Fraud in San Diego
In San Diego fraud includes a wide range of crimes within the California Penal Code; consisting of actions that resulted in an unfair benefit for the defendant and/ or harmed another person or caused them a loss. Fraud is any misrepresentation of fact by either words or conduct, that induces another person to act in a way that is injurious to them. Generally speaking, a person commits fraud by committing an act that results in an unfair or undeserved financial gain and/or causes harm or loss to another person.
The suggestion of something as a true fact, which is known to be untrue;
- Positive assertion of a known untrue fact making a person believe its true;
- The suppression of a true fact;
- A promise made without any intention of performing it;
- Any other act to deceive.
- Any breach of duty without intent to fraud, but still gains an advantage to the other person;
- Any act or omission that the law specially declares to be fraudulent, without respect to actual fraud.
Most Fraud Offenses Require Specific Intent
Specific intent is the intent to both, commit an act and to cause a particular result. For specific intent crimes, the prosecution needs to prove that the defendant intentionally committed an act and intended to cause a particular result when committing that act. The prosecution will aim to prove specific intent with the circumstantial evidence in your case.
Fraudulent acts are primarily driven by two motives:
- Desire to escape criminal culpability.
Fraudulent intent will be inferred from evidence that the defendant attempted to conceal activity.
Example: Defendant's misrepresentations.
- Financial advantage.
Fraudulent intent will be inferred from whether the defendant profited or had something to gain from the activity.
Example: Defendant converted money to his or her own use.
Fraud Offenses May Also Be Federal Crimes
Fraud offenses in San Diego are also federal crimes which means that someone could be prosecuted for a fraud offense in state court as well as in a federal court. This could subject someone to increased penalties. The government in San Diego may seize any money or other property that was involved in the fraudulent activity through a process authorized by law.
White Collar Crimes That Involve Fraud or Dishonesty to Obtain Unlawful Gain.
Fraud is the use deception to obtain financial advantage. Fraud may be achieved by actions or words. There are two separate statutes in California that deal with check fraud.
California PC 476 makes it illegal to write, make, pass, or possess a check that has been altered, forged or is a fake, in an attempt to obtain money, services, or property with intending to commit a fraud.
California PC 470 makes it illegal to knowingly forge or alter another person’s name, handwriting or signature and present it as genuine for personal gain with fraudulent intent. Both of these offenses
Grand Theft Fraud
Theft is the taking of another person’s property with intent to permanently deprive. Theft may be achieved by larceny, false pretense, trick or embezzlement.
Ultimately, the value of the property stolen is the determining factor that decides how a person is charge. California PC 487 makes it grand theft to illegally take property valued at $950 or more.
An insurance claim does not need to be paid out to be charged with fraud.
California PC 550(a)(1) makes it illegal to knowingly present a false insurance claim to obtain unlawful gain.
California PC 550(b)(1) makes it illegal to make any false statement of material fact in an insurance claim.
Generally, computer crimes are any offense that involve cyber fraud.
California PC 502 makes it illegal to knowingly access and without permission alter, damage, delete, destroy, or otherwise use data, network or computer system with the intent to defraud, deceive or extort another.
A threat is putting another person in fear thru the use of force. Threats may be achieved verbally, physically, or electronically.
California PC 518 makes it illegal to use force or threats to blackmail another person in order to obtain financial advantage.
Dirty money is any money earned illegally. Money laundering is the offense of channeling the dirty money back into the economy thru a legitimate use, in order to prevent tracing the criminal source of the money. There are two separate statutes in California that deal with money laundering.
California Health and Safety Code section 11370 deals with money only earned from drug crimes.
California PC 186.10 deals with money that’s related to any kind of crime.
Stealing is the physical removal of another person's property without the consent of the owner and with the intent to permanently deprive. Embezzlement is the offense of fraudulently converting another's property for own benefit.
California PC 503 makes it illegal to fraudulently appropriate money or property that belongs to another person and has been entrusted to the defendant.
Avoid Immigration Implications for Fraud
Offenses with fraud or deceit as an element or that are inherently fraudulent are automatically considered crimes of moral turpitude because of the fraudulent nature of these offenses. Crimes of moral turpitude are offenses that the U.S. government considers go against society's standards of morality. Crimes of moral turpitude are subject to removal or deportation proceedings. The following defense strategies will help avoid immigration consequences:
- Amount of loss to the victim cannot exceed $10,000.
- Avoid pleading to an offense that has fraud or deceit as an element.
- Consider a related offense with less than one year sentence on a single count.
Q: What are white collar offenses?
A: White collar offenses are financially motivated, nonviolent offenses that are committed through the use of deception and fraud. In California, the most common white collar offenses range from check fraud, forgery, credit card fraud, to insurance fraud, healthcare fraud, and identity theft.
Q: Are white collar offenses specific intent crimes?
A: Yes, white collar offenses are specific intent crimes. Specific intent is the intent to both commit an act and to cause a particular result. In order to convict you of any white collar offense, the prosecution must prove beyond a reasonable doubt that you intentionally made a false oral, written or behavioral statement for the purpose of obtaining compensation or unfair advantage when committing the fraud.
Q: What is the difference between actual and constructive fraud?
A: Actual fraud is any act to deceived another. It can be in the form of a suppression of a true fact, the suggestion of something as a true fact when you know it to be untrue, or a promise made without any intention of performance. Whereas, constructive fraud is any act or omission or breach of duty without the intent to commit fraud but that results in an unfair advantage.
Q: What is considered check fraud in California?
A: Under California Penal Code section 476, check fraud is the making, passing, uttering or publishing of any fictitious or altered bill, note, check or other instrument in writing for the payment of money or property of any real or fictitious financial institution with the intent to defraud.
Q: What are the differences between a fake, altered or bad check?
A: A fake check is one that is drawn from a non-existent bank, non-existent person or a bank account that no longer exists. Whereas an altered check is one that is drawn from an existing bank account but that has been modified making it appear different from its original form and causing it to have a different legal effect. Lastly, a bad check is one that is drawn from an existing bank that has been made or delivered for the payment of money while knowing that there are insufficient funds in the bank account for the payment of that check.
Q: What is considered wire tap fraud?
A: Wire tap fraud is a scheme to commit fraud using electronic means of communication and false pretenses to specifically deceive another in an effort to obtain money. It is important to note that you do not have to accomplish the goal of obtaining money to be charged for wire tap fraud.
Q: What is considered credit card fraud in California?
A: Under California Penal Code section 484(e), credit card fraud is the selling, transferring, acquiring or otherwise possessing the credit card or credit card information of another without that person's consent. Credit card fraud includes a
broad category of offenses ranging from fraudulent acquisition of the credit card to wire tap fraud for making a credit card transaction online using a counterfeit card or forging another person’s name without their consent.
Q: What is considered identity theft in California?
A: Under California Penal Code section 530.5, identity theft is the unlawful and intentional acquisition and possession of another’s personal identifying information to obtain or attempt to obtain credit, goods, services, real property or medical information without that person’s consent. Identity theft becomes wire tap fraud when you gain access to that person’s computer information in order to create an account or get money that you are not entitled to.
Q: Are fraud offenses considered wobblers in California?
A: Yes, in California most fraud offenses are considered wobblers. This means that the prosecution has discretion to file charges for these offenses as either a misdemeanor or a felony. To make this determination, the prosecution will look to see if you have a prior criminal history, the circumstances of the charges and the amount of the fraud alleged.
Q: What are the penalties for misdemeanor fraud offenses?
A: If you are found guilty of misdemeanor fraud offenses, you could be sentenced to a maximum of one year in county jail, be fined up to $1,000 and receive summary probation.
Q: What are the penalties for felony fraud offenses?
A: If you are found guilty of felony fraud offenses, you could be sentenced up to sixteen months, two or three years in California state prison, be fined a maximum of $10,000 and receive formal probation.
Q: What is considered auto insurance fraud?
A: Auto insurance fraud has two categories of offenses, property fraud and collision fraud. Property car insurance fraud will result when you file a false insurance claim, reporting damages to your vehicle that are pre-existing, non-existent, or inflated. Collision car insurance fraud occurs whenever you conspire to stage an accident on paper by intentionally and covertly inflicting damage on your vehicle or to inflate medical bills and misrepresent the facts or create the illusion of a legitimate accident.
Q: What are the penalties for misdemeanor auto insurance fraud?
A: If you are found guilty of misdemeanor Penal Code sections 550(a) or (b) you could be sentenced to a maximum of one year in county jail, be fined up to $1,000 and receive summary probation.
Q: What are the penalties for felony auto insurance fraud?
A: If you are found guilty of felony Penal Code sections 550(a) or (b) you could be sentenced up to two to five years in California state prison, be fined a maximum of $50,000 or double the alleged cost of the fraud and receive formal probation.
Q: What is considered welfare fraud in California?
A: California welfare programs include CalWORKS, CalFresh, and Medi-Cal. Pursuant to the Welfare and Institution Code section 10980, welfare fraud is the failure to report significant information or the making of false statements when applying for any of these government welfare programs in order to receive benefits that you are not actually entitled to.
Q: What is considered workers compensation fraud?
A: Under California Insurance Code section 1871.4, workers compensation fraud is the making or causing to be made or presented, a knowingly false or fraudulent written or oral material statement or representation for the purpose of obtaining or denying any workers’ compensation benefits.
Q: What are the penalties for misdemeanor workers comp fraud?
A: If you are found guilty of misdemeanor Insurance Code section 1871.4, you could be sentenced to a maximum of one year in county jail, be fined up to $150,000 or double the fraud amount, make restitution to the victims of the fraud and receive summary probation.
Q: What are the penalties for felony workers comp fraud?
A: If you are found guilty of felony Insurance Code section 1871.4, you could be sentenced up to two, three or five years in county jail under California’s realignment program, be fined a maximum of $150,000 or double the alleged cost of the fraud, make restitution to the victims of the fraud and receive formal probation.
Q: Are there immigration consequences for white collar offenses?
A: Yes, white collar offenses generally involve an intent to defraud and are therefore considered crimes of moral turpitude. Crimes of moral turpitude are offenses that the United States government considers go against society's standards of morality. This means that if you are an alien in the U.S. who is currently facing charges for an offense of moral turpitude where the loss to the victim exceeds $10,000 or the offense was committed within five years after the date of admission to the U.S. and can result in a sentence of imprisonment for at least one year, you will be considered deportable alien.
Q: How can I avoid immigration consequences for white collar offenses?
A: It is imperative that you retain a knowledgeable fraud criminal defense attorney who understands the nuances of crimes of moral turpitude and has experience avoiding the immigration consequences they carry. At Monder Law Group, we make sure that you do not take a plea deal for an offense that has fraud or deceit as an element to the offense. We have vast experience negotiating white collar cases with the prosecution to obtain a conviction for a related offense with less than one year sentence on any single count. Attorney Vik Monder will personally look at the specific allegations in your case to make sure that the amount of loss to the victim does not exceed $10,000. You have worked hard to make a life in this country, do not risk that life, contact Attorney Vik Monder now to discuss the best defense for your case!