Under Penal Code 476, you commit check fraud if each of the following elements of this offense are proven by the standard of beyond a reasonable doubt:
Check fraud can be committed by possessing, presenting or attempting to pass a fake or counterfeit check or one where the payor’s signature is forged6.
What Is An Altered Check?
Altering a check to make it look genuine evinces an intent to defraud someone by changing the date, amount or routing number. By doing any of these things, you are transforming the legal effect of the instrument so that its original nature is altered7
Definition of a Fake, False or Fictitious Check
A fake check may look more genuine than an altered one but it is one that has been signed by a fictitious person or references an account on a non-existent bank8. Presenting a check that is otherwise legal but drawn on a closed account is not within PC 476 but an offense under another check fraud penal code sections9.
Most cases concern situations where the defendant forges someone else’s signature on the check.
Definition of Fraudulent Intent
Your intent is relevant under the code. You exhibit fraudulent intent by purposely or willfully intending to defraud another person or entity or to deceive them in order to gain a benefit from them, including funds, services. You do not have had to receive the funds, services or goods to satisfy the elements of PC 476.
Representing the Check as Real or Genuine
Presenting the fraudulent check with knowledge that it is fake or has been altered is all the prosecutor needs to charge or prove guilt. Any representation or statements that you make indicating that the check is real, whether direct or indirect, is enough to convict.
Check fraud is a “wobbler” offense in California, giving the prosecutor discretion to charge you with either a misdemeanor or a felony in California.
Additional Ways You Could be Charged you a felony:
- At least 3 prior convictions for forgery
- At least 3 prior convictions for petty theft based on forgery (PC 470) or bad checks under PC 476(a)
- Any one prior conviction for a serious violent felony or if are a registered sex offender
Further, if you have a criminal record with a serious violent felony or are required to register as a sex offender, then the charge is a “wobbler” regardless of the amount.
Penalties For Penal Code 476
Penalties for Misdemeanor Check Fraud:
- Up to one year in county jail
- And/or a fine up to $1,00010
Penalties for Felony Check Fraud:
- If probation is granted (up to 3 years), the court can impose county jail of up to one year
- Or county jail of 16 months, 2 or 3 years11
- And/or a fine up to $10,000
- If the crime was one of attempt and no funds, services or goods were obtained, then the sentence will be half of what would have been imposed pursuant to PC 664
- Possible check diversion program in lieu of jail, if available, whereby once restitution and completion of the program is accomplished, charges will be dismissed.
Can you be Sued in Civil Court for Check Fraud?
There is also a civil penalty associated with PC 476 if convicted that is found under California Civil Code Section 1719 but which may be circumvented if the payee gives you the opportunity to make full restitution, which you do, and you pay up to $25 as service fee for the bad check, and up to $35 as service fee for all subsequent false checks you may have submitted.
Your failure to do this if demanded by the payee can subject you to paying the full amount of the check and three times its amount or not less than $100 nor more than $1,500.
There are defenses to check fraud, usually based on lack of intent.
- You lacked knowledge that the check was false, forged or altered
- You had no intent to pass a false, fictitious or altered check
- The check or the amount or some aspect of it was such that no reasonable person would have believed it was genuine
- You had the honest belief there were sufficient funds in the account or that you had overdraft protection
- You put a “stop payment” order to the bank because of a legitimate dispute with the payee
- You were the victim of identity theft
What if I Never Gave the Check to Anyone?
It is not a defense that you merely forged or altered the check and did not present it to anyone. Mere possession is sufficient to convict you.
What if I Was Not the Person Who Altered the Check?
It is irrelevant if someone else did the forgery or altering so long as you had knowledge of its falsity and had it in your possession. It is also sufficient for purposes of committing check fraud to possess a blank check if it is false or forged and you knew it.
What if I Offer to Pay Back the money?
It is not a defense if you had experienced remorse and offered to make restitution to the person or entity that you defrauded. This may be a mitigating circumstance for purposes of sentencing but does not excuse the crime.
Forgery – PC 470
The forgery statute encompasses checks as well as other legal documents or instruments such as court orders or judgments, deeds to land or wills. You can be convicted of forgery if you:
- Forge or sign someone else’s name on a check without consent or sign the name of fictitious person or in the name of a fictitious entity
- Forge the name or seal of another person or the handwriting
- Falsify, alter or otherwise change a legal will, deed or court judgment
The penalties are the same as for PC 476.
If you passed off the bad check for more than $950 and acquired funds, services, property or goods with it, then you may be charged with both check fraud and grand theft.
If the amount of the theft was more than $65,000, then you face state prison time. For attempted grand theft, your county jail or state prison time is one-half of what would have been imposed if the crime had been completed.
Passing a forged, altered or fictitious check and receiving goods valued at $950 or less is petty theft as well as violation of the state’s check fraud laws.
It is a misdemeanor with a sentence of up to 6 months and a fine up to $1,000. If it is attempted petty theft, the sentence is one-half of what the court would have imposed if the goods or funds had been obtained.
Under California’s Realignment law, you do face up to 3 years in jail but none of your time is spent in state prison so that your conviction can be eligible for expungement.
Misdemeanors and many felony convictions are eligible under Penal Code 1203.4 for expungement, For most convictions under PC 476, you should be eligible to apply for expungement.
Take An Expungement Eligibilty Test
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- Pass or Attempt to Use Deﬁned. People v. Tomlinson (1868) 35 Cal. 503, 509; People v. Jackson (1979) 92 Cal.App.3d 556, 561 [155 Cal.Rptr. 89], overruled on other grounds in People v. Anderson (1987) 43 Cal.3d 1104, 1122 [240 Cal.Rptr. 585, 742 P.2d 1306 [↩]
- Altering a check to make it look genuine evidences an intent to defraud someone by changing the date, amount or routing number. By doing any of these things, you are transforming the legal effect of the instrument so that its original nature is altered. [↩]
- A fake check may look more genuine than an altered one but it is one that has been signed by a fictitious person or references an account on a non-existent bank. Presenting a check that is otherwise legal but drawn on a closed account is not within PC 476 but an offense under another check fraud penal code sections. Most cases concern situations where the defendant forges someone else’s signature on the check. [↩]
- Intent to Defraud. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127 Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38 Cal.Rptr.2d 176: Intent to Defraud Entity. Pen. Code, § 8. [↩]
- Your intent is relevant under the code. You exhibit fraudulent intent by purposely or willfully intending to defraud another person or entity or to deceive them in order to gain a benefit from them, including funds, services. You do not have had to receive the funds, services or goods to satisfy the elements of PC 476. [↩]
- California Penal Code 476 PC – “California’s check fraud law” – Every person who makes, passes, utters, or publishes, with intent to defraud any other person, or who, with the like intent, attempts to pass, utter, or publish, or who has in his or her possession, with like intent to utter, pass, or publish, any fictitious or altered bill, note, or check, purporting to be the bill, note, or check, or other instrument in writing for the payment of money or property of any real or fictitious financial institution as defined in Section 186.9 is guilty of forgery. [↩]
- Alteration Deﬁned. People v. Nesseth (1954) 127 Cal.App.2d 712, 718–720 [274 P.2d 479]; People v. Hall (1942) 55 Cal.App.2d 343, 352 [130 P.2d 733]. [↩]
- Explanation of “Fictitious.” People v. Mathers (2010) 183 Cal.App.4th 1464,1467–1468 [108 Cal.Rptr.3d 720] [↩]
- People v. Mathers (2010) 183 Cal.App.4th 1464, 1468. [↩]
- California Penal Code 473 [↩]
- California Penal Code 18, California Penal Code 1171(h)(1). [↩]
- Our California check fraud defense attorney’s practice law in the following jurisdictions. Santa Clarita Valley, Antelope Valley, San Fernando Valley, San Gabriel Valley, Southern California, Los Angeles County, Santa Monica, Hollywood, Glendale, Sherman Oaks, Encino, Studio City, Burbank, Van Nuys, Chatsworth, San Fernando, Santa Clarita, Valencia, Palmdale, Lancaster, Pasadena, Alhambra, Malibu, Ventura County, Santa Barbara County, Orange County, San Bernadino County [↩]