You attempt to cash a $1,000 check at a bank. The teller learns or notices that the bank on which the check was drawn doesn’t exist. You now find yourself charged with “check fraud.”
The California check fraud law is found at California Penal Code 476. The crime occurs when you (1) make, write, pass, possess or attempt to make, write or pass a fake, altered or forged check, (2) do so with fraudulent intent, and (3) represented the check as genuine. Within the fraudulent intent lies the element that you knew the check was fake, altered or forged at the time you presented it.
A Closer Look at the Elements
Fake, Altered or Forged Check
Fake, or fictitious checks, include those:
*Written or drawn on a bank that does not exist
*Endorsed by a person who doesn’t exist or uses a false name
*Made by a non-existent person or entity
If the bank on which the check is drawn exists and the maker had an account at it, the fact that the account was closed or had insufficient funds does not support a conviction for check fraud. It may constitute a “bad check” in violation of California Penal Code 476a.
In an altered check case, the defendant changes the original appearance of the check and the legal consequences or effect of it. As examples of “altered checks”
*Increasing the original amount of the check;
*Erasing and replacing the payee of the check;
*Changing the account, routing or check number
You forge a check by signing another’s name to the check. Forging a check is also a crime under California Penal Code 470.
Intending to Defraud
The prosecutor can prove your intent to defraud from circumstances even without words expressing your intent. Presenting the check can itself be evidence of your fraudulent intent. It does not matter if the bank or person from whom you attempted to cash the check actually paid you or someone was otherwise harmed. The intent to get paid from the check creates the intent.
Defenses
Permission
The lack of authority is a major pillar in a check from prosecution. Thus, if the person whose name is on the signature line allowed or asked you to sign her or his name, then you have not forged the check. Similarly, consent to change the payee or amount also prevents a conviction for check fraud.
Beware that you don’t rely on permission from one who can’t give it. For example, another person cannot authorize you to write a check on a non-existent bank, forge someone else’s name or otherwise participate in another’s criminal or fraudulent scheme.
Lack of Knowledge of Falsity
Fraudulent intent lies at the heart of a check fraud charge. You can negate such intent if you didn’t know the check was altered, fake or forged. This may happen when you take a check as payment from a customer or a debtor of yours. If no one tells you that the check is fraudulent or you didn’t observe signs of it on the check, then presenting it for payment is not check fraud.
To avoid prosecution and financial losses, merchants will often request an identification card and run checks through a scanner.
Punishment
If the amount of the check does not exceed $950 and you didn’t steal another’s identity in violation of California Penal Code 503.5, then check fraud is a misdemeanor. You face up to one year in a county jail and a fine up to $1,000 if the crime can only be prosecuted as a misdemeanor.
Otherwise, the prosecutor can choose to treat check fraud as a felony. For felonious check fraud, the penalties include probation and a one-year term in county jail or either 16 months or two to three years in county jail. You also may be fined up to $10,000.
If you, a family member or friend is charged with check fraud, one of our check fraud attorneys can sp eak with you and gather and examine the evidence against you and your prior record.