the account
  • When you acted, you intended to defraud

It is a misdemeanor crime to violate PC 476a in California if:

  • You do not have certain prior convictions
  • The bad check amounts to $950 or less

The crime of bad check is a wobbler offense in all other cases. The prosecutor can charge the crime as a misdemeanor or a felony. If the prosecutor charges the crime as a misdemeanor, you could face a fine of $1000 and a jail term of one year in county jail. If the prosecutor charges the offense as a felony, you could face a fine of $10,000 and a jail term of three years in county jail.

Defenses

  • You informed the payee about insufficient funds
  • No intent to defraud
  • Post-dated the check

Find A Santa Ana Criminal Defense Attorney Near Me

If you possess, write, or pass a false check, you risk arrest and conviction for check fraud. The repercussions that accompany a conviction of fraud are severe. However, with the help of a competent criminal defense attorney, you can build a solid defense to fight the charges because not all arrests for fraud result in a conviction. The California Criminal Lawyer Group in Santa Ana is a group of competent attorneys who work hard to defend clients facing fraud charges and other criminal charges. Our attorneys will evaluate your case and help you create a convincing defense to fight your charges. We have handled numerous check fraud cases and our clients are happy with the results. Call us today at 714-844-4151.