WHAT IS CHECK FRAUD?
Pursuant to the California Penal Code §476, it is a punishable offense for someone to make, use, or possess a check, with the intent to defraud another person, and that intent is manifested by the presentation of that check paired with the assertion that the check is genuine. Section §476 of the California Penal Code can be found here: http://codes.findlaw.com/ca/penal-code/pen-sect-476.html
The following is a non-exhaustive list of conduct an individual could engage them, which would expose them to charges for check fraud under California Penal Code §476:
- Stealing someone’s check book, writing in an amount, forging their signature, and presenting it to a bank in an effort to obtain quick cash.
- Taking an existing check, and altering the amount of the check, in an effort to obtain more money.
- Using a check you know is fake, because someone told you it was fake.
- Utilizing machines, or a computer, or anything else, to create a fake check.
To constitute a check fraud in California Penal code, the prosecution must prove the following evidence in court:
1. The defendant possessed, made, passed, used, attempted to pass or use a false check, bill, note, or other legal writing for the payment of money or property.
2. The defendant knew that the document was false.
3. When the defendant possessed, made, passed, used, attempted to pass or use the document, he/ she intended to defraud.
4. When the defendant possessed the document, he/she intended to pass or use the document as genuine. "CALCRIM" 1935
It is important to understand the details of all the elements the Prosecutor must prove beyond a reasonable doubt, in order to obtain a conviction for check fraud. If the Prosecution does not prove each, and every, element beyond a reasonable out, you should not be convicted of check forging. The attorneys at Orange County Criminal Attorney are experienced in many forms of criminal defense, include check forging cases. OCCA attorneys will vigorously fight to show your innocence.
WHAT DOES IT MEAN TO “MAKE ANY TYPE OF USES OF FALSE CHECK/BILL/NOTE”
California Penal Code §476 makes it a punishable offense to pass, alter, use, attempt to use, possess, or make a false check or any other type of written payment. The law is straightforward: if you have, use, or try to use a fake check, with the intention of using it as payment – you might be convicted of check fraud in California. The law punishes all forms of written documents that purport to be payment of any kind to another, where that document is fake.
ALTERED CHECKS OR BILL
California Courts have made clear that the act of “altering” a check occurs when you erase, add, or change the information on a check, which causes it to be different from the original and the effect is to appear real.
Common forms of actions, which would be considered “altering” in California include:
- Changing the date on a bill
- Changing the amount of money a check initially had.
UTTERS THE CHECK
California Penal Code §476 further defines it as a crime to “utter a fake check.” “Utter” is further defined as “use or attempt to use an instrument, whereby or in connection with which a person asserts or represents to another, directly or indirectly, expressly or impliedly, by words or conduct, that the instrument is genuine.” If an individual attempts to use a fake check to make a payment of any kind, the individual can be charged with fraud.
WHAT DOES KNOWLEDGE THAT A DOCUMENT IS FALSE MEAN?
Another key aspect of the crime is that the individual actually knew about the check being fraudulent. If the Prosecution cannot prove the individual knew the check was falsified, there can be no conviction under California Penal Code §476.
For example, a dentist who received a check from one of his clients used the check to down his car loan. Unfortunately, the check was a fake. The dentist cannot be found guilty of check fraud under California Penal Code §476, because the dentist had no knowledge that the check was faked. In this case, the dentist would be found innocent if the case went through trial.
INTENT TO DEFRAUD
Another key component that the Prosecution must prove beyond a reasonable doubt is that the individual intended to defraud the person they were paying. California Penal Code §476(a) makes clear that the crime does not occur unless the person showing the check has the intent to defraud, draw, deliver, or utter the false check (see above for knowledge) with the objective being the payment of some sort.
In addition to that, the Prosecution must convince the jury that the individual had the specific intent to deceive another person out of their property of money. When there is a specific intent crime, the result of the conduct is irrelevant for purposes of establishing a conviction. That means, as long as you intended to deceive another person with a fake check, it does not matter if you actually succeeded; the intent to defraud is sufficient.
Additionally, the intention to defraud component can be further defined as attempting to gain an advantage over another person through deceitful means or to induce a person to part with their property or money based on misrepresentations made by the Defendant with the precise purpose that the outcome occur.
Tom has a bank account that only contains $15. Robert has a mortgage payment coming up in the next few days, and doesn’t know what to do. Tom writes a check for $15,000 and takes the check to the bank to make his mortgage payment. At the desk, Tom informs the cashier that there is currently not enough money in his account to pay the check, and asks the cashier to hold off on cashing it until the next week. The cashier forgets, and attempts to draw on it immediately. Tom cannot be convicted of check fraud in this situation because he never intended to defraud the bank; he told the cashier in no uncertain terms that the check was no good at the present moment. However, if Tom had neglected to tell the cashier that the check was no good, a jury could infer intent from Tom’s conduct, and Tom could be convicted of check fraud.
WHAT DOES IT MEAN TO REPRESENT A CHECK AS GENUINE?
The final piece of the puzzle for the Prosecution to prove beyond a reasonable doubt is that the Defendant represented the check as genuine; to put it plainly, the Defendant must use the check as if it were a real check. This can be proven by words or conduct. An example would include, “this check is real”, or in responding to a landlord’s demand of “give me my rent money, or get out” an individual presents a check with the exact amount of rent written on it.
What are the Penalties if I am Convicted of Check Fraud?
Check fraud is what is known as a “wobbler offense” in California. This means the Prosecution can bring the charge as either a misdemeanor or a felony, depending on the circumstances surrounding your case.
If you are charged with misdemeanor check fraud, you could face up to one (1) of incarceration, a fine not to exceed one-thousand dollars ($1,000), or a combination of both.
If you are charged with felony check fraud, you could face much more severe penalties, depending on how extreme the facts of your case are. Felony penalties could range from sixteen (16) months to three (3) years of incarceration, a fine of up to ten-thousand dollars ($10,000), or a combination of both.
WHAT ARE THE LEGAL DEFENSE MY OCCA ATTORNEY CAN ARGUE IF I AM ACCUSED OF CHECK FRAUD?
If you are charged with check fraud in California, the Prosecution can charge you with a misdemeanor, or a felony, depending on the culpability of your conduct. If you are convicted of either of these crimes, it will go on your criminal record; though misdemeanors generally have a lesser impact. Employers routinely conduct background checks on potential hires, and a criminal background for a crime of this nature can have a significant impact on your job prospects. If you have been charged with either misdemeanor, or a felony, check fraud, contact an attorney from Orange County Criminal Attorney immediately. OCCA has proven expertise in defending clients facing criminal charges. This is because of the extensive experience, and training, that our attorneys receive. With competent counsel on your side, they could put forth a number of defenses in an effort to obtain a not guilty verdict for you. These defenses include:
- No fraudulent intent
One defense that Orange County Criminal Attorney could advocate in your defense is that you never intended to defraud the person you paying. Utilizing the example above with Tom, it is entirely possible that your words and conduct did not suggest the check was good, as it, but rather that it would be good in the near future. This could reduce the charge, the penalties, or even lead to an outright dismissal.
- False accusations
Under California Law, there are some crimes where it is easy to falsely accuse someone of breaking the law. Check fraud is one of those crimes. There are multiple reasons why someone would do this, but the attorneys at Orange County Criminal Attorneys are familiar with clients who have been falsely accused. If this is what has happened to you, rest assured, OCCA attorneys will bring it to light, and pursue every avenue available to allow you to walk away without any punishment.