Note that Penal Code 476 is one of two California “bad check/check fraud” laws. The other is Penal Code 476a PC, writing a bad check.
The language of the code section state that:
476. 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.
- forging the name of the payor listed on the check.
- changing the dollar amount on a check.
- generating a fake check.
A defendant can use a legal defense to fight a check fraud charge. A few common defenses are that the defendant:
- did not intend to defraud,
- had consent to make changes to a check, and/or
- had no knowledge that a check was bad.
If charged as a misdemeanor, the crime is punishable by up to one year in county jail.
If charged as a felony, check fraud is punishable by up to three years in county jail.
Our California criminal defense attorneys will highlight the following in this article:
- 1. How does California law define check fraud?
- 2. Are there defenses to Penal Code 476 PC?
- 3. What are the penalties?
- 4. Are there immigration consequences?
- 5. Can a check fraud conviction be expunged?
- 6. Does a conviction affect gun rights?
- 7. Are there related offenses?
1. How does California law define check fraud?
Penal Code 476 PC is the California statute that makes it an offense for a person to commit check fraud.1
A prosecutor must prove the following to convict a person under this code section:
- the defendant possessed or made, passed, or used, or attempted to pass or use, a fictitious, false or altered check or bill for the payment of money or property,
- the defendant knew that the document was false or altered, and
- when the defendant performed his act(s), he intended to defraud.2
If a defendant is being charged with possession of a false check, then the prosecutor must also prove that:
- when the defendant possessed the document,
- he intended to pass or use the document as genuine.3
A “fictitious or fake” check is one that is not real or legal.4 A check of this type includes:
- a check drawn from a non-existent bank, and
- a check endorsed by a person who doesn’t exist.
Questions often arise under this statute on the meaning of:
- intent to defraud, and
- pass, use, and alter.
1.1. Intent to defraud
A party must act with an intent to defraud to be guilty under this statute.5
Someone intends to defraud if he intends to deceive another person or trick him.6
Note that it is not necessary for a conviction that anyone actually is defrauded or suffer a loss because of the defendant’s acts. All that matters is the fraudulent intent.7
1.2. Pass, use, or alter
Under this code section, a person passes, uses, or attempts to pass or use a document if he represents to someone that the document is genuine or real. The representation may be made by words or conduct and may be either
- direct or
A person alters a document if he does any of the following:
- adds to it,
- erases something on it, or
- changes a part of the document.9
2. Are there defenses to Penal Code 476 PC?
An accused can use a legal defense to try and beat a check fraud charge.
Three common defenses are:
- no intent to defraud,
- consent to make changes to a check, and/or
- no knowledge that a check was bad.
2.1. No intent to defraud
A person is only guilty under this code section if he acted with the intent to defraud. This means it is a legal defense for the accused to show that he did not have this requisite intent.
Example: Jill is not guilty of check fraud if she wrote a fake check as part of a prank. Similarly, she is not guilty if he she altered a check on accident.
However, she could be charged if she passed a fake check to specifically try and trick another person into believing that it was, in fact, legitimate.
2.2 Consent to make changes to a check
While it is a crime under PC 476 for a person to alter a check, the defendant is not guilty if he:
- acted with permission, and
- received this permission from the party responsible for the check or bill.
Consent, then, is always a valid defense.
2.3. No knowledge that a check was bad
Recall that a defendant is only guilty under this statute if he knew that a check was false or altered. This means an accused is innocent if he did not have this knowledge. Perhaps, for example, he became the owner of a bad check by accident.
3. What are the penalties?
A person who violates this statute is guilty of forgery.
The violation is a wobbler offense under California law. This means a prosecutor can charge it as either a misdemeanor or a felony based upon the:
- facts of the case, and
- the criminal history of the defendant.
If charged as a misdemeanor, the crime is punishable by:
- up to one year in county jail, and/or
- a maximum fine of $1,000.
If charged as a felony, the offense is punishable by:
- up to three years in county jail, and/or
- a maximum fine of $10,000.
4. Are there immigration consequences?
A conviction of this law may have negative immigration consequences.
United States immigration law says that certain kinds of criminal convictions can lead to:
There has been at least one California case where the court ruled that a forgery offense was grounds for deportation.10
Therefore, depending on the facts of a case, a check fraud conviction could lead to detrimental immigration results.
5. Can a check fraud conviction be expunged?
A person convicted of this crime is entitled to an expungement provided that he:
- successfully completes probation, or
- completes a jail term (whichever is relevant).
If a party violates a probation term, he could still possibly get the offense expunged. This, though, would be in the judge’s discretion.
Under Penal Code 1203.4, an expungement releases an individual from virtually “all penalties and disabilities” arising out of the conviction.11
6. Does a conviction affect gun rights?
A conviction under this statute may have a negative effect on the convicted party’s gun rights.
According to California law, convicted felons are prohibited from acquiring or possessing a gun in California.
This means that:
- if a prosecutor decides to charge this law as a felony, and
- the accused is convicted of the same,
the defendant will lose his rights to own and possess a gun.
7. Are there related offenses?
There are three crimes related to check fraud. These are:
- writing bad checks – PC 476a,
- forgery – PC 470, and
- grand theft – PC 487.
7.1. Writing bad checks – PC 476a
Penal Code 476a PC is the California statute that makes it a crime for a person to:
- write or pass a check, and
- do so while knowing that there are insufficient funds to cover payment of the check.
Note that while PC 476a pertains to checks and insufficient funds, PC 476 involves forging checks.
7.2. Forgery – PC 470
Penal Code 470 PC is the California statute that makes forgery a crime.
Forgery takes place when a person does any one of the following:
- signs someone else’s name,
- fakes a seal or someone else’s handwriting,
- changes or falsifies any legal document, or
- fakes, alters, or presents as genuine a false document pertaining to money, finances, or property.
Note that forgery typically becomes an essential part of a check fraud case if the accused altered or changed a check.
7.3. Grand theft – PC 487
Per Penal Code 487 PC, grand theft is the:
- unlawful taking of someone else’s property,
- when that property is valued at $950 or more.
Note that a person may commit grand theft by committing check fraud.
For additional help…
For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.
For similar accusations in Nevada, please see our article on “Nevada ‘Bad Checks’ Laws (NRS 205.130).”
For similar accusations in Colorado, please see our article on “Check Fraud Laws in Colorado – CRS 18-5-205.”
- California Penal Code 476 PC.
- CALCRIM No. 1935 – Making, Passing, etc., Fictitious Check or Bill. Judicial Council of California Criminal Jury Instructions (2017 edition).
- See same.
- People v. Mathers (2010) 183 Cal.App.4th 1464.
- People v. Pugh (2002) 104 Cal.App.4th 66. See also People v. Gaul-Alexander (1995) 32 Cal.App.4th 735.
- CALCRIM No. 1935 – Making, Passing, etc., Fictitious Check or Bill.
- See same. See also People v. Morgan (1956) 140 Cal.App.2d 796.
- CALCRIM No. 1935. See also People v. Tomlinson (1868) 35 Cal. 503; and, People v. Anderson (1987) 43 Cal.3d 1104.
- CALCRIM No. 1935. See also People v. Nesseth (1954) 127 Cal.App.2d 712; and, People v. Hall (1942) 55 Cal.App.2d 343.
- Morales-Alegria v. Gonzales (9th Cir. 2006), 449 F.3d 1051.
- California Penal Code 1203.4 PC.