- Card games or tricks such as “three card monte”;
- Betting or gambling; or
- Pretensions to fortune-telling.1
Note that California's gambling fraud law does not prohibit either gambling or bookmaking per se. (Those activities are, however, addressed by PC 330 California's gaming law and PC 337a California's bookmaking law.) Instead, it prohibits using card tricks, stacked decks, schemes designed to trick people into betting on a “sure thing,” and similar activities.
The legal definition of gaming fraud / gambling fraud in California
Penal Code 332 PC sets forth the following definition of gaming or gambling fraud:
- You fraudulently obtain another person's money or property; and
- You do so through the game of “three card monte” or any other game, device, sleight of hand or trick, or through pretensions to fortune telling, or by betting on sides or hands of any play or game.3
Example: Tom and Charles conduct a game of “three card monte” on a long-distance bus.
The way the game works is this: Tom presents 3 playing cards (2 black and 1 red) to fellow passengers. He asks them to put up money and guess which one is the red card after he shuffles them. If they guess wrong, they lose money. If they guess correctly, they win money. Tom uses sleight of hand in such a way that the passengers think they have a good chance of guessing correctly—though actually they don't.
Charles acts as the “shill” in the game. He pretends to play and win the game to entice others to play. He also helps distract the other passengers from the sleight of hand Tom uses to ensure that the players won't win.
Both Tom and Charles are guilty of violating Penal Code 332 for their participation in this card-game fraud.4
“Fraudulently” means that you act with bad faith, dishonesty, a lack of integrity, or moral turpitude.5 Acting fraudulently includes cheating and otherwise failing to play by the rules of the game.6
If you merely play card games with other people and win money from them—without cheating or tricks—you are not guilty of this crime.
Another key element of the legal definition of gambling/gaming fraud is that you need to win money or property from someone else. “Property” includes poker chips or tokens that have a monetary value assigned to them.7
Example: Kirsten and her friend Marissa conduct a poker game scam in a city park. Kirsten organizes the games and the betting.
Marissa pretends not to know Kirsten and joins in the game. Kirsten gives Marissa the deck to shuffle, and Marissa “stacks” the deck in a way that ensures that Kirsten or Marissa will win.
The poker games are played with chips that are worth $5 apiece. Players have to pay for chips they have lost at the end of the game.
An undercover police officer joins in the game and then breaks it up before any cash is exchanged for the poker chips. But Kirsten and Marissa may still be guilty of fraud through gambling because the chips their victims have lost are considered to be “property.”
Fraudulent fortune-telling and free speech
In addition to card games and other common forms of gambling, California's gaming fraud law also prohibits fraudulent fortune-telling.8 This is one of the trickier parts of this law because the constitutional right to free speech protects fortune-telling in certain circumstances.9
According to Los Angeles criminal defense attorney Neil Shouse10:
“Whether fortune telling for money is a crime under Penal Code 332 depends on the circumstances. If a fortune teller or astrologer adheres to a religion that believes in certain methods of foretelling the future, he or she probably is not guilty of gambling fraud for accepting money to read fortunes. Or if a fortune teller posts a sign telling customers that his or her work is ‘for entertainment purposes only,' he or she also may not be guilty.”
However, let's say there is evidence that a fortune teller or astrologer does not believe in his/her own predictions and is specifically looking to defraud naïve customers. In that case, s/he may be successfully prosecuted under California's law against obtaining money or property through gaming fraud.
As is the case with California theft, the penalties for gaming/gambling fraud depend on the monetary value of the property that the defendant obtains from his/her “victim.”11
If you defraud someone of property worth more than nine hundred fifty dollars ($950), gaming fraud is treated as a “wobbler” in California law. A wobbler is a crime that may be charged as either a misdemeanor or a felony, depending on the preferences of the prosecutor.12
If the money or property stolen in a gambling fraud scheme is nine hundred fifty dollars ($950) or less, then PC 332 can only be charged as a California misdemeanor.13
The potential penalties for obtaining money or property through gambling fraud as a felony are:
- Felony (formal) probation;
- Sixteen (16) months, two (2) years or three (3) years served in county jail under California's realignment program; and/or
- A fine of up to five thousand dollars ($5,000) for a first offense, or up to ten thousand dollars ($10,000) for a second or subsequent offense.14
The potential penalties for obtaining money or property through gaming fraud as a misdemeanor are:
- Misdemeanor (summary) probation;
- Up to six (6) months in county jail if the stolen property was worth $950 or less, or up to one (1) year in county jail if it was worth more than $950; and/or
- A fine of up to one thousand dollars ($1,000).15
Gaming fraud penalties are pretty steep for an offense that, to many defendants, feels like nothing more serious than “cheating at cards.” If you are charged with this crime, you will want to consult an experienced criminal defense attorney about possible defense strategies.
One of the common legal defenses is that you lacked fraudulent intent. Like all fraud crimes, depriving someone of money or property through gambling fraud requires the prosecutor to prove that you specifically intended to defraud.17
Or, if you are charged with gaming/gambling fraud in connection with fortune-telling or similar activities, you can argue that your behavior falls under the protection of the First Amendment to the U.S. Constitution—in other words, that you were exercising your right to free speech.
Call us for help…
For questions about the crime of Penal Code 332 PC gaming or gambling fraud, 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.
1 Penal Code 332 PC – Three card monte and other games or bets; fraudulently obtaining money or property from another person; punishment. (“(a) Every person who by the game of “three card monte,” so-called, or any other game, device, sleight of hand, pretensions to fortune telling, trick, or other means whatever, by use of cards or other implements or instruments, or while betting on sides or hands of any play or game, fraudulently obtains from another person money or property of any description, shall be punished as in the case of larceny of property of like value for the first offense, except that the fine may not exceed more than five thousand dollars ($5,000).A second offense of this section is punishable, as in the case of larceny, except that the fine shall not exceed ten thousand dollars ($10,000), or both imprisonment and fine. (b) For the purposes of this section, “fraudulently obtains” includes, but is not limited to, cheating, including, for example, gaining an unfair advantage for any player in any game through a technique or device not sanctioned by the rules of the game. (c) For the purposes of establishing the value of property under this section, poker chips, tokens, or markers have the monetary value assigned to them by the players in any game.”)
4 Based on the facts of People v. Mayers (1980) 110 Cal.App.3d 809.
5 Black's Law Dictionary (10th ed. 2014), fraudulent act [such as gaming or gambling fraud]. (“1. Conduct involving bad faith, dishonesty, a lack of integrity, or moral turpitude. 2. Conduct satisfying the elements of a claim for actual or constructive fraud.”)
6 Penal Code 332 PC – Three card monte and other games or bets; fraudulently obtaining money or property from another person; punishment, endnote 1 above.
9 See Spiritual Psychic Science Church v. Azusa (1985) 39 Cal.3d 501.
10 Our Los Angeles criminal defense attorneys have conducted dozens of jury trials and juvenile adjudication hearings, defending everything from drug misdemeanors to fraud crimes like gaming fraud.
11 Penal Code 332 PC – Three card monte and other games or bets; fraudulently obtaining money or property from another person; punishment, endnote 1 above.
12 California Penal Code 487 PC – “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).”)
13 Penal Code 488 PC – Petty theft defined [applies to money or property taken through gaming fraud]. (“Theft in other cases is petty theft.”)
14 Penal Code 489 PC – Grand theft; punishment [applies to money or property taken through gambling fraud]. (“Grand theft is punishable as follows: . . . (c) In all other cases, by imprisonment in a county jail not exceeding one year or pursuant to subdivision (h) of Section 1170.”)
See also Penal Code 332 PC – Three card monte and other games or bets; fraudulently obtaining money or property from another person; punishment, endnote 1 above.
See also 490 – 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.”)
16 Penal Code 332 PC – Three card monte and other games or bets; fraudulently obtaining money or property from another person; punishment, endnote 1 above.