Criminal Law in California, as relevant to this website, breaks all criminal conduct into six (6) broad “types” of crimes[i]: (1) Crimes Against the Person, (2) Crimes Against Property, (3) Crimes Against Public Health and Safety, (4) Crimes Against Public Justice; and (5) Crimes Against the Person Involving Sexual Assault; and (6) Crimes Against Public Decency and Good Morals. The crime of “Fraudulent Gaming” falls under Crimes Against Public Decency and Good Morals, and is one of six (6) types of crime in this class of crimes which include: (1) Auto Insurance Fraud, (2) Check Insurance Fraud, (3) Credit Card Fraud, (4) Healthcare Fraud, (5) Identity Theft; and (6) Fraudulent Gaming.
§§330 through 337z of the California Penal Code govern California’s criminal law as it relates to the gaming industry. §330 sets forth the misdemeanor of participating in prohibited games, and authorizes a fine ranging from one-hundred ($100) dollars to one-thousand ($1,000) dollars and/or incarceration in county jail for a maximum of six (6) months. This article will focus on California Penal Code §332ii, which provides the penalties associated with the crime of using “three card Monte” or other bets or games, and fraudulently obtaining money from the Victims as a result of those games. It should be noted that the a violation of §332, will be punished in the same manner as the crime of Theft by Larceny, which means the amount[iii] of money the Defendant “fraudulently obtained” will determine whether the punishments are associated with grand theft or petty theft[iv].
If you are Under Investigation[v](Link to “Under Investigation” page) for a violation of §332, or if you have been arrested for a violation of §332, a critical first step to ensuring the best possible outcome to your case is to contact Los Angeles Criminal Lawyer immediately. There are several benefits to contacting Los Angeles Criminal Lawyer immediately after you have been arrested on suspicion of Fraudulent Gaming: (1) Ensuring that the evidence the Prosecution intends to submit at trial were obtained in compliance with procedural requirements set forth by the United States Constitution, (2) Providing a clear and concise narrative of all the facts to your attorney; and (3) Providing your LACL attorney ample time to perfect their theory of defense. BY employing Los Angeles Criminal Lawyer at the earliest time possible, you increase your chances of defeating the case against you altogether, having the charges against you reduced, or reducing the sentence you may face if convicted. All of these outcomes translate into more money in your pocket, and more time enjoying your freedom.
In a nutshell, the Prosecution must prove their case against you beyond a reasonable doubt. In order to meet this burden, the Prosecution will introduce evidence, which was obtained during investigation prior to arrest and information obtained through investigation after arrest. The United States Constitution provides protection to Defendants who have been accused of criminal conduct. Many of these protections deal with how evidence was obtained. Evidence, which was obtained in violation of the United States Constitution triggers what is known as the “Exclusionary Rule.” The effect of the “Exclusionary Rule” is to prohibit the introduction of evidence, which was obtained in violation of the Constitution. Thus, having Los Angeles Criminal Lawyer protecting your rights early on in the process can have a substantial impact on the outcome of your case[vi].
It is a common occurrence, which ultimately harms a Defendant’s case, to contact an attorney only after the Prosecutor begins pursing the Defendant. Memory is a tricky concept, and frequently becomes distorted or incomplete over time. The memory removes information it deems irrelevant, and often distorts reality to fit its own narrative. It is important to understand that a strong theory of defense requires all the information, and that all that information be accurate. To the skilled criminal defense attorney, every detail could form the basis of a different theory of defense[vii]. Thus, scheduling an initial consultation with Los Angeles Criminal Lawyer the moment you are aware you might be facing charges for fraudulent gaming is imperative; the more accurate information you can provide your LACL attorney, the better your chances of a favorable outcome.
The final benefit of contacting Los Angeles Criminal Lawyer as early on in the process as possible is simply the additional time your attorney will have to prepare your case. At LACL we treat each client like they are our only client, which means we dedicate a substantial amount of time to developing a theory of defense for your case. The more time LACL has to prepare, the better the outcome to your case will be. The District Attorney’s Office, as well as the Public Defender’s Office, is inundated with cases to prosecute or defend. The attorneys in these offices are exceptional attorneys, but they simply do not have the same amount of time to prepare a case as a private defense firm dedicated exclusively to representing criminal defendants. An attorney with a thoroughly developed theory of defense enjoys substantial benefits throughout the case. First and foremost, your LACL attorney will have a superior understanding of your case when they approach the District Attorney in an effort to have the charges against you dismissed or reduced. In the event your LACL attorney is unable to persuade the District Attorney to dismiss or reduce the charges against you, your attorney will already have had ample time to prepare the case for trial. Finally, in the unfortunate event you are convicted, a developed theory of defense will allow your LACL attorney to succinctly and persuasively advocate for a lesser sentence.
At Los Angeles Criminal Lawyer, we take pride in providing the highest caliber of customer service to our clients. We understand that simply telling our clients we will do everything we can for them is not enough to allay the fears they understandably have. As such, LACL takes steps to involve their clients in the process, one aspect of that is informing our clients of law they have been accused of violating. The remainder of this article will discuss: (1) A brief background of gaming laws in California, (2) The specific elements of Fraudulent Gaming, (3) An analysis of the specific elements of Fraudulent Gaming, (4) The penalties associated with a conviction for Fraudulent Gaming; and (5) What Los Angeles Criminal Lawyer can do to assist you if you have been accused of, or are under investigation for, Fraudulent Gaming.
The agency that is charged with regulating the gaming industry in California is the Department of Justice Bureau (“DJB”). In 2008 the DJB passed an act designed to ensure the integrity of the gaming industry, as well as protect it from corrupt conduct. A specific part of this Act was to include a risk of jail time for Defendant’s who fraudulently obtained property, with the intent to deprive the true owner of that property the benefit of it, through the use of certain types of games. This section is found in California Penal Code §332. This statute is not designed to outlaw gambling or other conduct, it is designed to penalize individuals who “fraudulently obtain” property, which they obtain by deceiving people into thinking they are getting a “fair chance”, when the game has been made unwinnable through the conduct of the Defendant.
What Are The Elements The Prosecution Must Prove In Order To Obtain A Conviction For Fraudulent Gaming In California?
In order to be convicted of fraudulent gaming, the Prosecution must prove the following three (3) elements beyond a reasonable doubt:
- The Defendant was engaged in conduct under the pretense that it was a fair game or a legitimate prediction of the Victim’s future;
- Utilizing this pretense, the Defendant “fraudulently obtained” property; AND
- The property belonged to the Victim.
It is a fundamental principal of criminal law in the United States that the Prosecution must prove every element of the crime the Defendant has been accused of beyond a reasonable doubt in order to obtain a conviction for that crime. As such, it is important to understand what each element of this crime entails.
What Conduct Constitutes “Conduct Under The Pretense That It Was A Fair Game Or A Legitimate Prediction Of The Future”?
As mentioned throughout this website, a crime consists of two parts: the physical act “actus reas” and the mental act, or intent “mens reas.” The first element of fraudulent gaming established the “actus reas” of the crime. The Defendant must have engaged in conduct under the pretense that the game was fair. For purposes of this element, assuming nobody can predict the future; the act of fortunetelling is enough to satisfy this element[viii]. This section will provide a general overview of conduct that satisfies this element of the crime, as well as specific examples of games that fall under this crime.
In essence, the crime of fraudulent gaming involves a game designed to trick the Victim into parting with their money as a result of a belief that the game was fair. Further, this belief has to be a result of the Defendant’s conduct. In order to trick another person for purposes of this definition, the Defendant must be engaged in a game where the Victim did not have a chance to win as a result of the very nature of the game; that is, the Defendant defrauded the Victim.
In order to defraud the Victim in this context, the Defendant must have utilized words or conduct, which was designed for the purpose of representing a falsehood as a fact.
EXAMPLE: Jamaican Switch
The Jamaican Switch involves three people, the “Catch”, the “Cap”, and the “Victim.” The Catch approaches the Victim and provides a story in which they are a foreigner with substantial assets, which will be confiscated when they return home. Further, they must return home immediately and they want to donate their money to a charity and need the Victim’s help to find a suitable location.
Once this has occurred, the Cap will come to the scene apparently by chance. The Catch will suggest that he give both the Cap and the Victim his money to donate to charity on their behalf, and they can keep some of the money for their services. Next, the Catch seeks assurances that the Cap and Victim will provide the money to the charity, instead of keeping it all for themselves; this is accomplished by asking both parties to withdraw some money and give it to the Catch.
The Cap then withdraws some money from the bank, and the Catch will give the Cap a roll of money to put back in his account. This will be repeated with the Victim, except when the Catch gives them the money to deposit, the Catch and Cap will get in a getaway vehicle and keep the Victim’s money[ix].
EXAMPLE: Loaded Dice
A more common example of a violation of §332 involves dice games, where the Defendant allows a third party (a confederate) to win multiple times while the Victim is observing. This satisfies the fraudulent aspect of the game, as the Defendant is inducing the Victim to believe the game is fair when it is not. Once the Victim starts playing, the Defendant switches “loaded dice” into the game. The purpose of the loaded dice is to keep the Defendant from being able to win.
Whether or not an individual can be convicted under §332 for fortune telling depends on the subjective belief of the person purporting to predict the future. Many people who engage in the act of fortune telling do not actually believe they are predicting the future. This means that they have satisfied the element of engaging in conduct that fraudulently represented that the Defendant was predicting the future. However, if the Defendant truly believed they were predicting the future, then they have not acted fraudulently, and therefore cannot be convicted of fraudulent gaming. Fortune tellers are not typically prosecuted under §332 because of the difficulty of proving the Defendant’s subjective belief.
In addition to utilizing a rigged game, the Defendant must “fraudulently obtain” the Victim’s property. The next element the Prosecution must prove is that the Defendant actually obtained the property.
What Does it Mean to “Fraudulently Obtain” Property?
The second element the Prosecution must prove beyond a reasonable doubt, is that by utilizing the rigged game, the Defendant “fraudulently obtained” property. The term “fraudulently obtained” includes obtaining the money through a game that could not be won by the Victim for one reason or the other. Another mechanism that could serve as the basis for a finding that the Defendant “fraudulently obtained” property is the use of a technique or device, which is not sanctioned by the game, in order to gain an unfair advantage over the Victim. The final element the Prosecution must prove, is that the result of the fraudulent game, the Defendant obtained the Victim’s property.
What Constitutes “Property” For Purposes Of Fraudulent Gaming?
California Penal Code §332 acknowledges that games do not always include cash, or other tangible property (a watch for example). As such, “property” for purposes of §332 includes markers, chips, tokens, or anything else which is assigned a monetary value. Thus, it is no defense to say that the Defendant did not violate §332 when they obtained a poker chip worth $100, because the Defendant can turn that chip into actual cash, and the Victim spent actual cash to obtain the chip.
If the Prosecutor can prove all three elements of fraudulent gaming, the Defendant can be convicted, and the case will proceed to the sentencing phase.
If I Am Convicted Of Fraudulent Gaming, What Penalties Am I Facing?
As mentioned above, the penalty for Fraudulent Gaming is treated the same as Theft by Larceny. The punishment for Theft by Larceny in turn, is defined by what was taken, and the value of the property taken. Theft by Larceny is a “wobbler offense” in California, which means the charge can be brought as either a felony or a misdemeanor; there are a few subtle differences to the penalties associated with theft and other “wobbler offenses.” The first distinction is whether the Theft by Larceny is treated as a petty theft of a grand theft. A petty theft occurs if the value of the property is less than $950. A grand theft occurs if the value of the property is more than $950. Next, unless there was a grand theft of a specified item, the crime will always be charged as a misdemeanor. In order to be charged with Felony Fraudulent Gaming (since the penalties are the same as Theft by Larceny) is if the property that was fraudulently obtained was a firearm. As such, fraudulent gaming does not carry a significant risk of being charged as a felony.
If you are convicted of misdemeanor fraudulent gaming, and the value of the property is less than $950, you will face a fine of up to one-thousand ($1,000) dollars and/or incarceration in county jail for a period of no more than six (6) months.
If you are convicted of misdemeanor fraudulent gaming, and the value of the property is more than $950, you will face incarceration in county jail for a period of no more than one (1) year.
If you are convicted of misdemeanor fraudulent gaming, and the property consists of specified livestock, you will face a fine of up to one-thousand ($1,000) dollars and/or incarceration in county jail for a period not exceeding one (1) year.
If you are convicted of felony fraudulent gaming, and the property you obtained was a firearm, you will face incarceration in California State Prison for a period ranging from sixteen (16) months, two (2) years, or three (3) years.
It is important to understand that these numbers are a maximum, which means that the judge has discretion on how harshly to sentence a Defendant who has been convicted of fraudulent gaming, but cannot sentence them to more than what is allowed by statute. Since the Judge has discretion, it is important to have competent representation at the sentencing phase. Utilizing the handcrafted defense Los Angeles Criminal Lawyer designed for you, your attorney will advocate for a lesser sentence in light of a number of mitigating factors.
If I Have Been Accused Of Fraudulent Gaming, How Can Los Angeles Criminal Lawyer Help Me?
The crime of fraudulent gaming will typically be brought as a misdemeanor, but that does not mean a conviction can’t have a substantial impact on your future. Crimes involving taking property that do not belong to you carry a significant social stigma. A conviction will remain on your criminal background, and will be seen by anyone who conducts a criminal background check on you. Employers frequently conduct background checks in order to screen out applicants for a position with their business. Convictions involving theft, and acts related to theft, are frequently viewed with extreme negativity. Many employers do not trust someone who has been convicted of one of those crimes, and will frequently decline to hire that person.
It is essential that you contact Los Angeles Criminal Lawyer the moment you believe you are under investigation, or as soon as possible after you have been arrested. By contacting LACL early, you provide your attorney the time to build the strongest defense for you. With that defense, LACL can approach the District Attorney and negotiate from an informed position. If the case goes to trial, a well-developed theory of defense will allow your LACL attorney to present a persuasive case to the jury, and raise a number of defenses including:
- The game was not rigged, the Victim was just unlucky
- You did not “fraudulently obtain” property
- The value of the property you obtained was under $950
- If the Defendant is a fortune teller, that they are protected by Freedom of Speech;
If you or a loved one is under investigation for, or has been arrested for, fraudulent gaming it is essential that you contact Los Angeles Criminal Lawyer immediately. Contact us today at 310-502-1314 for a FREE no obligation consultation with one of our skilled attorneys.
i Many crimes are combinations of multiple types of crime; Sexual Battery is both a “Crime Involving Sexual Assault” and a “Crime Against the Person.”
ii This crime is very similar to the crime of Theft by False Pretenses, which can also be found on our Petty Theft page.
iii If the value of the “fraudulently obtained” property is less than $950, the penalties will be similar to those associated with Petty Theft by Larceny, if the value is over $950, then the penalties will mirror those attached to Grand Theft by Larceny.
iv If you are convicted of Fraudulent Gaming, and the value is under $950, you will be charged with a misdemeanor.
v Our “Under Investigation” page is specifically oriented towards what you should do if you are under investigation for a crime. This article will discuss the laws associated with §332, the penalties you might face, and the benefits of contacting Los Angeles Criminal Lawyer immediately.
vi For example, if a Defendant is facing criminal charges for Possession, and the key evidence against the Defendant is the drug the officer found, exclusion of that evidence would completely defeat any charges against the Defendant. This is because the Prosecution could not introduce the drug into evidence, which essentially turn their argument into “take my word for it”; that does not meet the “beyond the reasonable doubt” burden the Prosecution must meet.
vii For example, if a Defendant is charged with Driving Under the Influence, and the stop was based on the officer’s assertion that they observed the Defendant swerving, information about the time of day, weather conditions, what lane the Defendant was in, and how many cars were on the road could be the difference between missing an opportunity to defeat the case before it begins, or having to argue in front of a jury. For example, if it was dusk, pouring rain, the Defendant was in the lane furthest away from the arresting officer, and there were cars passing in between you and the officer, it would be a strong argument to suggest that the officer did not have reasonable suspicion to initiate the traffic stop in the first place. If there was no probable cause to initiate the stop, ten all evidence obtained after the illegal stop will trigger the “Exclusionary Rule”, which would exclude any evidence of the Defendant’s BAC or intoxication – resulting in a dismissal of the case against the Defendant
viii Whether or not a Defendant can be convicted under §332 for fortune telling turns on the mens reas of the person purporting to predict the future.
ix 18 Cal.App.4th 1055