In 2008, the California Justice Department started keeping tabs on the gaming sector. The California gaming regulatory jurisprudence is tailored to achieve a level ground for all types of gamblers. The California Senate passed the Gaming Act in 2008, which, in addition to the Penal Code, imposed various limitations and regulated the gaming industry. This Act reinforced the provisions of the California Penal Code on gambling fraud.
The legal gambling body in California lays down the bare minimums required of the gaming industry. For instance, The Gaming Act primarily aims at weeding out all kinds of fraudulent activities during gambling. On the other hand, the Penal Code highlights various offenses involving gambling fraud, and the punishments for each type of offense.
If you have been charged with the offense of gambling fraud in Orange County, you will need the services of experienced and competent criminal defense attorneys to assist you in building an excellent defense strategy. You will have a high risk of being convicted if you fail to contact a criminal defense attorney. Don’t put your future at risk by attempting to speak out for yourself.
We at the Orange County Criminal Lawyer have highly qualified and experienced criminal defense attorneys. These attorneys will help you craft the most suitable defense strategy for your gambling fraud charges. We have in-depth familiarity with all the local court processes within Orange County. Over the years, we have gathered extensive experience in helping defendants charged with offenses involving gambling fraud. Contact us to learn more about our services.
The Legal Definition of Gambling Fraud
Penal Code 332 is California's primary law on gambling fraud. According to PC 332, it is unlawful to utilize the 'three-card monte' game, a hand sleight, or any other gaming tool to obtain money or valuable property from an innocent person via fraudulent means. It is also a criminal offense to pretend to predict or know the future of another person with the intent to defraud him/her.
Take note that the offense of gambling fraud is not similar to illegal gaming. The court will hold you liable for gambling fraud if you are dishonest or engage in fraudulent activities while gaming with others, and you obtain money or property due to your fraudulent or dishonest acts.
California Penal Code 332 specifically prohibits the use of ‘tricks’ to defraud another person of his/her property or money. You will not be convicted of the offense of gambling fraud if you won fairly in a poker game. Generally, you will not face any gambling fraud charges if you utilized your experience and knowledge to fairly defeat the other party in a gambling game.
What the Prosecution Must Prove for you to be Convicted of Gambling Fraud
The standard of proof in any criminal court trial is beyond a reasonable doubt. The main element that the prosecution must prove for you to be convicted of gambling fraud is that you had an intention to defraud. Also, the prosecution must demonstrate how you acted fraudulently and how your actions prejudiced the victim by making him/her lose money or property. Here is a brief discussion on what the prosecutor must prove for a charge of gambling fraud to hold water:
Intention to Defraud
For you to be convicted of gambling fraud, the prosecution must prove beyond any reasonable doubt that from the onset of the game, you had a premeditated intention to trick the other party, with the sole intent to defraud him/her of his/her property or money. This forms the bedrock upon which the foundation of the charge of gambling fraud against you may be laid.
To ‘trick’ in the context of gambling fraud, presupposes that you engaged in conduct that involves cheating to obtain an undue advantage over the other person by unscrupulous means that are not established by the natural rules of the game. If the prosecution fails to prove that your primary aim of participating in the game was to defraud the other person of his/her property or money, your charges will be dismissed.
The term ‘fraud’ means the deliberate misrepresentation of facts to achieve an undue advantage over another person. In a case of gambling fraud, the court will hold you to have acted fraudulently if you present facts calculated to mislead the other party into concluding that what you have presented to him/her is true while knowing that it is false.
The use of natural intelligent tricks as per the requirements of poker games does not amount to fraud, as long as you do not aim at gaining undue advantage over the other person by use of ways other than those permitted by the natural rules of the game. In regards to fortune-telling, the Supreme Court of the State of California has defined fraud to mean an act of pretending to predict the future of another person, while knowing that you are not able to do so for you to acquire this person’s money or property
Loss of Money or Property
The prosecution must prove beyond a reasonable doubt that you were conducting the fraudulent activity intending to convince the other person to part with his/her property or money permanently. However, it isn’t a requirement for the prosecution to prove that indeed the victim lost his/her property or money.
The term property includes anything of value that is measurable in dollars. The prosecution must convince the jury that your sole intention was to obtain a particular piece of property of value or money fraudulently from the other party.
The Most Common Gambling Activities in California
The most common gambling activities in the state of California include arcades, gaming machines, betting, lotteries, casino, and bingo. Some of these activities may be licensed, while others are not and considered to be illegal. Below, we discuss in detail these gambling activities:
Both adults and minors can participate in arcade games. There are various arcade gaming centers in California. These centers may be either adult-based or family-based. Arcade gaming centers for adults are age restrictive, and no person who is below 18 years old is permitted to enter them.
Betting involves the placement of stakes that favor a specific outcome. There are two main categories of betting that are most prevalent in the state of California: pool betting and betting of fixed odds.
A gamer participating in betting of fixed-odds may give predetermined results to a particular event. For instance, he/she may predict that a specific team will score two goals in a soccer game. Betting of fixed-odds can occur online or at betting shops. On the other hand, winnings during pool betting are largely influenced by the number of stakes in a specific pool.
In the state of California, you will find various casino games offered online or at casino premises. Some examples of casino games include blackjack, American roulette, poker, and baccarat.
Some examples of lotteries include raffles, tombolas, and sweepstakes. There is a state lottery in California, which is organized by the State Government of California. California’s criminal laws prohibit individuals who are below 18 years old from participating in lotteries. Such individuals may be charged with a misdemeanor if they take part in lottery activities.
5. Gaming Machines
A gaming machine is any device that can act as a gambling platform, including slot, fruit, and jackpot machines. Domestic computers are not categorized as gaming machines in the state of California.
Legal Forms of Gambling in California
The state of California has legally recognized the following forms of gambling:
- Indian casinos, such as Bingo halls and Las-Vegas style casinos that incorporate games like slots, blackjack, and poker.
- Card clubs, where gamers bet against each other and then pay a participation fee to the owner of the card club.
- Parimutuel betting, where the house pools gamers against each other, collects their stakes and then deducts management fees and taxes, and the rest of the money will comprise the winnings. As per California’s gambling laws, parimutuel betting is only permitted during horse racing.
- Charitable gambling, where the proceeds will be used to fund charitable purposes. Often, charitable gambling is organized by charities.
- State lottery, which is organized and managed by the State Government of California. Some of the games offered by the State lottery include SuperLotto Plus and Mega Millions.
If you engage in a gambling activity that is not legally recognized by the state of California, you may be charged with the criminal offense of illegal gaming. The offense of illegal gaming is listed on Penal Code 330, and it is categorized as a wobbler.
The Most Common Forms of Gambling Fraud in California
There are numerous forms of gambling fraud in the state of California. Some of the most common forms include:
1. Multiple Accounts
If you utilize an online platform to gamble, you may be required to open an account. Some gamblers tend to open multiple accounts to increase their chances of winning. Most of these multiple accounts are opened with fake credentials, resulting in criminal charges for gambling fraud.
2. Fraudulent Top Ups
Nowadays, many online betting sites and casinos require their users to 'top-up' through their phones. A fraudster may trick an innocent person to top up his/her betting account with his/her money. This fraudulent activity is equated to theft because the fraudster has stolen someone else's money to fund his/her gambling addiction.
Also, gamers may top up their online accounts with fake credentials. Some of them may utilize a stolen debit or credit card to fund their gambling habits. All these activities are deemed to be 'fraudulent top-ups,' and they may result in charges for gambling fraud.
3. Bonus Abuse
An online gambling service may offer bonuses to new members when they sign up. Some old members may sign up for multiple accounts to accumulate more rewards. This form of fraud is referred to as 'bonus abuse,' and it is quite prevalent in the state of California.
Chargebacks are requests sent to credit card providers or banks to reverse top-up transactions on betting sites. Chargebacks qualify as fraudulent activities because the money is usually refunded at the expense of the gambling provider.
A gamer may deliberately lose to gain a bonus or an advantage at the expense of the betting provider. The prosecutor may find it challenging to prove this form of fraud because he/she must establish that the defendant had the intent to defraud.
6. Chip Dumping
Chip dumping mainly occurs at poker games. Here, a fraudster utilizes multiple accounts to influence the outcome of a particular game. These multiple accounts enable him/her to cheat against or in favor of an opponent.
7. Fortune Telling
Generally, fortune-telling is not prohibited in the state of California. It is deemed to be a form of free speech, and it is protected by the first amendment of the United States constitution. What is prohibited explicitly by the Penal Code of California is fortune-telling fraud. The offense of fortune-telling fraud occurs when a fortune teller doesn’t believe in his/her predictions or readings but still solicits for money or valuable property from members of the public.
The Penalties for Gambling Fraud
Just like petty theft or grand theft, the punishment for gambling fraud is dependent upon the value of the property or money that you defrauded the other person. You can be charged with either felony gambling fraud or misdemeanor gambling fraud based on the property’s value or the total amount of money that you obtained. This makes the offense of gambling fraud to be categorized as a wobbler.
If you defrauded an individual of property or money whose worth is less than $950, you will be charged with misdemeanor gambling fraud. On the other hand, if you obtained property whose worth exceeds $950, you will face charges for felony gambling fraud.
Sometimes, the prosecution may charge you with both gambling fraud and either grand theft or petty theft. This may result in extremely severe penalties upon conviction.
If you are convicted for the first time of misdemeanor gambling fraud, the punishments that will be meted against you will be the same penalties associated with the offense of petty theft. As such, you may be ordered to pay a fine of up to $5,000. Also, you may be incarcerated for a jail term of not more than one year. Upon conviction of felony gambling fraud, the court may order you to pay a fine not exceeding $10,000 or serve a jail term of 16 months, two years, or three years.
The Legal Defenses to the Offense of Gambling Fraud
The decision to charge you with a misdemeanor gambling fraud charge or a felony gambling fraud charge lies squarely with the prosecution. This is dependent upon the value of the property or money that you fraudulently obtained. Regardless of whether you have been charged with felony gambling fraud or misdemeanor gambling fraud, you will need an attorney to help you avoid a conviction. Your criminal defense attorney can use the following defenses to help you obtain an acquittal or a dismissal:
- Freedom of speech
- What you obtained was invaluable
- Lack of intention to defraud
Here is a brief discussion of these defenses:
Freedom of Speech
The defense of freedom of speech applies if you have been charged with the offense of gambling fraud involving fortune-telling. If you are a fortune-teller or an astrologer who is a member of a particular religion that believes in forecasting future events, you will not be guilty of the crime of gambling fraud just because you accepted money or property from certain individuals to read their fortunes for them. Additionally, if your primary aim was to entertain the members of the public, the charges against you for gambling fraud will be dismissed.
However, if there is compelling evidence that you indeed engaged in fortune-telling yet you knew that you are incapable of forecasting the future and you had the intent to defraud the members of the public of their valuable property or money, you may be held guilty for gambling fraud. Fraudulent misrepresentation of facts is what is explicitly forbidden by the California Penal Code.
The legal defense of freedom of speech is a constitutional defense that is enshrined in the First Amendment to the Constitution of the United States of America. If you successfully utilize this defense, you will obtain an acquittal or a dismissal.
What you Obtained was Invaluable
For you to be convicted of the offense of gambling fraud in the state of California, the prosecution must prove beyond a reasonable doubt that you obtained property of value or money from the person whom you defrauded. It isn’t sufficient for the prosecutor to only prove that you engaged in fraudulent activities during gambling. They should prove that you obtained some valuable property or a specific amount of money. If you obtained property that was not of any value, you will receive an acquittal.
Lack of Intention to Defraud
Just like in any other criminal court trial, the absence of the intention to commit the offense that you are charged with is a legal and valid defense to gambling fraud. One of the crucial elements that the prosecution must prove beyond a reasonable doubt for you to be convicted of gambling fraud is intent to defraud. If the prosecutor fails to do so, you may be acquitted, or your charges will be dropped. If you have intent to defraud, it means that you acted out of malice and made misrepresentations to another person who was not aware of your intentions, with an aim to obtain a desired and a premeditated outcome, to his/her detriment.
Gambling Fraud vs. Illegal Gaming
The criminal offense of illegal gaming is closely related to the crime of gambling fraud. Penal Code 330 is California’s primary law on illegal gaming. The offense of illegal gaming is also referred to as ‘illegal gambling.’ Both illegal gaming and gambling fraud are categorized as wobblers in the state of California.
The main difference between the offenses of illegal gaming and gambling fraud is that illegal gambling criminalizes engaging in certain games, while gambling fraud prohibits fraudulent activities during gaming. You will be held to have committed the offense of illegal gaming if you deal in, play, carry on, open or conduct, any of the prohibited games listed on PC 330. Some of these prohibited games include:
- Seven-and-a half
- Rouge et Noire
Furthermore, any game that can be classified as a banking game or a percentage game is prohibited in the state of California. However, you will not be charged with the offense of illegal gaming if you engaged in a prohibited game to fund charitable purposes.
The penalties for illegal gaming are quite similar to those for gambling fraud. If you are convicted of misdemeanor illegal gaming, you may face a county jail term of up to six months or pay a fine not exceeding $1,000. The punishments for felony illegal gaming include a jail sentence of a maximum of three years or a fine of up to $5,000. You will probably receive a sentencing enhancement of an additional jail sentence or more fines if you already have a prior conviction of illegal gaming.
Contact an Orange County Criminal Attorney Near Me
The criminal offense of gambling fraud can attract grievous penalties that may be devastating and detrimental to your reputation and future life. For instance, you may have to battle with a criminal record that can prevent you from securing a good job or decent housing.
You will need a highly experienced, competent, and reliable criminal defense attorney if you have been charged with gambling fraud. We at the Orange County Criminal Lawyer are willing to assist you in building an excellent defense strategy to avoid being convicted. Call us today at 714-262-4833 for a free case evaluation. We will be glad to help you.