Not by itself. A check that bounces because of an honest mistake, a bank error, or a deposit that did not clear in time is not a crime. Under California’s bad check law, the prosecution must prove that you knew there were not enough funds or credit to cover the check and that you intended to defraud.

What has to be proved

Under Penal Code section 476a, a bounced check is a crime only when the person willfully, with intent to defraud, made, drew, delivered, or used the check knowing at the time that there were not enough funds in, or credit with, the bank to pay it and all other outstanding checks on the account in full when presented. Intending to defraud means intending to deceive someone else to cause a loss of money, goods, services, or something else of value, or to cause damage to a legal, financial, or property right (CALCRIM No. 1970). No one has to be actually defrauded or actually lose anything (CALCRIM No. 1970). What the law tests is what you knew and intended when you wrote or used the check, not simply whether it cleared.

Two defenses in the jury instruction

The jury instruction for this offense includes two defenses. The first is a reasonable expectation of payment: even if you knew funds were short, you did not intend to defraud if, when you acted, you reasonably and actually believed the check would be paid when presented, for example because a deposit was expected to post first (CALCRIM No. 1970). The second is informing the payee: if, when you wrote or used the check, you told the person designated to receive payment that there were insufficient funds for it to be paid, you are not guilty of this crime (CALCRIM No. 1970). When the evidence raises either defense, the jury is told that the prosecution must prove beyond a reasonable doubt that you intended to defraud or, for the second defense, that you did not tell the payee.

How the dollar amount changes the charge

If the total of all checks you are charged with and convicted of making or using is $950 or less, the offense is punishable only by up to a year in county jail, which makes it a misdemeanor (Penal Code section 476a(b); CALCRIM No. 1970). There are two exceptions. The $950 limit does not apply if you have three or more prior convictions under the forgery and bad check statutes (Penal Code sections 470, 475, 476, or 476a); the statute’s list also reaches certain petty theft, out-of-state, and federal convictions for equivalent conduct. And if you have a prior conviction for an offense on the short list in Penal Code section 667(e)(2)(C)(iv), such as any homicide or attempted homicide or certain sex offenses, or for an offense requiring sex offender registration, the court may instead impose a sentence under section 1170(h). Over $950, or when an exception applies, section 476a(a) allows either a county jail term of no more than one year or a sentence under section 1170(h). The $950 line is part of section 476a itself, in its current form since Proposition 47 in 2014.

One piece of paperwork carries special weight. If the check was formally protested for insufficient funds, the notice of protest is admissible to prove the check was presented, not paid, and protested, and it is presumptive evidence that you knew the funds or credit were insufficient (Penal Code section 476a(c)). A protest is a certificate of dishonor made by a notary public or certain other officials (Commercial Code section 3505(b)), which is different from an ordinary returned-check notice.

If the district attorney contacts you

Some district attorney’s offices run a bad check diversion program, which may be operated by a private company under contract with the office (Penal Code section 1001.60). Under it, the district attorney may agree in writing not to prosecute for a period of up to six months while you complete a class, pay full restitution (the face value of the check plus bank charges), and pay any diversion fees (Penal Code section 1001.64). Because the program involves payments and a written agreement, review any letter with a lawyer before you respond.

Evidence that matters

Before assuming a bounced check will or will not lead to charges, gather and review with a lawyer:

  • Bank records showing the account balance and any pending deposits or transfers at the exact time the check was written and presented.
  • Any message to the payee, before or around the time of the check, mentioning funds, a pending deposit, or a payment plan.
  • Any notice of protest and the bank’s return records, with their dates.
  • Records showing what you reasonably expected to be in the account, such as a paycheck or transfer that was scheduled but delayed.

A check with a forged signature is a different problem, covered by forgery law. A prosecutor may also treat using a bad check to obtain property as grand theft (Penal Code section 487), filed instead of or together with section 476a, although the same conduct cannot be sentenced under both (CALCRIM No. 1970, Related Issues).

If a check you wrote did not clear and you are being told it could be a crime, or you are owed money on a check that bounced, the Law Offices of David S. Chesley can review your bank records and communications before you respond to a demand letter or the district attorney. Call (800) 755-5174 to discuss your case.