What is a Fraudulent Gambling / Gaming Charge?
The law in California is designed to maintain a fair gambling industry. The Department of Justice Bureau, which is in charge of gambling in California, began regulating the gaming industry in 2008. The 2008 Act, created limitations and regulations focusing exclusively on the gaming industry. The purpose of the Act was to guarantee the integrity, and to insulate the gaming industry from corrupt or criminal elements. In addition to the regulations, the California Penal Code creates a penalty of incarceration for those who with the purpose of committing fraud against another person, to permanently obtain property of value from someone else, engages in the act of gambling.
California Penal Code §332 creates defines the crime as (1) a person who uses the game “three card Monte” or any other device, sleight of hand, or purporting to be a fortune teller, or any other use of cards or implements, which involves placing wagers obtains property or money of value from another person through fraudulent means, will be guilty of the offense of fraudulent gaming.
In order to understand the crime set forth in California Penal Code §332, it is necessary to identify the type of conduct that will result in a conviction for fraudulent gaming. It should be noted that the statute does not make gambling, or fortune telling illegal, it only punishes individuals who attempt to fool the public into giving them money or property through fraudulent conduct.
The most common act that would satisfy the elements of §332 is the act of cheating at a game of cards. A popular “trick” is known as the “three card Monte. This “trick” involves convincing an individual, known as the “mark” into wagering property or money on the assumption that they will be able to find the proper card out of three cards, which are face down.” This game is identical to the shell game, except that the Defendant is using playing cards as opposed to shells.
It is important to note that gambling fraud is a wholly different crime that the crime of illegal gaming. §332 only prohibits the utilization of “tricks” in gaming to defraud an individual out of their property or money permanently. A fair win in a game of poker will not satisfy the elements necessary to be convicted of Fraudulent Gaming.
What is the Legal Definition of Gaming Fraud, or Gambling Fraud in California?
Pursuant to California Penal Code §§332, the Prosecutor must prove three elements to the jury beyond a reasonable doubt:
- The Defendant’s conduct was for the purpose of “tricking” another person;
- Into wagering their property or money;
- By utilizing the game of “three card Monte” pretending to be a fortune teller, or any other game where the Victim cannot win by virtue of the nature of the game itself.
Because the Prosecutor will have to prove all three elements beyond a reasonable doubt, it is important to understand what each element of the crime entails. The attorneys at Orange County Criminal Attorney have vast experience dealing with a wide array of criminal charges; including fraudulent gaming. With their superior understanding of the law, and the criminal process as a whole, your OCCA attorney will craft the best defense available to the charges against you. Ultimately obtain an acquittal, or if convicted – a favorable punishment. A detailed analysis of the elements of Fraudulent Gaming is set forth below.
What Does “to Act With the Intent to Defraud Another” Mean as it Relates to an Fraudulent Gaming Charge?
In order to be convicted of the crime of Fraudulent Gaming, the Prosecutor must first prove that the Defendant had the intent to trick another person when they began the act which forms the basis for the charges against them. To “trick” another person for purposes of this crime, the Defendant must engage in conduct that involves cheating to gain an unearned advantage over another person through a mechanic that is not sanctioned by the rules of the game itself. You cannot be convicted of fraudulent gaming if the Prosecutor fails to prove, that beyond a reasonable doubt, your intent when engaging in the conduct was to defraud.
Fraud is defined as presenting realty, or fact, with conduct or words designed to mislead someone to conclude something other than the truth. However, if a person is playing a game, and following the rules of the game without employing any tactic designed to mislead the other person (beyond the actual rules allowing deceit – poker for example) into parting with their property, you will not be convicted of fraudulent gaming as it is defined in the California Penal Code.
As it relates to fortune telling, the California Supreme Court has defined fraud. To paraphrase the Court, it must be admitted that a large number of people who engage in “fortune telling” are violating §332. Most people who purport to be fortune tellers do not truly believe that they can predict the future. In that case, when someone obtains property of value, in exchange for their “services, are engaged in fraudulent activity. On the other hand, it is also true that some “fortune tellers” truly do believe that their visions are visions of events that have not happened yet. When a person who truly believes they are predicting the future to their clients, they are not engaged in fraudulent activity, no matter how unlikely it is that their predictions are in fact true. Thus, the crux of this element of the crime is the subjective belief of the person committing the act.
What Must I Be Attempting to Obtain to be Convicted of Fraudulent Gaming?
The next element a Prosecutor will have to convince the jury of is that the fraudulent conduct was with the intent to convince another person to permanently part with their property or money. Property is defined as anything that has a value, which can be measured in dollars and cents. Thus, it is no defense to say that you tricked the victim out of poker chips or tickets.
Tom and Vince love the game of poker, but they also love money. Every other Thursday, Tom and Vince play poker at various house games around San Diego. When they enter the room, they pretend that they have never met each other before. Each time Vince or Tom are up to shuffle, they shuffle the deck and stack it so that the other will have the winning hand, while the other players have hands that someone would likely invest money in. Tom and Vince are engaged in fraudulent gaming because when they went to the game, they had the intent to “stack the deck”, in order to obtain the other player’s chips (which represent actual money), and poker is a game of gambling.
"three card Monte", betting, gambling or pretensions to fortune-telling
California Penal Code §332 defines the crime as involving any games. As noted above, this law does not prohibit gambling, it only prohibits fraudulent conduct in relation to that game for the purpose of gaining money or property in an unlawful way.
What Are the Penalties I Might Face if I Am Convicted of Fraudulent Gaming?
Under California law, the punishment for fraudulent gaming will depend on how much the property the Defendant’s obtained was worth. It is similar to the distinction between petty, and grand, theft in California.
The charge can be brought as either a felony, or a misdemeanor, depending on the value of the property itself. This is described as a “wobbler.” If the property the Defendant’s obtained was worth less than $950, the charge will be a misdemeanor, if it is more than $950, it will be charged as a felony. The Defendant should also be aware that the Prosecutor will bring a theft charge against you in connection with the fraudulent gaming charge; this occurs as a matter of course and should not cause you additional concern.
The penalty associated with fraudulent gaming is the same as larceny if it is your first conviction. This means that you may face a financial punishment of up to five thousand ($5,000) dollars, or incarceration for up to one (1) year. This is the penalty if the charge is brought against you as a misdemeanor.
If you were charged with felony fraudulent gaming, the penalty could rise to ten thousand ($10,000) dollars and incarceration for a period ranging from sixteen (16) months to three (3) years, or a combination of both.
What Are the Legal Defenses My OCCA Attorney Can Raise if I Am Charged With Fraudulent Gaming?
As detailed above, the crime of fraudulent gaming is known as a “wobbler” in California. The prosecution gets to make the decision whether to charge you with a misdemeanor, or charge you with a felony. This decision will likely be based off the value of the property you obtained fraudulently. If you cheated at poker and won $10, the Prosecution will charge you with a misdemeanor, and petty larceny. If you cheated at poker and won somebodies BMW, the Prosecutor will likely charge you with a felony. If you are convicted, the conviction will appear on your criminal record. Employers will usually perform a background check on you if they are considering hiring you for a position. Many employers are not likely to hire someone with a criminal history, especially if it is a felony this is only made worse because this crime involves dishonesty, and employers are particularly interested in avoiding that. If you are convicted of fraudulent gaming, contact an attorney at Orange County Criminal Attorney. Our skilled counsel has extensive knowledge of the law, and the intricacies of the criminal process. Your OCCA attorney can raise the following defenses if you are charged with this crime:
- You never intended to defraud anybody when you engaged in the conduct.
- You did not obtain anything of value.
- Freedom of speech, as it relates to fortune tellers.