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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:
- You made, passed off, possessed or attempted to make or pass,
- An altered1 , forged or fake check,
- Which you knew was altered, forged or faked2 and,
- With the intent to defraud someone or entity and,
- By representing that the check was real or genuine3
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 forged.
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. Under Proposition 47, you can only be charged with a felony if the subject amount of the check is no more than $950 and you did not engage in a form of identity theft. For instance, you did not appropriate someone’s Social Security Number or other confidential information when trying to pass or present the check.
The Prosecutor, though, can still charge you with a felony if you have the following criminal record:
- 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
- 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.
If a misdemeanor, you face:
- Up to one year in county jail
- And/or a fine up to $1,000
As a felony, the law imposes the following:
- 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 years
- 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.
Under California’s Realignment law, you do face up to 3 years but none of your time is spent in state prison so that your conviction can be eligible for expungement.
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.
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Lack of Proof of Possession
The DA must prove that you knew or were aware of the presence of the drug on your person or that you were in constructive possession. Direct or actual possession means the drugs were found on you and no one else had equal access. Constructive possession means you had control over the drugs but that you also were aware of them and their nature. You could be at a friend’s house when police appear and search and find drugs and be charged with possession. However, mere proximity to an illegal substance is not sufficient to convict you.
The DA has the burden of proving beyond a reasonable doubt that you were aware that the drug was in your presence and that it was a controlled substance. If someone else had control over your car, jacket or suitcase where the drugs were found, then this burden may not be satisfied.
Facts supporting knowledge of the nature of the drug in your possession might be that you were given the substance in a club setting where its use was well known or where previous arrests were made or you have a prior conviction for drug possession. Otherwise, the DA might not be able to show that you knew the character of the drug.
Lack of Intent to Sell
The DA can attempt to convict you for intent to sell based on the quantity you possessed. But if no baggies, cash, scales or similar paraphernalia associated with someone in the business of selling controlled substances are found with you, then you might convince a court or jury that you only possessed it for personal use. If so, you may be eligible for a diversionary disposition or a less severe sentence and an opportunity to have it expunged.
Illegal Search and Seizure
Law enforcement officers are enforcers of the peace and the law and as such must respect your civil and constitutional rights when stopping or detaining you. A peace officer may generally not search you, your home or car in the absence of a warrant unless there are certain circumstances that allow it. However, you might be subject to a pat down search for weapons but only if the police possessed a “reasonable belief based on specific articulable facts which, taken together with the rational inferences to be drawn from those facts reasonably warranted the officer into believing that (you) (are) dangerous and may gain immediate control of weapons” (Terry v. Ohio). This is a standard that is less than probable cause to arrest someone.
If you are arrested, then you are subject to a search of yourself and an allegedly limited search of the immediate area for weapons as well.
However, it is not that unusual for an officer to violate the rights of criminal suspects by forcing them to submit to a search or by thoroughly searching a person or his home or car who is suspected of a crime without probable cause to do so or pursuant to a warrant. Planting of evidence does occur as well.
If you are stopped for a traffic violation, your car may not be searched unless the officer has probable cause to believe you are carrying controlled substances in your car, weapons or other evidence of a crime, usually by it being in open view.
In other cases where officers suspect that you may be possessing illegal drugs or are selling them, then a search warrant is usually obtained. Search warrants limit the extent, place, time and scope of the search. If officers are looking for a drugs in someone’s home, they may not search your car merely because it was parked next to it or you were in the house that was being searched.
If a constitutional violation is suspected, your attorney will file a motion to suppress the incriminating evidence.
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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.
Grand theft is the taking of someone else’s property without consent to deprive that person of their property permanently or long enough 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. The value of the property taken must be more than $950.
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.
Misdemeanors and many felony convictions are eligible under Penal Code 1203.4 for expungement, with the main condition being that you spent no time in state prison. For most convictions under PC 476, you should be eligible to apply for expungement.
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- 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. [↩]
- 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. [↩]