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California law can charge anyone who writes, passes or tries to pass a bad check with a crime under Penal Code 476a. 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.
The elements of Penal Code 476(a) are as follows:
- You willfully or purposely wrote, delivered, presented or attempted to pass a check,
- That you knew had insufficient funds to cover the amount,
- And you possessed the intent to defraud another party
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.
Intent 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).
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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.
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.
As a misdemeanor, you face up to one year in county jail and a fine up to $1,000.
As a felony, the sentence is 16 months, 2 or 3 years in state prison and a fine of no more than $10,000. 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.
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 well.
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.
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.
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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.
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.
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