Posted on February 22, 2016
“Bad Check” Charges – California Penal Code 476 PC
In California, knowingly passing a check with insufficient funds with the specific intent to defraud the recipient (“Check Fraud”) is charged under Penal Code 476. If the check amount is for $950 or less, then the prosecution will charge you with a misdemeanor violation of this offense. If the check amount exceeds $950, the offense becomes a wobbler where the prosecutors holds discretion when electing to charge you with either a felony or misdemeanor.
In the event you’re being investigated for check fraud, give no statement to the bank or law enforcement as you’re liable to say something that will be used against you in court. Contact a Check Fraud Lawyer the moment you suspect an investigation is occurring. It’s very difficult for the government to prove your state of mind for this offense without you giving a statement to police.
This article will address 8 important things you should know about Check Fraud charges.
1. What Must the Prosecutor Prove for Writing a Bad Check?
According to the California Jury Instructions, before you can be found guilty of writing a bad check under PC 476, the prosecutor must prove each of the following elements beyond a reasonable doubt:
1. You wrote a check or passed a check with insufficient funds;
2. You had knowledge of the insufficient funds;
3. You harbored the intent to defraud the recipient.
2. What is the Punishment for Writing a Bad Check PC 476?
The legal consequences will depend on whether you were convicted of a felony or misdemeanor. A misdemeanor conviction carries up to 1 year in the county jail and a fine amount not exceeding $1,000. A felony conviction carries a sentencing range of 16 months, 2, or 3 years in the county jail.
If the court grants probation, the judge will impose a three year probation period and community service. A conviction will also require you to pay back restitution to the victim.
3. What are the Defenses to Writing a Bad Check?
I. Lack of Knowledge
You did not knowingly pass a check with insufficient funds. Instead, you reasonably believed the check would clear the bank or perhaps you innocently forgot to transfer funds into the account you wrote the check out of. Additionally, you could have believed that your account was setup with overdraft protection. If you did not know of the accounts insufficient funds, then you are not guilty of this crime.
II. Lack of Intent
You did not have the intent to defraud the recipient of the check. This charge requires you harbor the specific intent to defraud the recipient, therefore, if you did not mean, and perhaps accidently passed the check, and had full intentions of having the check clear, then you are not guilty of this crime.
III. Miranda Violation
The incriminating statements you gave to the police were a violation of your Miranda rights under the U.S. Constitution. This evidence may be what the government is using to prove you harbored the specific intent to defraud or that you had knowledge that the account balance was not sufficient to cover the check amount.
IV. Illegal Search & Seizure
Law enforcement committed an unreasonable search & seizure of your belongings and discovered incriminating physical evidence in violation of your Fourth Amendment right. Violations occur in the context of defective search warrants, lack of a warrant altogether, or unlawful traffic stop.
4. Early Mitigation Package
If you’re cited or arrested for this offense, the police will forward the evidence to the prosecuting agency for review to determine whether formal charges should be brought against you. The Law Offices of John D. Rogers can put together a mitigation package to submit to the filing prosecutor in an effort that they reject the case completely. The package may include, character letters, additional evidence, your lack of criminal history, and perhaps your side of the story. If the prosecutor elects to reject the case, then there will be no criminal filing and thus the case is finished without ever having to go to court.
5. What are Examples of Writing a Bad Check?
• Writing a check to someone knowing that the account has been closed.
• Tendering a check from an account you know has insufficient funds available.
• Manufacturing a false check and tendering it to the grocery store to buy goods.
• Deliberately putting a stop on a check with the intent to steal goods, items, or services.
6. Felony Reduction to a Misdemeanor
If the amount exceeds $950, the offense then becomes a wobbler. As mentioned above, the prosecutor holds discretion when electing to charge you with a felony or misdemeanor. Thus, if you’ve been convicted of a felony, and you were placed on probation, then you may be eligible to reduce your conviction to a misdemeanor under PC 17(b).
Obtaining reduction under PC 17(b) carries a full restoration of your rights, including your right to own and possess a firearm. The judge is given wide discretion and factors the court will consider are:
• Your prior criminal history
• How many victims were there in your case
• The planning and sophistication of your offense
• Whether you suffered any probation violations
• How long ago your offense occurred
• The amount of money taken
• Your reason for seeking reduction – e.g., state licensing, military, employment, etc.
7. Writing a Bad Check Expungement
If you were convicted of this offense, then you may be eligible to expunge your record after successful completion of your probation. To obtain an expungement, a specific petition under PC 1203.4 is required and served on the prosecuting agency. A hearing will be held and if the judge grants your petition, the court will withdraw its finding of guilt, enter a not guilty plea, and dismiss the case. After which, you will be released from all penalties and disability resulting from this conviction carrying considerable benefits when applying for jobs in the private employment sector. For more information about obtaining an expungement for check fraud, contact the Law Offices of John D. Rogers.
8. Free Criminal Defense Consultation
If you’re being investigated or have been charged with check fraud under PC 476, contact Check Fraud Attorney John Rogers at the Law Offices of John Rogers for a free confidential consultation concerning your rights and defenses.