Penal Code 476 PC | Check Fraud

Penal Code 476 PC | Check Fraud

Check fraud refers to intentionally writing bad checks to obtain money, goods, or services. This is a very common financial crime that can result in felony charges under California Penal Code 476 PC.

This article provides an overview of the California check fraud law – how it works, penalties, legal defenses, and related topics.

The Legal Definition of Check Fraud

Under Penal Code 476 PC, California law defines check fraud as someone:

• With intent to defraud,
• Making, drawing, uttering or delivering a check, draft or order,
• Up to the amount of $950,
• Knowing they do not have enough money in their account to cover the check, and
• They fail to pay the amount of the check within 10 days of receiving notice that the check bounced.

It’s also check fraud for a person to make, draw, utter or deliver a check for over $950 knowing they lack sufficient funds and then fail to make good on it within 10 days.

The prosecutor must prove intent to defraud along with insufficient funds in the defendant’s account.

Check Fraud Penalties

A violation of Penal Code 476a PC is a California wobbler offense. This means it can be charged as either a misdemeanor or a felony, at the prosecutor’s discretion.

Misdemeanor check fraud is punishable by:

• Up to one (1) year in county jail, and/or
• A fine of up to $1,000

Felony check fraud carries:

• Sixteen (16) months, two (2) years or three (3) years in jail, and/or
• A fine of up to $10,000

If the bad check(s) total more than $950, the offense gets charged as a felony.

The judge can also order victim restitution and revoke or suspend the defendant’s driver’s license.

Legal Defenses

Having an experienced California criminal defense lawyer can help raise defenses against check fraud accusations and get charges reduced or dismissed. Common defenses include:

• Lack of intent – The D.A. must prove you intended to defraud the victim. But sometimes checks bounce by accident…it doesn’t mean you meant to commit fraud.
• Insufficient evidence – For example, the prosecution lacks evidence that you knew funds were insufficient at the time you wrote the check.
• Mistake of fact – You mistakenly believed there were enough funds to cover the check.
• Bank error – The bank made an accounting mistake which caused the check to bounce.

With an experienced attorney, many people accused of check fraud don’t end up convicted.

Related Offenses

Related crimes include:

• Penal Code 476a PC – Check kiting, which means writing bad checks between multiple accounts.
• Penal Code 484f PC – Using fraudulent IDs or access cards to obtain money.
• Penal Code 470b PC – Forgery of official seals or signatures to commit fraud.
• Penal Code 532a PC – False pretenses, obtaining money by false promises.

Penal Code 476a – “Check Kiting”

Penal Code 476a PC California’s check kiting law, makes it a crime to engage in a scheme where a person writes bad checks between multiple bank accounts.

Check kiting is when someone writes a check from a bank account that has insufficient funds. But before the check can bounce, the person covers it by depositing funds from a different account.

Check kiting allows the person to temporarily “float” non-existent funds in order to obtain goods, services or money. But eventually the scheme falls apart.

Check kiting is a felony in California. The penalties are:

• Sixteen (16) months, two (2) years or three (3) years in California state prison, and/or
• A fine of up to $10,000.

How Does the Prosecutor Prove Check Fraud?

To convict the defendant of check fraud per PC 476, the prosecutor must prove the following facts (known as elements of the crime):

1. The defendant made, passed or delivered a check for the payment of money,
2. The defendant knew they did not have enough money in the bank to cover the check, and
3. When making, passing or delivering the check, the defendant intended to defraud the recipient.

Let’s take a closer look at the elements of check fraud in California.

Knowledge of Insufficient Funds

The prosecutor must show that at the time the defendant wrote or delivered the bad check, he/she knew there were insufficient funds to cover it. Evidence may include:

• Bank records showing low account balances,
• Evidence of an overdrawn account,
• Other bounced checks written around the same time, or
• Admissions by the defendant.

Intent to Defraud

The D.A. must also prove the defendant intended to defraud the recipient of the bad check. Evidence of fraudulent intent may consist of:

• Statements or behavior indicating an intent to defraud,
• Trying to cover up the offense,
• A pattern of writing bad checks, or
• Failure to make good on the check within 10 days of receiving notice that it bounced.

How We Defend Check Fraud Cases

An experiencd California criminal defense attorney can often beat check fraud charges by challenging the D.A.’s evidence. We thoroughly investigate the case and identify any legal holes in the prosecution’s case.

For example, we may argue you did NOT have knowledge of insufficient funds or fraudulent intent. Often times checks bounce by mistake…it doesn’t necessarily mean the person committed fraud.

We may also retain a forensic accountant to review bank records and determine if there is evidence of bank error. Many check fraud cases get dismissed once we start poking holes in the prosecution’s case.

Plea Bargains in Check Fraud Cases

Over 90% of check fraud cases end in some sort of plea deal rather than going to trial. Common plea bargains include:

• Penal Code 17(b) reduction – Reduce a felony to a misdemeanor.
• Restitution – Repay the victims.
• Probation – Plead guilty in exchange for probation and no jail time.
• Pre-trial diversion – Charges dismissed after completing a diversion program.

An experienced negotiator can often convince the prosecutor to reduce charges to a misdemeanor or allow you to plead to a less serious offense.

Consequences of a Check Fraud Conviction

A check fraud conviction can have significant long-term consequences beyond jail time and fines. Some include:

• A criminal record which can affect jobs, licensing applications, housing, etc.
• Difficulty getting approved for credit cards or loans.
• Loss of voting rights while incarcerated.
• Deportation for non-citizen defendants.
• Ineligibility for government benefits such as food stamps or Medicaid.

This is why it is critical to have an attorney try to get charges reduced or dismissed through plea bargaining.

Ways to Beat Check Fraud Charges

Here are some common legal defenses to check fraud accusations:

• Lack of intent – It’s possible the defendant did NOT intend to defraud anyone when the check bounced. For example, perhaps they mistakenly believed there were sufficient funds or expected a future deposit.
• No knowledge – The defendant may not have known the account had insufficient funds when they wrote the check. Proving knowledge of insufficient funds is required.
• Bank errors – In some cases, a bank error or delay in processing a deposit leads to a check bouncing accidentally. This means no fraud was intended.
• Mistake of fact – The defendant may have been mistaken about the account balance or confused it with another account. This can negate intent.
• False accusations – Sometimes angry payees falsely accuse someone of check fraud out of spite or revenge.

With an experienced criminal defense lawyer, many people accused of check fraud are able to get charges reduced or dismissed.

Check Fraud Cases Often Get Dismissed

Many check fraud accusations don’t hold up under scrutiny. An experienced California criminal defense attorney can often get charges reduced or dismissed by:

• Conducting a thorough investigation,
• Uncovering holes in the D.A.’s case,
• Raising reasonable doubts about intent or knowledge, and/or
• Negotiating with the prosecutor for a better plea deal.

It is critical to have an experienced lawyer review the evidence and build the strongest defense strategy possible.

Next Steps If You Need Help

The California criminal defense attorneys at the Shouse Law Office provide free consultations. We assist clients with check fraud accusations throughout the state.

We help clients understand their rights, defenses and options. Contact us 24/7 for expert legal advice. We may be able to get charges reduced or dismissed before your case ever goes to criminal court.

References

• • Penal Code 476 PC – Check Fraud
  • California “Wobbler” Laws – Shouse Law Group