476a PC – Writing “Bad Checks” – California Law & Penalty

Penal Code 476a PC makes it a crime to write or pass a bad check (knowing that there are or will be insufficient funds in the account). The offense can be charged as a felony if the value of the bad checks is more than $950.00. Otherwise, the offense is only a misdemeanor.

Note that this code section is one of two California bad check laws. The other is Penal Code 476 PC, check fraud.

The language of the code section states that:

476a. (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.

Examples:

• writing a $200 check for groceries knowing that there is only $100 in the checking account.
• signing a check for clothes and the check is drawn on a bank account that the payor closed two months ago.
• delivering an order to a business for the payment of a debt knowing that there is not enough money for the order to clear.

Defenses

A defendant can fight a bad check charge with a legal defense. A few common defenses are that the defendant:

• did not intend to defraud,
• post-dated the check, and/or
• informed the payee about insufficient funds.

Penalties

A bad check violation is a misdemeanor if:

1. the bad check(s) total $950 or less, and
2. the defendant does not have certain prior convictions.

In all other cases, the crime is a wobbler offense. This means a prosecutor can charge it as either a misdemeanor or a felony. The maximum punishment is custody in county jail for three years.

Our California criminal defense attorneys will address the following in this article:

• 1. Is it a crime if you write a check and do not have enough money in your checking account to cover it?
  • 1.1. Willfully
  • 1.2. Use or attempt to use
  • 1.3. Intend to defraud
• 2. Are there legal defenses to Penal Code 476a PC?
  • 2.1. No intent to defraud
  • 2.2. Post-dated the check
  • 2.3. Informed payee about insufficient funds
• 3. What are the penalties?
• 4. Are there immigration consequences?
• 5. Can a person get a conviction expunged?
• 6. Does a conviction affect gun rights?
• 7. Are there related offenses?
  • 7.1. Check fraud – PC 476
  • 7.2. Forgery – PC 470
  • 7.3. Grand theft – PC 487

1. Is it a crime if you write a check and do not have enough money in your checking account to cover it?

Penal Code 476a PC is the California statute that makes it a crime for a person to write a “bad check.”¹ A prosecutor must prove the following to convict a person under this code section:

1. the defendant willfully used, made or drew, or attempted to use, make or draw, a check or order for the payment of money,
2. when the defendant used, made, or drew, or attempted to do so, there were insufficient funds to cover full payment of the check,
3. the defendant knew that there were insufficient funds available in that account, and
4. when the defendant acted, he intended to defraud.²

Note that a check or order is a written document directing a bank, firm, or person to pay the person named as payee on the check or order.³

A person makes or draws a check or order when he writes it and signs it to authorize payment.⁴

Questions often arise under this statute on the meaning of:

• willfully,
• use or attempt to use, and
• intent to defraud.

1.1. Willfully

For purposes of this law, someone commits an act willfully when he or she does it willingly or on purpose.⁵

Example: Stacey is not guilty of issuance of a bad check if someone forced her to do so. She is also not guilty if she signed a check not knowing that the object was in fact a check. In both situations, there is no purposeful act.

1.2. Use or attempt to use

A person “uses” or “attempts to use” a check when he represents that the check is genuine. This representation may be made by words or conduct and may be either direct or indirect.⁶

Use or attempt to use includes:

• handing a check to the payee, and
• writing a check in front of a payee.

1.3. Intend to defraud

A party must act with an intent to defraud to be guilty under this statute.⁷

Someone intends to defraud if he intends to deceive another person or trick him.⁸

Note that it is not necessary for a conviction that anyone actually be defrauded or suffer a loss because of the defendant’s acts. All that matters is the fraudulent intent.⁹

Also note that there is no intent to defraud if, at the time the defendant acted, he reasonably and actually believed that the check would be paid by the bank.¹⁰

2. Are there legal defenses to Penal Code 476a PC?

A defendant can raise a legal defense to challenge an accusation of writing a bad check.

Three common defenses are:

1. no intent to defraud,
2. post-dated the check, and/or
3. informed payee about insufficient funds.

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: Jerome is not guilty of writing a bad check if he believed he had enough money in his bank account to cover the amount of the check. Similarly, he is not guilty if he wrote the check by accident.

However, he could be charged if he wrote a bad check to specifically try and trick another person into believing that it was, in fact, legitimate.

2.2. Post-dated the check

An accused cannot be guilty under this law if he post-dated the check. This means that the defendant told the payee to wait until a later date before cashing the check (at a time when there would be sufficient funds in the bank account).

2.3. Informed payee about insufficient funds

This is a similar defense to post-dating a check. California courts have ruled that it is a defense to 476a PC is for a defendant to say that:

• at the time of writing or presenting the check,
• he told the payee that there were non-sufficient funds (nsf) in the account for the check to be paid.¹¹

3. What are the penalties?

A violation of Penal Code 476a is a misdemeanor if:

1. the bad check(s) total $950 or less, and
2. the defendant does not have certain prior convictions.¹²

In all other cases, the crime is a wobbler offense. This means a prosecutor can charge it as either a misdemeanor or a felony.

As a misdemeanor, the crime is punishable by:

• imprisonment in county jail for up to one year, and/or
• a maximum fine of $1,000.

As a felony, the offense is punishable by:

• custody in county jail for up to three years, and/or
• a maximum fine of $10,000.¹³

In addition to the above penalties, the payee can sue the defendant in civil court to recoup the full amount of the check. The payee can also ask for any additional damages in an amount of up to $1,500.

For bad check amounts up to $12,500, bad check victims can sue in small claims court. This typically requires first sending a demand letter by certified mail, return receipt requested. Attorney’s fees are not recoverable in small claims court.¹⁴

4. Are there immigration consequences?

A conviction of this law will have negative immigration consequences.

United States immigration law says that certain kinds of criminal convictions can lead to:

• a non-citizen being deported, and
• a non-citizen being marked “inadmissible.”

A category of “deportable” or “inadmissible” crimes includes “crimes of moral turpitude.”¹⁵

California law states that writing a bad check is, in fact, a crime of moral turpitude. Thus it may lead to deportation under federal law.¹⁶

5. Can a person get a conviction expunged?

A person convicted of this crime is entitled to an expungement provided that he:

1. successfully completes probation, or
2. 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.¹⁷

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 right to own and possess a gun.

7. Are there related offenses?

There are three crimes related to writing bad checks that a district attorney may bring charges for. These are:

1. check fraud – PC 476
2. forgery – PC 470, and
3. grand theft – PC 487.

Also see our article on credit card and debit card fraud.

7.1. Check Fraud – PC 476

Penal Code 476 PC, says that it is a crime if a person makes or uses a check and:

1. intends to defraud the payee, and
2. reveals that intent by representing the check to be genuine.

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.

Again, forgery does not have to be proven for the crime of writing a bad check. It does, though, for check fraud.

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 writing a bad check.

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. Disclaimer: Results cannot be guaranteed.

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 “Bad Checks in Colorado C.R.S. 18-5-512.”

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