Credit and Debit Card Fraud California – Laws and Punishment

Penal Code Sections 484e, 484f, 484g, 484h, 484i, and 484j all make it a crime for a person to commit credit card, debit card, and/or access card fraud. These sections make it a crime to use a credit or access card to obtain money, goods or services to which the person is not legally entitled.

• Penal Code 484e PC applies to stolen credit cards. It makes it a crime for a person to sell or possess the credit card, or credit card information, of another person without his consent.
• Penal Code 484f PC applies to forging credit card information. The statute says that it is an offense to alter an existing credit card, or sign another person’s name in a credit card transaction, without his consent.
• Penal Code 484g PC applies to the fraudulent use of a credit card or an account. It says a person cannot use a stolen, fake, or expired card to procure cash or goods while knowing that it is not valid.
• Penal Code 484h PC applies to credit card fraud by a retailer. The code section makes it a crime when a retailer either:

1. 1. accepts payment via a stolen, revoked, or fake credit card when they know it is not valid, or
   2. presents false evidence of a transaction to receive payment for goods when no such transaction occurred.

• Penal Code 484i PC applies to counterfeiting credit cards. The statute makes it an offense for a person to manufacture or possess counterfeit credit cards. It also says a party cannot possess the equipment to make or traffic in counterfeit credit cards.
• Penal Code 484j PC applies to publishing credit card information. It makes it a crime for a person to knowingly communicate credit card information with the intent to defraud a person or business. “Credit card information” includes:

1. 1. PIN numbers,
   2. passwords, or
   3. other private account information.

Examples

• using someone else’s credit or debit card without that person’s consent.
• using a personal credit card knowing that it is connected to an account with no funds in it.
• using a stolen debit card to purchase goods.

Defenses

A defendant can raise a legal defense to fight a credit card fraud charge. A few common defenses are that the defendant:

• had no intent to commit fraud,
• was arrested without probable cause, and/or
• was arrested following an unlawful search and seizure.

Penalties

Most instances of credit/debit card fraud are punishable as:

• forgery,
• grand theft, or
• petty theft.

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

• 1. Are there legal defenses to credit card fraud?
  • 1.1. No intent to commit fraud
  • 1.2. No probable cause
  • 1.3. Unlawful search and seizure
• 2. What are the penalties?
• 3. Are there immigration consequences?
• 4. Can a person get a conviction expunged?
• 5. Does a conviction affect a person’s gun rights?
• 6. Are there related offenses?
  • 6.1. Identity theft – PC 530.5
  • 6.2. Burglary – PC 459
  • 6.3. Unauthorized computer access – PC 502
• 7. What is the recourse for victims of credit card fraud?

1. Are there legal defenses to credit card fraud?

There are legal defenses available to charges of credit card fraud in California.

Three common defenses are:

1. no intent to commit fraud,
2. no probable cause, and/or
3. unlawful search and seizure.

1.1. No intent to commit fraud

A person is only guilty of credit card fraud if he acted with the specific intent to commit fraud.

A person intends to commit fraud when he tries to deceive or trick another person.¹ A defense, therefore, is for the accused to show that he did not act with this requisite intent.

Example: Mark is not guilty of fraud if he performed some act (e.g., used another person’s card) on the basis of an honest mistake.

1.2. No probable cause

The Fourth Amendment to the U.S. Constitution says that police must have probable cause before they can detain or arrest a suspect of a crime.

If a person was stopped or arrested for violating one of these laws, and there was no probable cause, then any evidence obtained following the improper stop/arrest could get excluded from the case. This exclusion could result in the dismissal or reduction in charges.

1.3. Unlawful search and seizure

The Fourth Amendment also declares that we have the right to be free from unreasonable “searches and seizures” by law enforcement.

If authorities obtain evidence from an unreasonable, or unlawful search and seizure, then that evidence can get excluded from a criminal case. This means that any charges in the case could get reduced or even dismissed.

2. What are the penalties?

A violation of PC 484e is charged as grand theft, which is a wobbler. This means the crime can be charged as either a misdemeanor or a felony. The maximum penalty is custody in county jail for up to three years.

A violation of PC 484f is charged as forgery, which is also a wobbler offense. A misdemeanor charge is punishable by up to one year in county jail. A felony offense is punishable by imprisonment in county jail for up to three years.

A violation of PC 484g is charged as either grand theft or petty theft. As noted above, the most severe penalty for grand theft is a felony charge and up to three years in jail. Petty theft is charged as a misdemeanor. The crime is punishable by custody in county jail for up to one year.

A violation of PC 484h is charged as either grand theft or petty theft. The possible penalties are the same as those under Penal Code 484g.

Most violations of PC 484i are wobbler offenses. The most severe penalty includes a felony charge with up to three years in county jail.

A violation of PC 484j is charged as a misdemeanor. The crime is punishable by custody in the county jail for up to six months.

3. Are there immigration consequences?

A conviction for credit card fraud 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.”

A category of “deportable” or “inadmissible” crimes includes aggravated felonies.²

Recall that, depending on the specific facts of a case, fraud can get charged as a felony. If this happens, and there is a conviction, the conviction could lead to detrimental immigration effects.

4. 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 can still possibly get an offense expunged. This, though, is 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.³

5. Does a conviction affect a person’s gun rights?

A conviction may affect the convicted party’s gun rights.

According to California law, convicted felons are prohibited from acquiring or possessing a gun in California.

Again, recall that, depending on the facts of a case, a violation of one of these laws may result in a felony charge. If this happens, and there is a conviction, a defendant will lose his gun rights.

6. Are there related offenses?

There are three crimes related to credit card fraud. These are:

1. identity theft – PC 530.5,
2. burglary – PC 459, and
3. unauthorized computer access – PC 502.

6.1. Identity theft – PC 530.5

Penal Code 530.5 PC makes identity theft a crime in California.

A person commits this offense by taking another person’s personal identifying information for use in an unlawful or fraudulent manner.

6.2. Burglary – PC 459

Penal Code 459 PC says that burglary is a crime in California.

Under this section, a burglary occurs when a person enters any residential or commercial building or room with the intent to commit a felony or a theft once inside.

6.3. Unauthorized computer access – PC 502

Per Penal Code 502 PC, the unauthorized access of a computer is a criminal offense.

A person breaks this law when he accesses a computer, computer data, or a computer network without permission (and usually with an unlawful purpose).

7. What is the recourse for victims of credit card fraud?

People whose credit card information has been stolen should first report the fraud and cancel the card. They can do this through their credit card’s mobile app. Or by calling the bank’s fraud department.

The bank can then launch an investigation. And it should mail out a new card immediately. In the meantime, the consumer can ask the bank for credit to use while waiting for the card to arrive.

Credit card companies should not hold consumers responsible for fraudulent charges as long as they have fraud protection. Therefore, many consumers choose to take no other action once they have been reissued a new card. But fraud victims can also consider:

1. Filing a police report. The police can then investigate the matter and potentially file felony charges against the culprit. If the thief is found and convicted, the judge can order that the thief pay victim restitution; or
2. Filing a civil lawsuit. The victim can sue the thief for theft and fraud. If the thief’s identity is not known, it may be possible to file a lawsuit with a John Doe defendant. This can keep the statute of limitations from expiring. If successful, the victim may be able to recover compensatory damages for financial losses and pain and suffering.

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 “NRS 205.760 – Credit & Debit Card Fraud – Nevada Law.”

For similar accusations in Colorado, please see our article on: “Credit Card Fraud in Colorado.”

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