Check fraud has become a common fraud crime in Los Angeles, California that is punishable under the forgery laws. This is one of those serious white collar crimes that will get you a long prison sentence and hefty fines if you get convicted. There may be a possible way to avoid all these penalties if you get in touch with LA Criminal Defense Attorney law firm the moment you are arrested. We have represented many people in Los Angeles and the neighboring cities and we will do all we can to get you acquitted or your charges reduced.
An Overview of California Check Fraud Laws
Penal Code (PC) 476 describes the crime of check fraud as writing, making, possessing, passing, or attempting to write, pass or make a fake, forged or altered check for the purposes of acquiring property, funds or any other services in a fraudulent manner. The crime covers fake checks which have fake bank accounts and people’s names as well as altered checks where true information has fraudulently been changed. The information that can be altered includes the check amount, the routing number, the payee of the check, the signature, and the date. Check fraud falls under California’s wide category of crimes of forgery.
Elements of a Check Fraud Crime
The prosecutor has to prove some facts to the court beyond any doubt before you get convicted of check fraud. They include;
That you made, possessed, passed off, wrote, or attempted to make, write or pass a fake, altered or forged check. A fake check means it is fictitious, plain and simple. For instance, a check written by a bank that does not exist or the one signed by a non-existent person is a fake check. An altered check, on the other hand, is one onto which information has been added, erased or changed so that it has a different appearance from the original and it loses its actual legal effect. Thus, the prosecutor has to keenly observe the features of the check to find out if they are out of the ordinary for you to be found guilty.
You knew the check was forged, altered or faked but you still possessed, passed off or tried to pass it off. The prosecution must provide evidence that you had the knowledge of the check being fake or forged. If you didn’t know, then you are not guilty. Note that it is possible that a defendant may not know what constitutes a genuine check.
You had the intention of defrauding an entity or a person with that fake, forged or altered check. Note that intent alone is sufficient to get you convicted. It doesn’t count whether someone was actually defrauded or incurred a loss. What matters is intent. Therefore, you are guilty as long as you had the intention of unlawfully gaining property or money.
You passed off or presented the check as genuine. The prosecutor has to show that you knew the check was fake yet you presented or attempted to present it as though it was real. You may have presented the check by conduct or words and you may have done it directly or indirectly. Check presentation is done any time someone uses or attempts to use an altered or a fake check.
Prosecutors also seek to determine if you had any special motive to commit check fraud. For instance, if you wanted to pay off a huge debt or if had to make a large purchase. They also examine previous patterns to see if there is any trend. Also, they look for any records of bouncing checks or constantly floating purchases.
Also, note that if you drew a check on a bank that actually exists, you had the check signed by a person that exists and you had a genuine account in that bank but it was closed, you will not be convicted of check fraud under PC 476 if you tried to cash the check. The argument is that if the account wasn’t closed and if it contained adequate funds, the check would have a legal ground for negotiation. The fact that your account was closed does not alter the nature of the check. It just makes it uncashed. Thus, due to the fact that the check was real, possessing it (although it may be unlawful as provided in other statutes) isn’t prohibited under PC 476.
Penalties for Check Fraud
Check fraud is punishable under California forgery laws and is a wobbler offense. This means that at the prosecutor’s discretion, he or she can charge you with a misdemeanor or felony check fraud. The charges depend on the circumstances surrounding the case and your criminal record. Misdemeanor charges carry a penalty of a one-year maximum county jail sentence and a fine not exceeding $1,000 while felony charges attract summary probation and a maximum of one year sentence in county jail, 16 months, 2 or 3 years county jail sentence and a maximum fine of $10,000.
You can be charged for a felony check fraud if you have had at least three prior forgery convictions, if you have been convicted at least three times for petty theft on grounds of forgery as per Penal Code 470 or for bad checks as per Penal Code 476(a), if you have had any prior conviction for a serious crime of violence, or if you are a registered sex offender. Furthermore, if you have any record of a conviction of a serious crime of violence and are a registered sex offender, then the charges against you are wobbler irrespective of the check amount.
If the offense you are being charged with is that of attempt (meaning you did not obtain any money, property or services) you will be sentenced for half the period of the normal sentence according to Penal Code 664. Additionally, there is a possibility of being required to enroll in a check diversion program instead of serving jail time. Your charges will then be dismissed once you have completed the program and the property or money has been restituted.
Proposition 47 in Relation to Check Fraud
Proposition 47 was enacted by a voter initiative in 2014. This proposition allows for non-violent and less serious crimes to be reduced to misdemeanors instead of being charged as felonies. However, this is only possible if the defendant has no previous convictions for rape, murder, gun crimes, or sex offenses. Relating to this proposition, check fraud will be charged as a misdemeanor at any time if the defendant has not been convicted of identity theft (Penal Code 530.5), if he or she has not had any prior convictions of violent crimes, and if the fraud check value is less than $950.
Can a Civil Lawsuit be Filed Against You for a Fraud Crime?
Check fraud also has a civil penalty if you are found guilty. The crime is punishable under Civil Code 1719 of the state of California. However, the defendant can avoid this penalty if, on the demand of the payee, he or she restitutes all the amount or the property, pays a maximum of $25 service fee for the fraudulent check and another service fee of utmost $35 for all other subsequent fraudulent checks you might have presented. If you fail to comply with the payee’s demands, you may be required to pay the full check amount and 3 times the check amount or between $100 and $1,500.
If circumstances are in your favor, check fraud penalties can be reduced to lenient ones. For example, actual check fraud can be reduced to an attempted check fraud offense.
Here are some of the common defenses that we use to defend people who are charged with check fraud.
Lack of fraudulent intent
One of the elements of the crime as we saw earlier is intent. If you don’t have the intent to commit check crime, then you are not guilty. For example, if you were just trying out a new technology by forging or faking a check with no intent to cash or use it, you should not be convicted of check fraud. In addition, if you signed a check on another person’s behalf or altered some information on it with an honest belief that you had the right to do so, your attorney can argue that you had no intent to commit fraud. However, your attorney needs to know how to validly argue this defense because the mere possession of the fraudulent check is a crime in Los Angeles.
Lack of Knowledge of a faked or altered check
You may pass or attempt to pass a check you didn’t know it was fake or forged. For instance, a person pays you back the money they owe you in the form of a check then go cash it. In the process, you get arrested on grounds that the check was fake. You will not be convicted because it isn’t you that faked the check, and since you haven’t seen a fake check before, you could not have known what one looked like, and neither did you have any reason to believe the check wasn’t real.
In some cases, some employees are given permission to handle checks and make some alterations. For instance, if you were permitted by the individual authorized to grant the permission to alter information on a check or even sign on someone else’s behalf, you are not guilty of check fraud.
It was a case of mistaken identity
If you were cashing a check that was passed to you and you didn’t know it was fake then got charged for it, your attorney could argue it is not you who should be convicted but the person from whom the check originated. Our attorneys with the knowledge and skills to resolve such cases of false accusation. They will do a thorough investigation and expose any injustice against you.
You honestly believed you had sufficient money in your account or had overdraft protection
It is a check fraud offense to cash a higher check amount than the actual amount you have in the bank account. For instance, let’s say you cash $100,000 but your account balance is $10,000. Your attorney can argue the defense above because maybe there is a time you withdrew the money and didn’t keep track. Therefore if your attorney can show that you truly believed to have $100,000 in your account while withdrawing, you are not guilty of check fraud charges.
Anyone could not have taken the check seriously because it was fake for obvious reasons
If your attorney can show that the check you possessed would have been ruled by any reasonable person as fake, then you will not be convicted. It could be that you just trying to prank the payee with the check. Basically, the prosecutor needs to prove that not only was the check forged or fake, but it was also something serious. For example, if you scribble a check, say, on a piece of cloth then try to cash it, no one will take that seriously. Therefore, the check needs to be of the nature that a person can be defrauded by it.
Other defenses could include lack of sufficient evidence that it was actually you who made the fake or forged check or altered the check. In other cases, your attorney can argue that the alteration made on the check had nothing to do with an intent to publish, pass or cashing the check. Note that offering to restitute the funds you defrauded out of the remorse you felt is not a valid defense. However, it is a mitigating factor that may lead to the reduction of your sentence but it doesn’t justify the crime.
These defenses are applicable depending on the circumstances of the case. Our attorneys will present any valid evidence there is to support these defenses. For instance, they will go through your financial records to find out if there is anything substantial, examine your criminal history, present witnesses who will corroborate your testimony and challenge any evidence presented by the prosecutor to enable you to get acquitted or your case dismissed. Where acquittal or dismissal is not an option, they will negotiate a plea agreement that they know will favor you.
Related Offenses to Check Fraud
There are certain California offenses that relate closely to check fraud because they are punished in connection with PC 476. The crimes include;
Forgery (PC 470)
Forgery laws of California are quite broad. These laws prohibit anyone to have the intent to defraud another person or an entity. Defrauding occurs when one signs the name of someone else without the person’s consent or otherwise when one signs a non-existent person’s name on particular documents. Additionally, when you forge or counterfeit someone’s handwriting or seal or corrupt alter and falsify a deed, court judgment or a will, you will be in violation of PC 470.
What differentiates forgery from check fraud is the fact that forgery incorporates a wide range of documents including wills, title deed, etc. while check fraud is limited to checks, notes or bills. This means that if you have forged anything else apart from a check, note or bill then you will not be charged with check fraud but rather a crime of forgery.
However, forging another person’s name on a check could prompt the prosecutors to charge you with both forgery and check fraud. The good news is that if charged with both, the law provides that you only be convicted of either one of them if they were committed on similar conduct.
Forgery, just like check fraud, can be a misdemeanor or a felony. It also carries similar penalties as those of check fraud.
Bad Checks (PC 476(a))
The crime of bad checks is defined by writing and passing a check with the knowledge that there no sufficient money in the account to cover the entire amount of the check. You do this with the intent to commit fraud. The difference between bad checks and check fraud is that bad check laws deal particularly with inadequate funds while check fraud has to do with forgery. However, under certain circumstances, you can be charged with both bad checks and check fraud.
For instance, if you made a fake check using the name of a fake bank then tried to cash it you will be committing check fraud because the check-in itself is forged. Additionally, you will be in violation of PC 476(a) because obviously there is no adequate money to cover the check amount because you used a non-existent bank.
The crime of bad checks is a wobbler in California. It has the same penalties as those of check fraud unless the bad check value is $950 or less. In this case, it is charged as a misdemeanor. Apart from the criminal penalties, the payee can file a civil lawsuit and demand that you recover the full check amount in addition to other damages that amount to a maximum of $1,500.
Grand Theft (PC 487)
Theft laws of the state of California prohibit taking property or money that belongs to another person without consent from the person/entity. If the property or money values higher than $950 it qualifies to be grand theft. In relation to check fraud, it means that you made or passed a fake, forged or fraudulent check valued higher than $950 and you obtained money or property with the check. In this case, you could be convicted of the offense of check fraud and grand theft.
Grand theft can be charged as a misdemeanor or a felony depending on factors such as your criminal record and the circumstances of the case. It carries similar punishments as check fraud except if the property value or the money in question exceeds $65,000. In this case, the crime becomes a felony regardless of the circumstances of the case or your criminal history. For this, you are punished by serving time in state prison. If you are charged with attempted grand theft, the time you serve is half the time you would have served for grand theft.
Petty Theft (PC 484)
Petty theft is the illegal taking of money or property that has a total value of less than $950 or $950. This means that if you acquire or attempt to acquire money or property using an altered or a fake check, you could be charged with both petty theft and check fraud. California law identifies petty theft as a misdemeanor whose consequences include a maximum of six months in county jail and not more than $1,000 in fines. Attempted petty theft carries half the sentence of the actual crime.
Check Fraud Expungement
Expungement is the process by which your criminal record is deleted from the national database. Multiple charges under Penal Code 476 would render one eligible for expungement application. First, you must have completed your sentence and restituted all the amount of the fraudulent check and any other damages as requested. You also should not have been convicted and serving time for any other offense. Application for expungement is done at least a year after the court has passed judgment on your case. If you have been sentenced to state prison, then you will not qualify for expungement: for instance, if you have been convicted of both grand theft of a value of $65,000 and above and check fraud.
If you are being charged with a crime feel free to contact our Los Angeles Criminal Defense Lawyer for a free consultation.