Penal Code § 332 PC makes it a crime to use fraud to obtain another person’s money or property through card games, gambling, or fortune-telling. This includes cheating at games of chance or using false pretenses to win bets or wagers.
The language of the statute reads as follows:
332. (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.
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.
Examples
- fraudulently using cards to tell a person’s fortune.
- purposely performing a card scheme to take someone’s money.
- using stacked decks while running a blackjack operation.
Defenses
Criminal defense lawyers draw upon several different legal strategies to help clients contest gaming charges under this statute. A few of these include showing that a defendant:
- did not act with fraudulent intent,
- exercised his/her right to free speech, and/or
- was entrapped by law enforcement.
Penalties
Depending on the facts of the case, a violation of California Penal Code Section 332 can be charged as either a misdemeanor or a felony.
A misdemeanor charge is punishable by custody in county jail for up to one year.
A felony charge is punishable by a state prison term of up to three years.
Our California criminal defense attorneys will explain the following in this article:
- 1. How does California law define “obtaining money by gaming fraud”?
- 2. Are there legal defenses to PC 332 charges?
- 3. What are the penalties?
- 4. Are there related offenses?
Penal Code 332 PC makes it a crime to fraudulently obtain someone else’s money or property by way any of card games or tricks, betting or gambling, or pretensions to fortune-telling.
1. How does California law define “obtaining money by gaming fraud”?
A prosecutor must prove the following to convict a person under this criminal law successfully:
- the defendant fraudulently obtained another person’s money or property, and
- he/she did so through the game of “three-card monte” or any other card games, sleight of hand or tricks, betting, gambling, or through pretensions to fortune-telling.1
For purposes of this section, “fraudulently obtains” includes, but is not limited to, cheating. An example includes gaining an unfair advantage for any player in any game through a technique or device not sanctioned by the rules of the game.2
Further, the legal definition of “fraudulently” is for a person to act with bad faith, a lack of integrity, moral turpitude, or otherwise act dishonestly.3
2. Are there legal defenses to PC 332 charges?
People accused of a criminal act under this statute can challenge the accusation with a legal defense. Three common defenses include defendants showing that they:
- did not act fraudulently.
- exercised their right to free speech.
- were entrapped.
2.1 No fraudulent intent
Recall that people are only guilty under this statute if they act fraudulently. Further, this term has a precise legal definition. Therefore, defendants can always raise the defense that they did not act with fraudulent intent. Maybe, for example, an accused was cheating at a card game as a joke.
2.2 Free speech
This defense often applies with acts of fortune-telling. If fortune tellers or astrologers adhere to a religion that believes in certain methods of foretelling the future, they are probably not guilty of gambling fraud for accepting money to read fortunes. Under this scenario, the fortune teller would be exercising his/her rights to free speech, religion, and expression.
2.3 Entrapment
This defense applies if a person was arrested of a gaming fraud crime after an undercover sting operation. Note that police officers cannot lure a suspect into committing a crime during these operations.
This “luring” is known as entrapment. It applies to unlawful and overbearing official conduct on the part of police officers, like pressure, harassment, fraud, flattery, or threats. Entrapment is an acceptable legal defense provided that the accused shows he/she only committed the crime because of the entrapment.
Depending on the severity of the offense, a conviction can result in a fine and/or jail time.
3. What are the penalties?
The penalties for fraudulently obtaining money or property through gambling are similar to the penalties for California grand theft and petty theft.
As with these penalties, the penalties for gaming/gambling fraud depend on the monetary value of the property that the defendant obtains from his/her “victim.”
If a defendant defrauds someone of property worth more than $950, then such an act is a wobbler offense. A wobbler is a crime that a prosecutor can charge as either a misdemeanor or a felony.
If the money or property stolen in a gambling fraud scheme is $950 or less, then PC 332 can only be charged as a misdemeanor.
The potential penalties for obtaining money or property through gaming fraud as a misdemeanor are:
- misdemeanor (summary) probation,
- up to one year in county jail, and/or
- a fine of up to $1,000.
The potential penalties for obtaining money or property through gambling fraud as a felony are:
- felony (formal) probation,
- up to three years in state prison, and/or
- a fine of up to $5,000 for a first offense, or up to ten thousand dollars $10,000 for a second or subsequent offense.
4. Are there related offenses?
There are three crimes related to gaming fraud. These are:
- illegal gambling – PC 330,
- bookmaking, pool-selling, and wagering – PC 337a, and
- check fraud – PC 476.
4.1 Illegal gambling – PC 330
Per Penal Code 330, illegal gambling is the crime where people gamble in a “banking” or “percentage” game.
A violation of this law is less serious than a violation of PC 332. Illegal gambling is always charged as a misdemeanor, punishable by six months in county jail.
4.2 Bookmaking, pool-selling, and wagering – PC 337a
Per Penal Code 337a, bookmaking, pool-selling, and wagering is the crime where people engage in such activities as:
- bookmaking.
- pool-selling,
- occupying any building, room, or other enclosed space for the purpose of recording bets, and
- receiving, holding, or forwarding money or other items of value that are being wagered in a bet.
Note that if a person commits gaming fraud while doing so in a room used for recording bets, a prosecutor can charge the person with both a violation of:
- PC 332, and
- PC 337a.
4.3 Check fraud – PC 476
Under PC 476, check fraud is the crime where people make, write, or pass a fake or fraudulent check.
As with violations of PC 332, violations under this statute are wobblers that carry the same penalties as gaming fraud.
Legal References:
- California Penal Code 332a PC. See also People v. Proctor (1993) 18 Cal.App.4th 1055.
- California Penal Code 332b PC.
- Black’s Law Dictionary, Sixth Edition – “fraudulent act.”