Check Fraud

The California Penal Code, Section 476, establishes the legal definition of check fraud. In simple terms, it occurs when one makes, attempt to make, writes, passes, attempts to pass, possess, uses or attempts to use an altered, fake or forged check in order to defraud other people or businesses.

You can be charged with check fraud should you write a genuine check, with the knowledge that you have inadequate funds in the clearing account, with the intent of committing fraud. If by deliberate action, you put a stop on a check with the intent to steal goods or services, you are liable for a check fraud charge. Lastly, if you issue a check with full knowledge that the clearing account has been closed, then you might be facing check fraud charges if caught. Checks written under the above situations are colloquially known as ‘bouncing checks’ as they cannot be processed.

There are instances where a real and genuine check can be considered a counterfeit. These are when;

• The dollar amount on the check is changed,
• The date on the check is changed,
• The banks routing number is altered,
• The signature is forged, or a check is used without authorization of the owner.

Under the California State laws, the crime of check fraud, like other crimes under the broad category of forgery, is considered a ‘wobbler’. This means that the prosecutor reserves the discretion to charge you with a misdemeanor check fraud or a felony check fraud, and it is informed by, the amount involved, facts of the case or the defendant’s criminal history.

The prosecution must meet the following standards, otherwise known as ‘elements of a crime,’ beyond doubt, in order to obtain a conviction in a check fraud charge;

1. That the defendant made, possessed, passed, used, attempted to pass or use a fake or fictitious check for payment of goods or service,
2. That the defendant had full knowledge that the document was false, fake or altered.
3. That the defendant made all the above moves with an intention to defraud the check’s recipient.
4. That the defendant indicated, by words or writing, that the check was genuine.

You have to be proven guilty of all these elements to be convicted, and on that note, here is a breakdown of the above, for better understanding;

• A fictitious check is one that is drawn from an imaginary bank, bearing an imagined, non-existent account. Therefore, if a homemade check is drawn from a real, existing bank and endorsed by an existing person, this check is considered genuine, at least under the California Penal Code 476, but, prohibited under other statutes in the state’s laws.
  
  
• An attempt to pass a fake check, knowing that it is fraudulent, is basically considered as presenting the check as genuine and it’s hence, the easiest element to prove. This is furthermore represented by the fact if the defendant made it explicit in words or writing.
  
  
• A check is considered altered if its content is erased, added or changed in such a way that it causes the check to be different from the original and changes its apparent legal effect. Changing the dollar amount by adding additional zeros or altering the date of a check constitutes an alteration in California.
  
  
• The intent to defraud the recipient of the check must be proved in court for the prosecutor to obtain a conviction. Intent to defraud is the aim or objective to deceive another person or entity out of money or property. It would be prudent to note that, the actual fraud does not have to occur for one to be convicted of check fraud.

Check fraud is a type of forgery, as is determined in the California Penal Code. It is, therefore, punishable under the California forgery laws. As noted earlier, the prosecutor, bearing in mind the gravity of the crimes committed and the defendants past criminal records, has the discretion to file the charges as a misdemeanor or a felony.

The Voter Initiative, Proposition 47, established in 2014, determined that a defendant can only be prosecuted with a misdemeanor check fraud, if the value of the check is not beyond nine hundred and fifty dollars ($950), and, they have not been found guilty of identity theft, under the California Penal Code 530.5 P.C. In some unique instances, if a defendant’s criminal history, reveals that they have had previous convictions for serious crimes, such as murder or have had to register as sex offenders, as required by the laws in California for aggravated sex crimes, then, the check fraud charge against them, will be considered a felony, despite having met the conditions for a misdemeanor check fraud.

If one is convicted of a misdemeanor check fraud, they will be facing a court fine not exceeding a thousand US dollars ($1000), or they could be imprisoned for a period not exceeding 1 year, in a County facility or both the fine and imprisonment. If convicted of a felony check fraud, they could have to pay a court fine, not exceeding ten thousand US dollars, ($10,000), and, or imprisonment for a period between 16 months, 2 or 3 years in county jail, or 3 years’ probation and community service.  A conviction also requires that the defendant pays restitution back to the victim.

Vista Criminal Attorney Law Firm has defended a significant number of check fraud suspects, which has contributed a great deal of experience and added to our know-how in dealing with these cases. Our attorneys are qualified to help you navigate your way out of these charges, and restore your clean criminal record.

Here are some of the possible strategies we could use to defend you against check fraud charges.

• ‘Intent to defraud’ is a key requirement in order for a prosecutor to obtain a conviction in a check fraud charge; hence, it’s our objective to prove to the jury otherwise. In the likely event that you are paid with a fake check, which you unknowingly, go on and bank, you could find yourself on the wrong side of the law. However, you understandably did not harbor any aim to commit fraud. In such a case, you lacked the intent to defraud the bank and so, you are not guilty of a check fraud offense.

It is also possible that you were expecting funds to check into an account, then, you go ahead and endorse a post-dated check, only to realize later that the money did not materialize. Frankly, there are elements of a check fraud crime in such a case, but really, the defendant lacks the intent to defraud the payee.

• An experienced defense lawyer understands that a case of mistaken identity or false accusation is a possible argument that could guarantee freedom to the defendant, if well and intelligently articulated in court. Still, it could be a genuine argument in some instances, where people seeking revenge or harboring ill motives and grudges, set others up, using fake checks. If there is evidence or witnesses to help build your case, the better, as the lawyer is able to challenge the prosecutor’s circumstantial evidence.
  
  
• What If you indeed, altered a check, either by changing the dollar amount, the date, or even the payee’s name on the check? Well, this does not constitute a check fraud if you had the authority to do so from the check's owner. This scenario is quite common in a spouse-spouse or employer-employee relationship.
  
  
• Lack of knowledge can also be cited by the defense team in a possible case, where the defendant, might not have known that their account had insufficient funds required to clear the check. This defense will work if combined with the lack of intent to defraud the payee.
  
  
• A Miranda Rights violation has been cited in the past as part of the defense against check fraud. These are the rights entitled to a US citizen, under arrest. They include, right to silence, right to speak to their attorney and the right to have their attorney present before answering any questions. While presenting this defense, the attorney argues that any incriminating statement given to law enforcement was a violation of the defendants Miranda rights. This statement is most likely, what the prosecutor is using to prove your intent to defraud and prior knowledge of inadequate funds, to clear a check.
  
  
• The defense team could also prove to the court the genuineness of the alleged fraudulent check. This entails, examining the document with experts in court and cross-checking with the bank's records. You could also have written a harmless check, which, really, no one would have been expected to take as real. This could get your charges reduced to attempted check fraud, reducing the incarceration time.
  
  
• It is also possible to engage early mitigation measures with the prosecutor’s office, with the aim of having the case rejected altogether. This includes providing the defendant’s financial records to prove a fraud-free past, writing a character letter to show a lack of criminal history and presenting their side of the coin. If this works, then there is no need to go to court, since there will be no criminal case filing.
  
  
• In some unique cases, the defense team, armed with evidence and witnesses, could cite improper state of the defendant's mind while he made, passed or used the said check. The evidence and witnesses aim to exonerate the defendant from any liabilities, owing to their state of mind during the commission of the crime.
  
  
• In conclusion, one’s record can be expunged from the offense of writing a bad check, after having completed their probation. A particular petition under the Penal Code PC 1203.4 is served to the prosecuting office and later a hearing is set and heard. If the judge grants the petition, the court withdraws the guilty findings, and the case is dismissed. The defendant is also set off any penalties that had accompanied this conviction, especially the tainted records while job seeking in the private sector.

In check fraud cases, there comes up other offenses similar to check fraud, because they are charged alongside each other, or in place of the other. They include;

• Penal Code 476a-California’s ‘Bad Checks’ Statute- Falling under the California Penal Code, Section 476, Article a, this law prohibits the act of writing a check, with full knowledge of insufficient funds in the clearing account, with the intention to defraud the payee. This law particularly deals with lack of funds in the clearing account, to prevent what is commonly known as ‘bouncing checks’, while the California check fraud law deals with check forgery. However, under certain cases, the prosecutor can charge you with breaking both laws.

For example, if you attempted to cash a fake check, under a non-existent bank, you would be liable for a check fraud charge because the check is fake, and certainly, there are no funds in the ‘account’ to clear the check, since the bank is fictitious. As such, you are liable for the bad check charge.

• Penal Code 470-California’s Forgery Law- This law is pretty broad and is concerned with forgery of documents other than checks, bills or notes while the Penal Code 476, California’s check fraud law is concerned with forgery of checks, bills, and notes. However, a prosecutor could charge you under both laws if you forged someone else’s name on a check, but you can only be convicted under only one of these laws. Penal code 470, forgery, carries similar charges as those of the penal code 476, check fraud.
  
  
• Penal Code 487-California’s Grand Theft Law- You violate California’s theft laws if you take money or property belonging to another person or entity, without their authorization or consent. If the amount is taken or the value of the property exceeds $950, then that crime constitutes grand theft. Thus, if you made or passed a fake check of more than $950 in value, and used that check to obtain money or property worth more than $950, then you are liable for a grand theft charge and a check fraud charge. This offense is considered a wobbler and is punishable in the same manner as check fraud, but if the amount skips $65,000, then it is automatically considered to be a felony, attracting additional incarceration time.
  
  
• California’s Petty Theft Law- This law is almost similar to the California grand theft law which prohibits grand theft. The difference is in the amount in question and the penalties involved. California’s petty theft law prohibits taking another person’s money or property that is valued at or below $950, without their consent or legitimate approval. It follows that, if you made, passed or used a fake, fictitious or altered check to obtain goods or money valued at $950 or below, then the prosecutor could charge you with PC 476 and petty theft.

It is considered a misdemeanor and its penalty are 6 months in jail and or a fine of up to $1000.

With the increase and sophistication of check fraud crimes in California in recent times, many people have found themselves in the corridors of justice, facing check fraud charges, as the State actively seeks to curb this growing menace. If convicted of this crime, and in addition to the court inflicted penalties, one faces;

1. Inability to renew state driving licenses,
2. Inability to find employment,
3. Inability to get and maintain preferable immigration status.

Our attorneys at Vista Criminal Attorney Law Firm have a deeper understanding of the intricacies of the law into great detail and as such, we are confident in our work representing you in and out of court. Our familiarity with court procedures and the personal relationships with our colleagues in the justice field enable us to find our way out of the courts with our experience and skills.