Penal Code 476a (California's "bad checks" law) makes it a crime to
- write and/or pass a check,
- knowing that there are insufficient funds in the bank to cover the full amount of that check,
- intending to commit a fraud.
- While "checking out" at Target, Bill writes a check that is drawn on a bank account he closed two months ago in order to pay for his merchandise.
- Chris attempts to cash a check at the market on an account that he knows is overdrawn.
The first example is a clear violation of the section. The second is included to demonstrate that it is your intent that violates this law regardless of whether the "payee" actually suffers a loss or is defrauded. Simply intending to pass a bad check is sufficient to warrant a conviction.
Defenses to Penal Code 476a
There are a number of legal defenses that are available to contest the charges...essentially any defense that negates your criminal intent will prevail. Some of these include
- you post-dated the check,
- you told the payee that there were insufficient funds in the account,
- you honestly and in good faith believed you had (or would have) sufficient funds,
- the bank made an error that prevented the funds from being readily available.
If you pass bad checks totaling nine hundred fifty dollars ($950) or less, and you do not have certain prior convictions on your record, then you are guilty of a misdemeanor.
In all other cases, California's bad checks law is a wobbler which means that prosecutors may file it as either a misdemeanor or a felony, depending on
- the circumstances of the offense, and
- your criminal history.
A misdemeanor conviction subjects you to up to one year in a county jail and a maximum $1,000 fine. A felony conviction subjects you to up to three years in the California state prison and a maximum $10,000 fine.
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.
Below, our California criminal defense attorneys1 explain California's "bad checks" 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.
Simply put, passing a "bad check" becomes a California crime when you issue a check knowing that you do not have sufficient funds in your account to cover the amount. This crime is specifically prohibited under Penal Code 476a PC California's "bad checks" law.2
You violate Penal Code 476a PC when you
- willfully write, deliver, use or attempt to use a check,
- knowing that there are insufficient funds to cover the full payment of the check,
- intending to defraud the recipient or "payee."3
Let's take a closer look at some of these terms and phrases in order to gain a better understanding of their legal meanings.
You act willfully when you do something willingly or on purpose.4 This means that, for example, you are not being "forced" into writing or passing the bad check but rather are doing so of your own free will.
That said, you may nevertheless willfully write, pass, attempt to pass, etc. a bad check on behalf of someone else or in cahoots with another person/other people.5 Depending on the circumstances, doing so could subject you to charges for aiding and abetting in violation of California's aiding and abetting laws.
You "attempt" to use a check when you represent that the check is genuine. This representation may be made by words or conduct and may be direct or indirect.6 Handing the check to the payee would be an example. Writing the check in front of the payee would be another.
You "intend" to defraud when you intend to deceive another person out of money or other property.7
As Palm Springs criminal defense attorney Michael Scafiddi8 explains, "What's critical to understand is that you can commit this crime regardless of whether you actually defraud another person or cause that person/entity to suffer any type of financial or other loss...it's your intent that is controlling."9
This means that if, for example, you write a check for your groceries at the market...knowing that you do not have sufficient funds to cover the full amount...and for whatever reason the clerk doesn't accept the check, prosecutors could still convict you of this offense.
Penal Code 476a punishes your criminal intent...not the outcome of the act.
There are a variety of California legal defenses to passing a bad check that your California criminal defense lawyer could present on your behalf. Examples of the most common include (but are not limited to):
If you didn't willfully write, pass or attempt to use a bad check, you aren't guilty of violating Penal Code 476a PC. This law only applies to willful violations. This means that if you only wrote or passed the check because you were coerced into doing so by
- threats or violence...that is, the California legal defense of duress ...or
- by fraud,
then you haven't willfully violated California's bad checks law.
Again, Penal Code 476a PC only applies to intentional fraudulent acts. It therefore stands to reason that if, for example, you
- honestly believe you have enough funds to cover the check,10
- think you have some type of "overdraft" protection that will cover the deficiency,
- simply write the check assuming you have enough in the account but don't actually confirm your assumption, or
- would have sufficient funds to clear the check, but the bank made an error that caused the check to "bounce",
then you don't intend to defraud the payee.
This defense only applies to good-faith mistakes.11 If you have a history of passing bad checks, prior arrests for forgery or theft or any other relevant criminal history, you will have a difficult time securing an acquittal using this defense.
If, for example, you
- post-date a check, or
- tell the payee to hold off on cashing the check until a time when your account will contain sufficient funds to cover the amount of the check,12
you do not violate Penal Code 476a PC.13 And again, it's because this defense attacks the heart of the crime...if there is no fraudulent intent, there is no crime - period.
If...after passing the check...you instruct the bank to "stop payment", you may be absolved of any criminal wrongdoing. This would be the case if you instruct the bank to do so based on a good faith belief that the payee isn't entitled to the money.
In order to prevail on this defense, you would need to prove that there was some type of legitimate dispute about the subject of the payment.
If someone else signed their name to one of your checks...a check that didn't clear because of insufficient funds...you are not guilty of this offense.
As former police investigators and prosecutors, we know the most effective strategies for investigating cases to reveal the truth. If you are the victim of this type of California identity theft, we can help.
Violating California's bad checks law subjects an offender to criminal and civil penalties.
Most criminal violations of Penal Code 476a PC California's bad checks law are what we call "wobblers." A California wobbler is a charge that the prosecution may file as either a misdemeanor or a felony, depending on
- the facts of the case, and
- your criminal history.14
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.15 If you are convicted of the
California felony charge, you face 16 months or two or three years in the California state prison and a maximum $10,000 fine.16
However, under the 2014 voter initiative known as "Proposition 47," if the amount of the bad check(s) that you were convicted of writing, passing or attempting to use is/was $950 or less, the offense is a straight misdemeanor, punishable by the misdemeanor penalty noted above.
This is the case so long as
- you do not have three (3) or more prior convictions for violating
- California's bad checks law,
- Penal Code 470 PC California's forgery law,
- Penal Code 476 PC California's check fraud law, or
- another forgery / counterfeit related offense,
- you do not have three (3) or more prior California petty theft convictions where the offense was based on a violation of one of the laws just noted above,
- you do not have any prior convictions for a select list of serious violent felonies, including murder, rape, sex crimes against a child under the age of 14, and gross vehicular manslaughter while intoxicated,
- you do not have any prior convictions for a sex crime that requires you to register under California's sex offender registration law, and
- you do not have any out-of-state prior convictions for any offense that would constitute a violation of one of these offenses had the offense been committed in this state.17
The good news is that many local district attorneys' offices including
- the Los Angeles district attorney's office,
- the Contra Costa district attorney's office,
- the Yolo County district attorney's office,
- the Solano district attorney's office, and
- the Orange County district attorney's office,
offer an alternative sentencing option for violations of California's bad checks law. Known as "bad check diversion programs" or "bad check restitution programs," these programs provide an offender the opportunity to
- pay full restitution to the payee, and
- attend an intervention program at their own expense
in exchange for a dismissal of the criminal charges. If you do not fully reimburse the payee or successfully complete the intervention program, the prosecutor will likely reinstate the criminal proceedings.
In addition to the above penalties, you may be required to pay civil damages as well. However, before a payee may collect civil damages, he/she must first give you the opportunity to pay
- the full amount of the check, and
- a maximum $25 service charge for the first bad check or a maximum $35 for each and every subsequent bad check.
If you do not make these payments...and the payee makes a written demand for you to do so...your failure to comply could alternatively result in your being liable for the full amount of the check and damages for up to three times the amount of the check but not less than $100 or more than $1,500.18
There are several crimes that are closely related to Penal Code 476a PC California's bad checks law because prosecutors commonly charge them in connection with or in lieu of a PC 476a charge. The following are two of the most common.
Penal Code 476 PC California's check fraud law prohibits making, passing or attempting to make or pass a fake, altered or counterfeit check in an attempt to defraud a person/entity out of money or other property.19
Where PC 476a deals with real checks that are passed on insufficient funds, Penal Code 476 deals with "fake" checks that may or may not be linked to an actual bank account. So if, for example, you create a fake check that is linked to an account that has insufficient funds to clear the check, prosecutors could charge you with both offenses.
An offense under Penal Code 476 PC California's check fraud law is punishable under Penal Code 470 PC California's forgery law, discussed below. These offenses are punishable in the same manner at California's bad checks law (wobblers in most cases, but misdemeanors if the amount of the check(s) is $950 or less).20
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.21
So if, for example, you sign someone else's name to a check that you know will not clear because of on insufficient funds, prosecutors could charge you with forgery and California's bad checks law.
Forgery is a wobbler, subjecting you to the penalties noted above in Section 4.1.22
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.23
This means that if you pass a "bad check" for more than $950...and obtain money or goods with that check...prosecutors could charge you with grand theft and passing a bad check.
Penal Code 487 PC California's grand theft law is a wobbler, punishable in the same manner as noted above.24 But if the amount of the theft exceeds $65,000, the offense becomes an automatic felony punishable by an additional term in the
And if you attempt to obtain money or goods with the bad check...but are prevented from doing so... California's "attempted crimes" laws subject you to penalties that are half of what you would have faced if you had completed the crime.25
You violate California's petty theft law when you unlawfully take money or other property that is valued at or below $950.26 So if you obtain money or goods with a bad 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.27 And, again, if you pass a bad check...attempting to obtain money or goods worth $950 or less...California's attempt laws still subject you to up to three months in jail and a maximum $500 fine.28
Call us for help...
If you or loved one is charged with Penal Code 476a bad checks and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions about 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.29
¿Habla español? Visite nuestro sitio Web en español sobre el delito de cheques California sin fondos.
1 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.
2 Penal Code 476a PC California's bad checks law. ("(a) Any person who, for himself or herself, as the agent or representative of another, or as an officer of a corporation, willfully, with intent to defraud, makes or draws or utters or delivers a check, draft, or order upon a bank or depositary, a person, a firm, or a corporation, for the payment of money, knowing at the time of that making, drawing, uttering, or delivering that the maker or drawer or the corporation has not sufficient funds in, or credit with the bank or depositary, person, firm, or corporation, for the payment of that check, draft, or order and all other checks, drafts, or orders upon funds then outstanding, in full upon its presentation, although no express representation is made with reference thereto, is punishable by imprisonment in a county jail for not more than one year, or pursuant to subdivision (h) of Section 1170. (b) However, if the total amount of all checks, drafts, or orders that the defendant is charged with and convicted of making, drawing, or uttering does not exceed nine hundred fifty dollars ($950), the offense is punishable only by imprisonment in the county jail for not more than one year, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290. This subdivision shall not be applicable if the defendant has previously been convicted of three or more violations of Section 470, 475, or 476, or of this section [California's bad checks law], or of the crime of petty theft in a case in which defendant's offense was a violation also of Section 470, 475, or 476 or of this section or if the defendant has previously been convicted of any offense under the laws of any other state or of the United States which, if committed in this state, would have been punishable as a violation of Section 470, 475 or 476 or of this section or if he has been so convicted of the crime of petty theft in a case in which, if defendant's offense had been committed in this state, it would have been a violation also of Section 470, 475, or 476, or of this section [California's bad checks law]. (c) Where the check, draft, or order is protested, on the ground of insufficiency of funds or credit, the notice of protest shall be admissible as proof of presentation, nonpayment and protest and shall be presumptive evidence of knowledge of insufficiency of funds or credit with the bank or depositary, or person, or firm, or corporation. (d) In any prosecution under this section involving two or more checks, drafts, or orders, it shall constitute prima facie evidence of the identity of the drawer of a check, draft, or order if both of the following occur: (1) When the payee accepts the check, draft or order from the drawer, he or she obtains from the drawer the following information: name and residence of the drawer, business or mailing address, either a valid driver's license number or Department of Motor Vehicles identification card number, and the drawer's home or work phone number or place of employment. That information may be recorded on the check, draft, or order itself or may be retained on file by the payee and referred to on the check, draft, or order by identifying number or other similar means. (2) The person receiving the check, draft, or order witnesses the drawer's signature or endorsement, and, as evidence of that, initials the check, draft, or order at the time of receipt. (e) The word "credit" as used herein shall be construed to mean an arrangement or understanding with the bank or depositary or person or firm or corporation for the payment of such check, draft or order. (f) If any of the preceding paragraphs, or parts thereof, shall be found unconstitutional or invalid, the remainder of this section shall not thereby be invalidated, but shall remain in full force and effect. (g) A sheriff's department, police department, or other law enforcement agency may collect a fee from the defendant for investigation, collection, and processing of checks referred to their agency for investigation of alleged violations of this section or Section 476. The amount of the fee shall not exceed twenty-five dollars ($25) for each bad check in addition to the amount of any bank charges incurred by the victim as a result of the alleged offense. If the sheriff's department, police department, or other law enforcement agency collects any fee for bank charges incurred by the victim pursuant to this section, that fee shall be paid to the victim for any bank fees the victim may have been assessed. In no event shall reimbursement of the bank charge to the victim pursuant to this section exceed ten dollars ($10) per check.")
3 California Jury Instructions, Criminal "CALJIC 15.20"
4 See CALCRIM 1970 California's bad check law, endnote 3, above. ("Someone commits an act willfully when he or she does it willingly or on purpose.")
5 CALJIC 15.20 California's bad checks law, endnote 3, above. ("Every person who [for [himself] [herself]] [as the agent or representative of another person] [as an officer of a corporation], with the specific intent to defraud, willfully makes, draws, utters, or delivers any [check[s]] [draft[s]] [order[s]] upon any [bank] [depository] [person] [firm] [corporation] for the payment of money, knowing that at the time of the [making] [drawing] [uttering] [delivering] that the [maker] [drawer] [corporation] has not [sufficient funds in] [credit with] said [[bank] [depository] [person] [firm] [corporation]], for the payment in full upon its presentation of the __________ and all other [checks] [drafts] [orders] then outstanding upon those funds, is guilty of a violation of Penal Code section 476a, [California's bad checks law] a crime.")
6 See note 4.
7 See same. ("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.")
8 Palm Springs criminal defense attorney Michael Scafiddi uses his former experience as an Ontario Police Officer to represent clients throughout the Inland Empire including San Bernardino, Riverside, Rancho Cucamonga, Hemet, Banning, Fontana, Joshua Tree, Barstow, Palm Springs and Victorville.
9 See CALCRIM 1970 California's bad check law, endnote 3, above. ("[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.]")
10 People v. Pugh (2002) 104 Cal.App.4th 66, 73. ("Conviction for a violation of Penal Code section 476a, subdivision (a) [California's bad checks law], requires a person with the intent to defraud make, draw, utter or deliver, in this case, a check, knowing at that time there are insufficient funds for its payment. There is, however, no fraudulent intent if the maker informs the payee at the time the check is uttered that there are insufficient funds to pay the check. ( People v. Poyet (1972) 6 Cal.3d 530, 536, 99 Cal.Rptr. 758, 492 P.2d 1150.) Neither is there fraudulent intent if the person uttering the check, while aware there are insufficient funds to cover it, believes sufficient funds will be in the account when the check is presented for payment. ( People v. Griffith (1953) 120 Cal.App.2d 873, 880, 262 P.2d 355.)")
11 See CALCRIM 1970 California's bad check law, endnote 3, above. ("<Defense: Reasonable Expectation of Payment> [Even if the defendant (made[,]/ [or] drew[,]/ [or] delivered[,]/ [or] used[,]/ [or] attempted to use) (a/an) (check[,]/ draft[,]/ [or] order) knowing that there were insufficient funds for payment of the (check[,]/ draft[,]/ [or] order), the defendant did not intend to defraud if, at the time (he/she) acted, (he/she) reasonably and actually believed that the (check[,]/ draft[,]/ [or] order) would be paid by the (bank or depositary[,]/ [or] person[,]/ [or] firm[,]/ [or] corporation) when presented for payment. The People have the burden of proving beyond a reasonable doubt that the defendant intended to defraud. If the People have not met this burden, you must find the defendant not guilty of this crime.]")
12 See People v. Pugh, endnote10, above.
13 See note 4.
14 See Penal Code 476a PC California's bad checks law, endnote 1, above.
15 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.")
16 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, endnote15, above.
17 See Penal Code 476a PC California's bad checks law, endnote 1, above.
18California 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...")
19 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.") As noted above in the example, this charge could easily be filed in connection with Penal Code 476a PC California's bad checks law.
20 California Penal Code 473 - Forgery; punishment.
See also Penal Code Sections 18 and 672, endnote 16, above.
21 Penal Code 470 PC California's forgery law.
22 See California Penal Code 473 - Forgery; punishment, endnote 20, above.
23 California Penal Code 487 - Grand theft defined.
24 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.")
25 15 Penal Code 664 PC California's attempt law.
26 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 476a PC California's bad checks law.
27 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.")
28 See Penal Code 664, California's attempt law, endnote 25, above.
29 Please feel free to contact our Las Vegas Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada's "bad checks" laws, Nevada's forgery laws or any of Nevada's other criminal laws. Our Nevada law offices are located in Reno and Las Vegas.