Penal Code § 476 PC – California “Check Fraud” Laws

• a misdemeanor or
• a felony and
• carries a maximum sentence of up to 3 years in jail.

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 states 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.

Examples of Check Fraud

• forging the name of the payor listed on the check without their authorization
• changing the dollar amount or payee on a check
• generating a fake check (counterfeit checks)
• using a stolen check
• check kiting, which is depositing checks with the knowledge there are insufficient funds or that the bank account is nonexistent

Below, our California criminal defense attorneys will address the following topics:

• 1. Definition of Check Fraud
• 2. Best Defenses
• 3. Penalties
• 4. Immigration Consequences
• 5. Expungements
• 6. Gun Rights
• 7. Related Offenses
• Additional Reading

1. Definition of Check Fraud

Penal Code 476 PC is the California statute that makes it an offense to commit check fraud.¹

A prosecutor must prove the following to convict you under this code section:

1. you 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,
2. you knew that the document was false or altered, and
3. when you performed this act(s), you intended to defraud.²

If you are being charged with possession of a false check, then the prosecutor must also prove that:

• when you possessed the document,
• you 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 does not exist.

Questions often arise under this statute on the meaning of:

• intent to defraud, and
• pass, use, and alter.

Intent to defraud

You must act with an intent to defraud to be guilty under this statute.⁵

You intend to defraud if you intend to deceive another person or trick them.⁶

Note that it is not necessary for a conviction that anyone actually is defrauded or suffers a loss because of your acts. All that matters is the fraudulent intent.⁷

Pass, use, or alter

Under this code section, you pass, use, or attempt to pass or use a document if you represent to someone that the document is genuine or real. The representation may be made by words or conduct and may be either

• direct or
• indirect.⁸

You alter a document if you do any of the following:

• add to it,
• erase something on it, or
• change a part of the document.⁹

Fortunately, there are legal defenses to help you…

2. Best Defenses

Our law firm has handled thousands of cases involving check fraud. We have had great success in getting these bad check charges reduced or dismissed completely by using one of these four common defenses:

1. you had no intent to defraud,
2. you had consent to make changes to a check,
3. you had no knowledge that a check was bad, and/or
4. you acted under duress

No intent to defraud

You are only guilty under this code section if you acted with the intent to defraud. This means it is a legal defense to show that you 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 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.

Certainly, prosecutors may be skeptical of your claim that you just made an honest mistake. That is why we get busy right away compiling all the evidence possible to show that you had no criminal intent.

Consent to make changes to a check

While it is a crime under PC 476 to alter a check, you are not guilty if you:

1. acted with permission, and
2. received this permission from the party responsible for the check or bill.

Consent, then, is always a valid defense. We use every investigative technique available to find emails, memos, or eyewitnesses to show that the person responsible for the check approved of your actions.

No knowledge that a check was bad

Recall that you are only guilty under this statute if you know a check was false or altered. This means you are innocent if you do not have this knowledge. Perhaps, for example, you became the owner of a bad check by accident.

In our experience, showing a lack of knowledge is one of the strongest defenses against fraud. The prosecutor has no way of positively proving what was happening in your head; meanwhile, we use every litigation trick in the book to poke holes in the state’s arguments.

You acted under duress

It may be an effective defense if you can show that someone else threatened to immediately harm you or your family if you did not commit check fraud. In short, you only broke the law out of duress, and any reasonable person in your situation would have acted the same.

If the duress defense may apply to your case, we would investigate and find all the evidence out there showing that your actions were justified under the circumstances.

3. Penalties

If you violate this statute, you are 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
• your criminal history.

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.

In addition to any fines and incarceration, the judge may order you to pay full restitution to any victims in your case.

4. 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:

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

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. Expungements

If you are convicted of check fraud, you are entitled to an expungement provided that you:

1. successfully complete probation, or
2. complete a jail term (whichever is relevant).

If you violate a probation term, you could still possibly get the offense expunged. This, though, would be in the judge’s discretion.

Under Penal Code 1203.4, an expungement releases you from virtually “all penalties and disabilities” arising out of the conviction.¹¹

6. Gun Rights

A conviction under this statute may have a negative effect on your 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
• you are convicted of the same,

you will lose your rights to own and possess a gun.

7. Related Offenses

There are four crimes related to check fraud. These are:

1. Writing bad checks – Penal Code 476a PC,
2. Forgery – Penal Code 470 PC,
3. Grand theft – Penal Code 487 PC, and
4. Petty theft – Penal Code 484 PC.

Laws in the Neighboring States

Please see our article on Nevada ‘Bad Checks’ Laws (NRS 205.130) for similar accusations in Nevada.

For similar accusations in Colorado, please see our article on “Check Fraud Laws in Colorado – CRS 18-5-205.”

Additional Reading

For more in-depth information, refer to these scholarly articles:

• The Inappropriateness of the Bad Checks Penalty – University of Michigan Public Law.
• Bad Checks Make Bad Law and Bad Policy – Air Force Law Review.
• Bad check diversion program collection letters may violate federal consumer protection laws – Journal of the National District Attorneys Association.
• Problems with Bad Checks in Bankruptcy – Business Law Review.
• Time to Close the Collection Agency: Addressing the Abuse of Bad Check Laws – Charleston Law Review.

Legal References: