One of the prevalent fraud crimes in the United States is check fraud and, by extension, in California as well. The advancement of technology has made it increasingly trouble-free for people to commit this crime. The state of California under PEN 476 takes the offense of check fraud very seriously with strict penalties when convicted. Sometimes a person can also be wrongly accused of this crime, and if not well defended, they get improperly convicted. Irrespective of the circumstances of the offense, when accused of these charges, one needs a criminal lawyer. At The LA Criminal Defense Law Firm, we will assist you in fighting these charges and get a favorable outcome.
Understanding Check Fraud
Check fraud law in California is found under PEN 476 and is part of the broader crime of forgery. According to the law, check fraud is the making, having, giving, or using a fake or forged check as a form of payment. Additionally, for one to be found guilty of check fraud, there must be evidence the person intentionally and knowingly committed the fraud.
In California, the typical type of check fraud is endorsing or signing a check using another person’s details without their consent. Check fraud takes various other forms with some of them being:
- Falsely fabricating a check
- Altering or Forging the routing number
- Changing the amount of money indicated on the check
1. Fake or Fictitious Checks
California prohibits the making, possession, passing on, and the use of fictitious checks in any transaction. This includes checks generated through computers, the use of checks from banks that do not exist or endorsing a check with the name of a person that does not exist. Issuing a check from an account that is closed may not be considered as a fake one.
There is software that can be used to generate checks. Some people use them to produce a fake check that they use to go shopping. When the check is taken to the bank, it is marked as closed. This prompts the store’s supervisor to notify the authorities about the offense. The person that issues such a check is then charged with PEN 476 violations.
2. Altered or Forged Checks
A person is accused of altering a check when they change, erase, or add information on a check. The intention is to make the check different from how it originally was intended to be. Some of the changes may include:
- Changing the amount written on the check. For instance, a check may have been written for $ 60, and a person changes it to read $600
- Forging or changing the check number or its routing number
- Changing the date written on the check. For instance, if you have been issued a post-dated check, you change the date to read an earlier one
3. Fraudulent Intent
For fraud cases, the law states that the person accused of the fraud had fraudulent intentions when using the check. A fraudulent intent, according to the statute, says that the person had plans of deceiving another. Or is defrauding them of their property and money. This is important for a prosecutor to prove for a person to be convicted of the crime.
The law stipulates that one only needs to have had an intention to unlawfully profit from the fraudulent activity for the charges to stick. Additionally, the defendant must know that the check is fraudulent. This means a recipient of a check may accept it without knowing that it is fraudulent. He or she decides to cash it at the bank, but it is discovered to be fake. The person will have to convince the law enforcement officers that they also received the check and were not aware if it was fake, neither did they have fraudulent intent.
Penalties for Check Fraud
When one is accused of check fraud, the above-discussed elements must be proven to be valid for a conviction to stick. A violation of PEN 476 is a forgery in California. The prosecutor can decide to prosecute the offense as a felony or a misdemeanor. The factors that a prosecutor considers before deciding on how to pursue the case depends on:
- The criminal background of the accused
- The evidence of the case
When a defendant is prosecuted for the offense on misdemeanor charges, a conviction will lead to the following penalties:
- County imprisonment of up to a year
- A cash fine not exceeding $1,000
- Both jail time and cash fine or either of them
A felony conviction, on the other hand, carries more severe penalties. If convicted of the offense, a defendant will face the following penalties:
- A county jail time of not more than three years
- A cash fine not exceeding $10,000
- Both cash fine and jail time
Immigration Consequences for Check Fraud
The federal immigration law allows for some convictions to lead to deportation or an immigrant to be inadmissible. Fortunately, check fraud will not lead to automatic immigration consequences. However, in California, only one forgery offense resulted in the deportation of the offender. This means that depending on the factors and circumstances of a crime, a conviction may result in one suffering significant immigration consequences.
Legal Defenses for PEN 476 Violations
As earlier discussed, check fraud charges are serious offenses, and the consequences severe as well. When one is facing these allegations, hiring a criminal lawyer is the best thing to do. A lawyer will be able to study the case, the circumstances around the incident and come up with defense strategies against the allegations.
There are three popular defenses used by lawyers in defending their clients against these allegations. These include:
The Defendant had no Intention to Defraud
According to PEN 476, a person is only found guilty of the offense if their actions were intentional and purposed to defraud. It is, therefore, a legally acceptable defense to show that the defendant, although he or she committed the offense, had no intention to defraud any person.
The Defendant had Consent to Alter the Check
Although it is an offense to change a check according to PEN 476, a defendant cannot be convicted of the crime if:
- They made the changes or alterations with permission to do so
- That the consent was issued by the party or individual accountable for the bill or check
If a lawyer can use consent as a defense successfully, the defendant will not be convicted of the crime.
The Defendant had no Knowledge that they had a Bad Check
One of the elements a prosecution must prove about check fraud is that the defendant was aware the check was fraudulent. If the defendant was not aware the check was bad, they could not be convicted of the offense. For instance, when a store owner goes to the bank to cash checks given by customers, one of them may be fake. Although the bank may report the incident to law enforcement authorities, the defendant can show they had no knowledge the check was counterfeit.
Another person may be paying a debt owed to a friend. They get issued with a check and believe it to be genuine. On getting to the bank, it is discovered the check is bad. Even when charges are brought against them, they can show the court that they had no knowledge the check was fake.
If a lawyer can convince the court of this, then the defendant cannot be found guilty of the offense.
Expungement of a Criminal Record when Convicted of Check Fraud
When a person has been convicted of this offense, they can still get their records expunged. However, there are conditions for expungement. The defendant must complete their probation sentence successfully without violating any of the probation conditions. If the defendant served a jail sentence, they must complete their sentence successfully as well as fulfill every penalty issued to them.
It is important to note that the expungement of a criminal record is at the discretion of the judge. If the expungement is granted, the defendant is released from the disabilities and penalties that result from the conviction.
How a PEN 476 Conviction Affects the Defendant’s Gun Rights
When one is convicted of this offense, their gun rights can be negatively affected. If the crime is sentenced as a felony, a defendant can get convicted on felony charges. The law prohibits convicted felons from getting or owning guns. This means that when one is convicted of this offense, they will lose their rights to have a gun.
Related Offenses to PEN 476
There are various offenses related to check fraud that can be charged alongside this offense. Here, we discuss these offenses and how they relate.
1. PEN 476a – Writing of Bad Checks
PEN 476a this statute makes it a criminal offense when a person:
- Writes, passes a check
- The act is done with the knowledge that the drawer has insufficient funds in their account to cover the payment.
For instance, a person can go to a grocery store and shop, costing $200. He or she goes ahead and issues a check on the same while knowing their account only has $100.
Penalties for PEN 476a
When one is accused of violating PEN 476a, they will be charged on misdemeanor charges if:
- The total amount on the bad check is $950 or less
- The defendant holds no specific prior conviction of fraud
When one is convicted of a misdemeanor offense, the penalties are similar to those of check fraud under PEN 476. Because this offense is a wobbler, the defendant can be prosecuted on felony charges. The penalties for a felony conviction are also similar to those of PEN 476 check fraud as a felony.
Legal Defenses for PEN 476 Violations
When a defendant is facing allegations of writing a bad check, the best option is to hire a defense lawyer. A lawyer can strategize and formulate various defenses that will help the defendant against the offense. Some of the arguments used in this case will include:
The Defendant did not Intend to Defraud
When a person acts without an intention to defraud, they cannot be found guilty of writing a bad check. A person may have innocently drawn a check thinking they had enough money to cover it. Unfortunately, they had not kept proper tabs on their account to know the actual balance. If a lawyer can convince the court that the defendant made a mistake, then the charges against them can be dropped.
The Check was Post-dated
If a check is post-dated and the recipient goes to cash it before the agreed date, the accused cannot be found guilty of writing a bad check. A post-dated check instructs the payee to wait until a particular date for the account to have enough money to service the check.
If the payee goes before time to cash the check, the check will not be accepted by the bank, and accusing a drawer of writing a bad check will not hold in court.
The Payee was Made Aware of Insufficient Funds in the Drawer’s Account
This defense is similar to that of post-dated checks. A drawer of the check may believe they had funds in their account when they drew the check. They later realize the funds are not enough and immediately inform the payee before depositing the check. If the payee goes ahead and deposits the check disregarding the warning from the drawer, the check will not be paid.
A lawyer can convince the court using this defense. If the court believes the argument, the case against the defendant is dismissed.
2. PEN 470 – Forgery
The crime of forgery, as found under PEN 470, is related to that of check fraud and can be charged alongside each other. Under this statute, it is an offense to:
- Use another person’s name to sign documents or a name of a person that doesn’t exist
- To forge the handwriting of an account’s owner to write a check
- Change, falsify or corrupt a record, legal will or a judgment
- To make, forge, counterfeit or change financial documents such as money orders, checks or bonds
Penalties for PEN 470
An offense in forgery can be prosecuted as either a misdemeanor or a felony. The crime is only prosecuted as a misdemeanor if the value of the check is less than $950. A conviction on either misdemeanor charges or felony charges carries the same penalties as those of a check fraud offense.
Possible Legal Defenses for PEN 470 Violations
When facing these charges, a defendant is advised to hire a lawyer to fight against the allegations. Some of the defenses a lawyer will use in court include:
There was no Intention to Defraud
A lawyer can argue that the defendant forged or altered the check as a prank and did not expect the payee to cash it. Maybe the defendant had just got a bank account and was joking with his friends about him having money in the account and that he can give them money.
Many cases in forgery are as a result of legal dealings or complicated business transactions. These cases are also mainly reported in work settings. Because of this, it is common for a person to falsely accuse another of forgery while trying to cover up their mistakes. A lawyer with the help of the defendant can produce evidence to demonstrate that they were falsely accused of the offense.
Sometimes a defendant may be charged after they have confessed. The law prohibits the police from using intimidating measures to force a confession from a suspect. A defendant can argue that the police threatened them with consequences if they did not confess to the crime. If a lawyer can convince the court on this argument, the confession can be excluded from evidence against the defendant. Additionally, depending on the circumstances, the prosecutor can decide to drop the case when they find the only evidence they had was the forced confession.
3. Grand Theft – PEN 487
When a person takes property belonging to another person that is valued at $ 950 or over, they can be charged with the offense of grand theft. This is a crime related to check fraud and can be charged alongside each other.
A conviction on grand theft charges can lead to severe repercussions, both personal and professional. For a person to be found guilty of this offense, a prosecutor must prove specific facts of the case as accurate. The crime of grand theft can be carried out in various ways. These are:
Grand Theft – Larceny
The crime of grand larceny occurs when a person physically takes stuff that belongs to another person without their consent. In taking the property, the defendant intended to deprive the owner of them permanently. They could also have planned to separate the owner from the property for some time. Regardless of where you moved or hid belongings, you will still be charged with grand larceny offense.
Grand Theft through False Pretenses – PEN 532
Another form of grand theft is one that the perpetrator uses false pretenses to obtain things from another person. The person will intentionally deceive the other by telling them falsehoods to persuade them to let you take their property.
Theft through Embezzlement
A person can also be charged with this offense in relation to check fraud. For the charges to stick, however, the prosecutor must prove some aspects of the crime. These will include:
- Another person trusted the defendant with their property
- The owner of the property trusted the defendant and put them in that position with the property
- That the defendant used or took the property without the owner’s consent or in a fraudulent manner to profit themselves
- In taking the property, the defendant intended to defraud the owner of its benefit
Penalties for PEN 487 Violations
The crime of grand theft is a wobbler offense in California. The criminal history and the circumstances or facts of the case will help the prosecutor decide on how to prosecute the case. The penalties for this offense when convicted are severe and have serious repercussions aside from the legal punishments.
A misdemeanor conviction will include a penalty of county jail time not exceeding a year. A felony conviction typically carries steeper penalties. These penalties may consist of serving felony probation that provides for at least a county jail time of not more than a year. The judge can also sentence the defendant to harsher penalties depending on the circumstances of the offense. A defendant can face county imprisonment for sixteen or twenty-four or thirty-six months.
When the value of the taken property is high, a defendant will face enhanced penalties. These are to be served alongside those of a standard grand theft offense. The enhancements with regard to property value include:
- An additional one-year jail sentence when the property was valued at $65,000 or over
- A further two years in jail when the value of the property taken is $200,000 or more
- An additional three years if the property stolen is valued at $1,300,000 or more
- An additional four years when the property was over $3,200,000 in value
With relation to check fraud, a person can obtain high-valued goods under false pretenses from a distributor. The person then makes a payment using a check. Unfortunately, the defendant may have planned the incidence by making the payee of the check believe he has the money to pay the check. After obtaining the goods, the defendant skips town and is unreachable. This would mean the defendant intentionally went to the distributor, knowing he or she had no money but pretended to have. They proceed to obtain goods under false pretenses and skipped town to avoid arrest or prosecution.
Possible Legal Defenses for PEN 487 Violations
A person accused of grand theft offenses is also advised to hire a lawyer. A lawyer can help defend them using various strategies. These are:
Lack of intent
The defendant can argue that they did not intend to take the goods but had planned to return them as well as inform the owner.
The defendant took the goods or property with express consent from the owner.
The defendant can argue that they were falsely accused of the offense.
Find a Los Angeles Criminal Attorney near Me
Check fraud is a severe offense in California that carries serious penalties. A conviction of the crime can result in various repercussions aside from those issued by the court. Sometimes a person can be wrongfully accused and convicted of the offense, especially without proper legal representation. Getting a criminal lawyer can help one overcome the allegations. At The LA Criminal Defense Law Firm, we are passionate in defending our clients against illegal claims facing them. Get in touch with us at 310-935-1675, and we will help you in your defense.