Penal Code 476 PC is California's check fraud law. You commit check fraud when you make, use or possess...or attempt to make or use...a check when you
- intend to defraud the payee, and
- reveal that intent by representing the check to be genuine.1
Examples of check fraud include (but are not limited to):
- forging the name of the payor,
- changing the dollar amount on the check, or
- generating a fake check.
Some of the most common legal defenses that apply to a PC 476 charge include
- you didn't intend to commit a fraud,
- you aren't the person who actually committed the fraud, and
- you had consent to make alterations to the check.
Penal Code 476 PC California's check fraud law is a wobbler which means that prosecutors could file the charge as either a misdemeanor or a felony. If you are convicted of the misdemeanor4, you face up to one year in a county jail and a maximum $1,000 fine. If you are convicted of the felony, you face up to three years in the state prison and a maximum $10,000 fine.2
Below, our California criminal defense attorneys3 explain California's check fraud law...and the applicable defenses to this law...by addressing the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on Penal Code 476a PC California's Bad Checks Law; California Fraud Offenses; Penal Code 470 PC California's Forgery Law; California's Theft Offenses; Penal Code 487 PC California's Grand Theft Law; California's Petty Theft Law; California Wobblers; California Misdemeanor Charges; California Felony Charges; and California Legal Defenses.
Penal Code 476 PC prohibits check fraud. Simply put, you commit check fraud when you make, write, pass or possess...or attempt to make, write or pass...a fake, altered, or forged check in order to obtain cash, property or services with fraudulent intent.4
Check fraud is a violation of the broader category of California's fraud offenses and is punished as a crime of forgery.
In order to convict you of this offense, the prosecutor must first prove each of the following facts (otherwise known as "elements" of the crime):
- you made, passed or possessed...or attempted to make or pass...
- a fictitious (that is, "fake") or altered check,
- knowing that it was fictitious or altered, and
- intended to defraud a person/entity by
- representing that the check was genuine.5
Let's take a closer look at some of these terms and phrases to gain a better understanding of their legal definitions.
A fictitious check is one that is fake...plain and simple. This would include, for example, a check drawn from a non-existent bank or one endorsed by a person who doesn't exist.
Example: Robert creates computer generated checks then attempts to cash one at the grocery store. The manager runs the check through the computer, and the account comes up "closed". He tells Robert that they cannot cash the check. The police arrest Robert, and the prosecutor charges him with California Penal Code 476 check fraud.
As the court explains, "The checks were drawn on a bank in existence...they were signed by an existing person...and the defendant had an account at the bank, albeit the account was closed. Had defendant's account not been closed and had the account contained sufficient funds...[the checks would have been] legally negotiable. The closing of the defendant's account did not change the character of these checks, rather it simply rendered them uncollectible...In sum, because the checks were genuine rather than fictitious, their utterance or possession, although prohibited by other statutes, was not prohibited by [California Penal Code] section 476."6
You "alter" a check when you add to, erase or change part of the check that
- causes it to appear different from its original form, and
- changes its apparent legal effect.7
Examples of altered checks include (but are not limited to):
- changing the dollar amount (for example, taking a check that is made out for $100 and altering it to read $1000)
- changing the date on a check (for example, "bumping" up the date on a post-dated check)
- changing the routing number or check number
You intend to defraud if you intend to deceive another person out of money or other property.8
What's important to understand here is that it doesn't matter whether anyone actually suffered a loss or was defrauded. The only issue with respect to check fraud is your intent. As long as you intended to secure an unlawful or unfair gain the result is irrelevant.9
This issue...representing the check as genuine...is at the heart of an intent to defraud. If you make or use...or attempt to make or use...a fictitious or altered check by presenting it as if it is a real, genuine check, you may be convicted of this offense.
And as Ventura criminal defense attorney Darrell York10 explains, "Your representation that a check is genuine may be made by words or conduct and may be direct or indirect.11 You basically make this representation any time you attempt to use a fake or altered check. As a result, this is the easiest element for the prosecution to prove."
There are a number of California legal defenses that apply to Penal Code 476 PC check fraud. The following are examples of some of the most common that a skilled California criminal defense lawyer could present on your behalf:
As is the case with any California fraud offense, if you don't intent to commit a fraud, you aren't guilty of fraud - period. This means that if, for example, you make a fake check out to yourself for $1,000,000...but have no intention of trying to use or cash it...you are not guilty of this offense.
Or let's say that you did pass a fake or altered check but did not realize you were doing so. For example, someone owes you money and gives you a fake check to pay you. You then try to cash it and are arrested for attempting to pass a fake check. If you are not the one who made the check...and had no reason to believe that the check was not genuine...you are not guilty of this offense.
Let's say that you did, in fact, alter a check by either changing the name of the payee or the amount on the check or that you signed someone else's name on the check. If you had permission to make the alteration...or to sign the other person's name...by the person who had the authority to grant that permission, you haven't violated the law.
This defense plays into the example listed above in Section 2.1. If, for example, you attempted to pass a fake or altered check that someone else had made or altered...and you didn't realize that this was the case...you are not the party who should be penalized.
The person who made or altered the check is the true culprit, yet you are the one facing charges for the crime. The good news is that our firm's experience as former police investigators and prosecutors equips us with the skills and knowledge that are necessary to resolve these types of unfortunate incidents. If you are falsely accused and/or the victim of mistaken identity, a good California criminal defense lawyer will investigate and expose the injustice.
California check fraud is a specific type of forgery and is punished under California's forgery laws. Forgery...and therefore check fraud...is what's known as a California wobbler. A "wobbler" is a crime that prosecutors can file as either a misdemeanor or a felony depending on
- the facts of the case, and
- your criminal history.
If you are convicted of the California misdemeanor charge you face up to one year in a county jail and a maximum $1,000 fine. If you are convicted of the California felony charge, you face either (a) probation and up to one year in the county jail, or (b)16 months or two or three years in the California state prison and a maximum $10,000 fine. 12
There are a variety of other California crimes that are closely related to California's check fraud law either because they are filed in connection with or in lieu of Penal Code 476 PC. The following are the most common.
- writing and/or passing a check,
- knowing that there are insufficient funds in the bank to cover the full amount of that check,
- intending to commit a fraud.
Although California's bad checks law specifically deals with insufficient funds...and California's check fraud law deals with forgery...prosecutors can charge you with both offenses under certain situations.
Example: Charlie attempts to cash a check that he has created using a fictitious bank. Because the check is a fake, it clearly violates PC 476 California's check fraud law. And because there are obviously no funds to cover the amount of the check...since the bank doesn't exist...the act also violates PC 476a PC California's bad checks law.13
California's bad checks law is also a wobbler, subjecting you to the same penalties noted above. And in addition to these criminal penalties, the payee could sue you in civil court to recoup the full amount of the check as well as additional damages that could total up to $1,500.14
California's bad checks law is also a wobbler, subjecting you to the same penalties noted above. And in addition to these criminal penalties, the payee could sue you in civil court to recoup the full amount of the check as well as additional damages that could total up to $1,500.14
Penal Code 470 PC California's forgery law is quite broad. This law prohibits having the intent to defraud when you
- sign the name of another person without that person's consent (or signing the name of a fictitious person) on certain types of documents,
- counterfeit or forge the seal or handwriting of another person, or
- alter, corrupt or falsify a will, deed or court judgment.15
The primary distinction between forgery and check fraud is that forgery applies to a wide variety of documents, whereas check fraud only applies to checks, bills or notes. So if the forgery is not on a check, bill or note, the offense would be properly filed as forgery under PC 470.
However, if you forge someone else's name on a check, prosecutors could charge you under PC 470 or PC 476. And if they decided to charge you with both offenses, California law only allows you to be convicted and sentenced for one of these charges if they were both based on the same conduct.16
Forgery is also a wobbler, subjecting you to the same penalties noted above.17
California's theft laws prohibit taking money or other property from a person/entity without that person's/entity's consent. If the value of that money or property exceeds $950, the offense is classified as grand theft.18
This means that if you make or pass a fake or fraudulent check for more than $950...and obtain money or goods with that check...prosecutors could charge you with grand theft and check fraud.
Penal Code 487 PC California's grand theft law is a wobbler, punishable in the same manner as noted above.19 But if the amount of the theft exceeds $65,000, the offense becomes an automatic felony punishable by an additional term in the state prison.
You violate California's petty theft law when you unlawfully take money or other property that is valued at or below $950.20 So if you obtain money or goods with a fake or altered check, prosecutors could charge you with PC 476a and petty theft.
Petty theft is a misdemeanor, punishable by up to six months in jail and a maximum $1,000 fine.21
Call us for help...
For questions about Penal Code 476 California's check fraud law, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions about Nevada's forgery laws and/or Nevada's "bad checks" laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.22
1 Penal Code 476 PC California's check fraud law. ("Every person who makes, passes, utters, or publishes, with intent to defraud any other person, or who, with the like intent, attempts to pass, utter, or publish, or who has in his or her possession, with like intent to utter, pass, or publish, any fictitious or altered bill, note, or check, purporting to be the bill, note, or check, or other instrument in writing for the payment of money or property of any real or fictitious financial institution as defined in Section 186.9 is guilty of forgery.")
2 See same. See also California Penal Code 473 - Forgery; punishment. ("Forgery is punishable by imprisonment in the state prison, or by imprisonment in the county jail for not more than one year.")
See also Penal Code 18 - California felony charges. ("Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony, or to be punishable by imprisonment in a state prison, is punishable by imprisonment in any of the state prisons for 16 months, or two or three years; provided, however, every offense which is prescribed by any law of the state to be a felony punishable by imprisonment in any of the state prisons or by a fine, but without an alternate sentence to the county jail, may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both.")
See also Penal Code 672 - Fines where none prescribed. ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")
3 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
4 See Penal Code 476 PC California's check fraud law, endnote 1, above.
5 Judicial Council of California Criminal Jury Instructions "CALCRIM" 1935 - Making, Passing, etc., Fictitious Check or Bill (Pen. Code, § 476). ("The defendant is charged [in Count ] with (possessing[,]/ [or] making[,]/ [or] passing[,]/ [or] using[,]/ [or] attempting to pass or use) (a/an) (false/ [or] altered) (check[,]/ [or] bill[,]/ [or] note[,]/ [or other] legal writing for the payment of money or property) [in violation of Penal Code section 476]. To prove that the defendant is guilty of this crime, the People must prove that: 1 The defendant (possessed[,]/ [or] made[,]/ [or] passed[,]/ [or] used[,]/ [or] attempted to pass or use) (a/an) (false/ [or] altered) (check[,]/ [or] bill[,]/ [or] note[,]/ [or other] legal writing for the payment of money or property); 2 The defendant knew that the document was (false/ [or] altered); [AND] 3 When the defendant (possessed[,]/ [or] made[,]/ [or] passed[,]/ [or] used[,]/ [or] attempted to pass or use) the document, (he/she) intended to defraud(;/.)<Give element 4 only when possession charged. > [AND 4 When the defendant possessed the document, (he/she) intended to pass or use the document as genuine.] Someone intends to defraud if he or she intends to deceive another person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/ [or] something [else] of value), or to cause damage to, a legal, financial, or property right. [For the purpose of this instruction, a person includes (a governmental agency/a corporation/a business/an association/the body politic).] [It is not necessary that anyone actually be defrauded or actually suffer a financial, legal, or property loss as a result of the defendant's acts.] [A person alters a document if he or she adds to, erases, or changes a part of the document that affects a legal, financial, or property right.] A person (passes[,]/ [or] uses[,]/ [or] attempts to pass or use) a document if he or she represents to someone that the document is genuine. The representation may be made by words or conduct and may be either direct or indirect. [The People allege that the defendant (possessed[,]/ [or] made[,]/ [or] passed[,]/ [or] used[,]/ [or] attempted to pass or use) the following documents: <insert description of each document when multiple items alleged>. You may not find the defendant guilty unless you all agree that the People have proved that the defendant (possessed[,]/ [or] made[,]/ [or] passed[,]/ [or] used[,]/ [or] attempted to pass or use) at least one document that was (fictitious/ [or] altered) and you all agree on which document (he/she) (possessed[,]/ [or] made[,]/ [or] passed[,]/ [or] used[,]/ [or] attempted to pass or use).]")
6 People v. Mathers (2010) 183 Cal.App.4th 1464, 1468.
7 See CALCRIM 1935 California check fraud, endnote 5, above.
See also California Jury Instructions, Criminal "CALJIC" 15.04 - Forgery by Alteration-Defined. ("Forgery may be committed by altering a valid and genuine instrument, paper or document with the specific intent to defraud, and by either adding, erasing, or changing a material part thereof, and thus causing it to appear different from what it originally was intended to be and changing its apparent legal effect.")
8 See CALCRIM 1935 California check fraud, endnote 5, above.
9 See same.
10 Ventura criminal defense lawyer Darrell York uses his former experience as a Glendale Police Officer to represents clients at the Ventura Hall of Justice, the Van Nuys courthouse, the Pasadena courthouse, the Burbank courthouse, the Glendale courthouse, the Lancaster courthouse, the San Fernando courthouse, and the Criminal Courts Building.
11 See CALCRIM 1935 California check fraud, endnote 5, above.
12 Penal Code 476 PC California's check fraud law, endnote 1, above.
See also Penal Code sections 473, 18 and 672, endnote 2, above.
13 People v. Mathers (2010) 183 Cal.App.4th 1464, 1467-1468. ("Issuing a check to defraud (P.C. 476a) is usually distinguishable from making or passing a fictitious or altered check (P.C. 476 [California's check fraud law]) in that the 'bad' check is a genuine instrument with the genuine signature of the drawer; it is merely uncollectible because of insufficient funds. [ ] However, if the defendant seeks to obtain funds by a check with a forged or fictitious drawer, both statutes are violated: The instrument is knowingly fictitious (P.C. 476) and the defendant obviously knows that he or she has no funds for its payment (P.C. 476a)."")
14California Civil Code 1719 - California's bad checks law. ("(a)(1) Notwithstanding any penal sanctions that may apply, any person who passes a check on insufficient funds shall be liable to the payee for the amount of the check and a service charge payable to the payee for an amount not to exceed twenty-five dollars ($25) for the first check passed on insufficient funds and an amount not to exceed thirty-five dollars ($35) for each subsequent check to that payee passed on insufficient funds. (2) Notwithstanding any penal sanctions that may apply, any person who passes a check on insufficient funds shall be liable to the payee for damages equal to treble the amount of the check if a written demand for payment is mailed by certified mail to the person who had passed a check on insufficient funds and the written demand informs this person of (A) the provisions of this section, (B) the amount of the check, and (C) the amount of the service charge payable to the payee. The person who had passed a check on insufficient funds shall have 30 days from the date the written demand was mailed to pay the amount of the check, the amount of the service charge payable to the payee, and the costs to mail the written demand for payment. If this person fails to pay in full the amount of the check, the service charge payable to the payee, and the costs to mail the written demand within this period, this person shall then be liable instead for the amount of the check, minus any partial payments made toward the amount of the check or the service charge within 30 days of the written demand, and damages equal to treble that amount, which shall not be less than one hundred dollars ($100) nor more than one thousand five hundred dollars ($1,500). When a person becomes liable for treble damages for a check that is the subject of a written demand, that person shall no longer be liable for any service charge for that check and any costs to mail the written demand...")
15 Penal Code 470 PC California's forgery law. ("(a) Every person who, with the intent to defraud, knowing that he or she has no authority to do so, signs the name of another person or of a fictitious person to any of the items listed in subdivision (d) is guilty of forgery. (b) Every person who, with the intent to defraud, counterfeits or forges the seal or handwriting of another is guilty of forgery. (c) Every person who, with the intent to defraud, alters, corrupts, or falsifies any record of any will, codicil, conveyance, or other instrument, the record of which is by law evidence, or any record of any judgment of a court or the return of any officer to any process of any court, is guilty of forgery. (d) Every person who, with the intent to defraud, falsely makes, alters, forges, or counterfeits, utters, publishes, passes or attempts or offers to pass, as true and genuine, any of the following items, knowing the same to be false, altered, forged, or counterfeited, is guilty of forgery: any check, bond, bank bill, or note, cashier's check, traveler's check, money order, post note, draft, any controller's warrant for the payment of money at the treasury, county order or warrant, or request for the payment of money, receipt for money or goods, bill of exchange, promissory note, order, or any assignment of any bond, writing obligatory, or other contract for money or other property, contract, due bill for payment of money or property, receipt for money or property, passage ticket, lottery ticket or share purporting to be issued under the California State Lottery Act of 1984, trading stamp, power of attorney, certificate of ownership or other document evidencing ownership of a vehicle or undocumented vessel, or any certificate of any share, right, or interest in the stock of any corporation or association, or the delivery of goods or chattels of any kind, or for the delivery of any instrument of writing, or acquittance, release or discharge of any debt, account, suit, action, demand, or any other thing, real or personal, or any transfer or assurance of money, certificate of shares of stock, goods, chattels, or other property whatever, or any letter of attorney, or other power to receive money, or to receive or transfer certificates of shares of stock or annuities, or to let, lease, dispose of, alien, or convey any goods, chattels, lands, or tenements, or other estate, real or personal, or falsifies the acknowledgment of any notary public, or any notary public who issues an acknowledgment knowing it to be false; or any matter described in subdivision (b). (e) Upon a trial for forging any bill or note purporting to be the bill or note of an incorporated company or bank, or for passing, or attempting to pass, or having in possession with intent to pass, any forged bill or note, it is not necessary to prove the incorporation of the bank or company by the charter or act of incorporation, but it may be proved by general reputation; and persons of skill are competent witnesses to prove that the bill or note is forged or counterfeited.") This, too, could easily be charged in connection with Penal Code 476a PC California's bad checks law.
16 2 Witkin, Cal. Crim. Law 3d (2000) Crimes--Property, § 150, p. 181-182. ("Fictitious Check or Forgery. The principal distinction between the two crimes is in the subjects covered: A wide variety of writings may be the subject of forgery (see infra, §156), but P.C. 476 [California's check fraud law] deals only with a bill, note, check or other similar instrument. Hence, if the fictitious instrument is not within this narrow class, the defendant may be prosecuted under that part of P.C. 470 covering signing the name of "a fictitious person." (See People v. Chretien (1902) 137 C. 450, 70 P. 305 [deed]; 49 A.L.R.2d 852 [use of fictitious or assumed name].) On the other hand, if the instrument is a bill, note, or check, P.C. 470 and 476 are both in terms applicable, and a conviction can be sustained under either statute. (People v. Pearson (1957) 151 C.A.2d 583, 586, 311 P.2d 927; People v. Hawkins (1961) 196 C.A.2d 832, 838, 17 C.R. 66.) However, the double punishment statute (P.C. 654) precludes conviction under both. (People v. Hawkins, supra; see 3 Cal. Crim. Law (3d), Punishment, §168.)")
17 See California Penal Code 473 - Forgery; punishment, endnote 2, above.
18 California Penal Code 487 - Grand theft defined. ("Grand theft is theft committed in any of the following cases: (a) When the money, labor, or real or personal property taken is of a value exceeding nine hundred fifty dollars ($950), except as provided in subdivision (b). (b) Notwithstanding subdivision (a), grand theft is committed in any of the following cases: (1)(A) When domestic fowls, avocados, olives, citrus or deciduous fruits, other fruits, vegetables, nuts, artichokes, or other farm crops are taken of a value exceeding two hundred fifty dollars ($250). (B) For the purposes of establishing that the value of domestic fowls, avocados, olives, citrus or deciduous fruits, other fruits, vegetables, nuts, artichokes, or other farm crops under this paragraph exceeds two hundred fifty dollars ($250), that value may be shown by the presentation of credible evidence which establishes that on the day of the theft domestic fowls, avocados, olives, citrus or deciduous fruits, other fruits, vegetables, nuts, artichokes, or other farm crops of the same variety and weight exceeded two hundred fifty dollars ($250) in wholesale value. (2) When fish, shellfish, mollusks, crustaceans, kelp, algae, or other aquacultural products are taken from a commercial or research operation which is producing that product, of a value exceeding two hundred fifty dollars ($250). (3) Where the money, labor, or real or personal property is taken by a servant, agent, or employee from his or her principal or employer and aggregates nine hundred fifty dollars ($950) or more in any 12 consecutive month period. (c) When the property is taken from the person of another. (d) When the property taken is any of the following: (1) An automobile, horse, mare, gelding, any bovine animal, any caprine animal, mule, jack, jenny, sheep, lamb, hog, sow, boar, gilt, barrow, or pig. (2) A firearm.") If the amount of the check is for more than $950, this charge could easily be filed in connection with Penal Code 476 PC California's check fraud law.
19 California Penal Code 489 PC - Grand theft; punishment. ("Grand theft is punishable as follows: (a) When the grand theft involves the theft of a firearm, by imprisonment in the state prison for 16 months, 2, or 3 years. (b) In all other cases, by imprisonment in a county jail not exceeding one year or in the state prison.")
20 California Penal Code 488 - Petty theft defined. ("Theft in other cases is petty theft.") If the amount of the check is $950 or less, this charge could easily be filed in connection with Penal Code 476 PC California's check fraud law.
21 California Penal Code 490 PC - Petty theft; punishment. ("Petty theft is punishable by fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or both.")
22 Please feel free to contact our Las Vegas Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's forgery laws and/or Nevada's "bad checks" laws. Our Nevada law offices are located in Reno and Las Vegas.