Penal Code 476(a): Writing Bad Checks

California law can charge anyone who writes, passes or tries to pass a bad check with a crime under Penal Code 476(a)¹.

It is a crime, for example, to present or pass a check on an account that you knew had insufficient funds and you intended to commit a fraud.

Below we provide in depth understanding of this crime under California Law.

How Does The Prosecutor Prove The Crime

The elements of Penal Code 476(a) are as follows:

1. You willfully or purposely wrote, delivered, presented or attempted to pass a false or altered² check³,
2. You knew had insufficient funds to cover the amount, and
3. You possessed the intent to defraud another party⁴

Knowledge

You must have had knowledge that the account upon which the check was presented lacked enough funds to cover the full amount of the check.

Bank records will indicate when the account fell below the check amount, if it was closed earlier or if it recently went below the check amount.

Attempt to Pass or Use

This crime includes an attempt to pass a check since the act of writing it out completes the crime as well as merely giving it to someone for them to accept and to give you funds, services or goods in return.

Intend To Defraud Another Party

Your intent to defraud another party is essential in completing the crime.

Even if the other party rejects the check and no goods, services or funds are given, you have violated Penla Code 476(a).

Legal Defenses

There are a number of defenses available under Pc 476a:

• You had a reasonable belief that your account had sufficient funds or that it had overdraft protection. This defense may not have much credence if you have prior convictions for passing bad checks or any other kind of criminal history pertaining to forgery, counterfeiting or fraud.
• The check was post-dated or the payee was advised not to deposit or cash the check until after a certain date but attempted to deposit or cash it nonetheless.
• You placed a “stop payment” on the check so long as you believed there was a valid dispute with the payee or that the payee was not entitled to the funds.
• Identity theft. Someone stole your checks and attempted to write or pass a check off for more than the funds in your account.
• Someone forced you to write the check by threatening you with physical harm or by defrauding you.

In all of these defenses, you are asserting a lack of intent to defraud.

Penalties For Penal Code 476(a)

Violation of the bad checks law is a “wobbler” offense so that the prosecutor has discretion to charge you with either a misdemeanor or felony, depending on your criminal history and the nature of the immediate case.

Penalties	Misdemeanor	Felony
Fine	Up to $1,000	Up to $10,000
Probation	Informal probation	Formal Probation
Jail or Prison	Up to 1 year	16 months, 2 or 3 years

You could be sentenced, if available, to a bad check diversion program provided you make full restitution if applicable and an intervention program, the cost of which is borne by you.

Proposition 47

This offense comes within Proposition 47 whereby the DA can only charge you with a misdemeanor if the amount of the check was no more than $950. However, the DA can charge the offense as a felony if your criminal record reveals that you have 3 or more convictions for the following offenses:

• Violation of PC 476a
• Violation of PC 470 (Forgery)
• Violation of PC 476 (Check fraud)
• Any other crime of forgery or counterfeiting

You face felony charges if you also have a prior conviction for a serious violent felony or you are a registered sex offender or you had a conviction for vehicular manslaughter with DUI.

Any out of state conviction that would be classified under any of these categories are considered as well⁵.

Under California’s Realignment law, you do face up to 3 years but if none of your time is spent in state prison, your conviction can be eligible for expungement.

Civil Penalties

You are subject to civil penalties if convicted under PC 476a pursuant to Civil Code Section 1719 if the victim advises you in writing to make full restitution along with a $25 service fee for the bad check and $35 for any other checks you may have passed after the original one, and you fail to do this.

Civil penalties include paying the full amount of the check and up to 3 times the amount of the check, or no less than $100 nor more than $1,500.

Related Offenses

Check Fraud-PC 476
If the check you intended to pass or did write out was fictitious and which had a real or fake account connected to it, then your offense would come under PC 476.

It is also a “wobbler” and subject to Proposition 47. The penalties and sentence are the same as for PC 476.

Forgery-PC 470
You commit forgery when you sign a check with someone else’s name and without that person’s consent or you sign the name of a deceased or non-existent individual. You also commit forgery by altering, forging or corrupting a will, court judgment or land deed.

You could be charged with both forgery and under the bad checks law if you forged someone’s name on a check and was aware that the account had insufficient funds.

The penalties and sentence are the same as for PC 476a.

Grand Theft—Penal Code 487 PC
Grand theft is the unauthorized taking of another person’s property with a value of more than $950 if done so without that person’s consent.

You must have had the intent to deprive that person of their property permanently or for a long enough period so that they would be deprived of a significant portion of it or its enjoyment and you moved and kept the property for even a brief time.

If the bad check that you passed exceeded $950 and the other party provided you with funds, services, property or goods, then you may be charged with both passing a bad check and grand theft. If the amount of the theft was more than $65,000, then you face state prison time.

Should you only have tried or attempted to commit the crime, your county jail or state prison time is one-half of what would have been imposed if the crime had been completed under PC 664.

Petty Theft-PC 484 and 488
Passing a bad 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.

For attempted petty theft, the sentence is one-half of whatever sentence would have been imposed if you had passed the bad check.

Expungement For Penal Code 476(a)

1. California Penal Code 476(a) – Any person who, for himself or herself, as the agent or representative of another, or as an officer of a corporation, willfully, with intent to defraud, makes or draws or utters or delivers a check, draft, or order upon a bank or depositary, a person, a firm, or a corporation, for the payment of money, knowing at the time of that making, drawing, uttering, or delivering that the maker or drawer or the corporation has not sufficient funds in, or credit with the bank or depositary, person, firm, or corporation, for the payment of that check, draft, or order and all other checks, drafts, or orders upon funds then outstanding, in full upon its presentation, although no express representation is made with reference thereto, is punishable by imprisonment in a county jail for not more than one year, or pursuant to subdivision (h) of Section 1170. [↩]
2. 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 [↩]
3. 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] [↩]
4. 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 [38Cal.Rptr.2d 176] [↩]
5. California Penal Code 476(b) – However, if the total amount of all checks, drafts, or orders that the defendant is charged with and convicted of making, drawing, or uttering does not exceed nine hundred fifty dollars ($950), the offense is punishable only by imprisonment in the county jail for not more than one year, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290. This subdivision shall not be applicable if the defendant has previously been convicted of three or more violations of Section 470, 475, or 476, or of this section, or of the crime of petty theft in a case in which defendant’s offense was a violation also of Section 470, 475, or 476 or of this section or if the defendant has previously been convicted of any offense under the laws of any other state or of the United States which, if committed in this state, would have been punishable as a violation of Section 470, 475 or 476 or of this section or if he has been so convicted of the crime of petty theft in a case in which, if defendant’s offense had been committed in this state, it would have been a violation also of Section 470, 475, or 476, or of this section. [↩]