Generally, gambling is not prohibited. However, gambling fraud specifically deals with instances where individuals fraudulently obtain another person’s money through trickery, gambling, pretentious fortune telling, or betting. All these avenues are deceptive since the player's chances of winning are close to none. Gambling fraud is a crime under Penal Code 332. However, it is worth noting that this law does not consider gambling or bookmarking an offense. It targets explicitly deceptive practices like games that deceive players with guaranteed wins or rigged decks.
Convictions for PC 332 violations result in significant penalties. You stand a better chance of avoiding these penalties by hiring legal representation. Count on the California Criminal Lawyer Group to aid in fighting gambling fraud charges should you be charged in Anaheim.
Gambling Fraud as Detailed Under Penal Code 332
Penal Code 332 makes it a crime to obtain money through gaming fraud. This statute makes it a crime to obtain another person's money, property, or money through card games, betting, or fortune-telling. This law does not make gambling or bookmaking illegal. However, it criminalizes schemes to deceive individuals into believing they are making a safe bet or are sure to win, which is common in stacked decks or card tricks.
Engaging in the following activities will result in prosecution for a PC 332 violation:
- Card trick games — Three card monte is the typical card trick game used by con artists to scam unsuspecting individuals out of money. The dealer typically uses three cards, two black, and one red card. He/she then asks the player to keep track of the red card as it is shuffled and moved around with the other two cards. The dealer then asks the player to bet on which card is the red card. Unknown to the victim (player), the dealer is skilled at sleight of hand and will often switch the cards or use other deceptive tactics to ensure that the player never guesses correctly.
In most cases, the dealer works with accomplices. They distract the player and create an atmosphere of confusion and chaos. This card game has resulted in many players suffering significant losses.
- Intentionally telling false fortunes — The pretense of fortune-telling involves pretending to have supernatural or psychic abilities to predict the outcome of gambling games. Most fraudsters are common in poker or blackjack games. Dealers or other players claim to be able to predict the cards that will be dealt or the game's outcome. The fraudsters use a variety of tactics to create the illusion of psychic ability. These include reading body language, making lucky guesses, or using cold reading techniques. They could also use props, like crystal balls or tarot cards, to enhance the illusion further. The fraudsters aim to convince other players to place large bets based on the fraudster's supposed predictions. This then leads to larger payouts for the fraudster when they win.
- Sleight-of-hand games — This game involves the use of deception and manipulation to cheat or defraud other players in gambling games. They often require a high skill level to pull off the trick successfully, like shuffling and dealing cards quickly and accurately. There are several sleight-of-hand games. One particular one is “marked cards.” In this game, a player marks the cards in some way, for example, by bending or scratching them, to identify the card later. This gives the player an undue advantage over other players.
- Betting on hands or sides of any game or play — This fraud involves placing a bet on the outcome of a specific play or game and is common in big games, including football, basketball, and baseball. Bettors could place bets on the result of a particular game or individual plays within the game. In other instances, betting on sides or hands can also refer to gambling games where players bet on the outcome of each hand or round, like poker or blackjack.
- Any other technique or device that aims to trick targets. This can include various tactics, including using hidden cameras or microphones to gain an advantage, using fake or loaded dice, or employing distraction techniques to confuse other players. Other methods that employ trickery include using marked chips to cheat the casino, using a rigged roulette wheel, or using magnets to manipulate the outcome of a game.
Is fortune-telling illegal?
Fortune-telling is not explicitly illegal. If you operate as a "genuine" fortuneteller and act according to your belief system, your activity is protected free speech. It is not considered illegal. However, if you pretend to tell fortunes and accept payment for it without providing a disclaimer, for example, “for entertainment purposes only," this constitutes the "pretense of fortune-telling." This act is a crime under PC 332 because the victim believes you are genuine.
Elements of Gambling Fraud
Prosecutors must prove the following to secure your conviction for gambling fraud:
- You intended to defraud or cheat another person in three-card monte or a gambling game or activity.
- You used deception or some form of false pretense to obtain money, property, or something of value from the victim.
- The victim reasonably relied on your false pretense or deception in placing a bet or participating in the gambling activity;
- Your false pretense or deception caused the victim to lose money, property, or something of value; and
- You acted willfully and intentionally.
Defenses You Can Raise in a Gambling Fraud Case
Through your attorney, you can raise several defenses depending on the facts of your case. Your attorney will choose a defense strategy that will likely result in the best legal outcome: reduced charges, if not an acquittal.
You Lacked the Intent to Defraud
A lack of intent defense involves arguing that you did not intend to defraud or cheat the victim. The intent is a critical element that the prosecution must prove beyond a reasonable doubt in a gambling fraud case. Defense attorneys employ several methods to demonstrate a lack of intent to defraud a victim in a gambling fraud case, namely:
- Lack of knowledge or awareness — Your attorney could assert that you did not know your actions constituted gambling fraud. This can happen if you believed the game was legal or acted thinking you did not break any laws.
- Good faith belief — It is also possible that you had a good faith belief that you could win the game or activity, for example, believing that you had a winning strategy. Alternatively, you could have believed that you had a particular skill in the game.
- Lack of benefit — Your attorney could argue that you did not benefit from the fraud or did not intend to benefit from it. For example, you could have returned the money you won or did not keep any winnings.
- Mistake or misunderstanding — You could also have made a mistake or had a misunderstanding about the game or activity. This is possible if you misunderstood the rules or thought you were playing a different game.
Defense attorneys rely on witness testimonies, including those from expert witnesses, and documentation that proves the lack of intent.
You Did Not Use False Pretenses
This defense applies when you do not make false statements or use tricks or devices to deceive the victim into making a bet or participating in a gambling game or activity. If the prosecution alleges that you operated an illegal gambling operation, your attorney will assert that you did not misrepresent the odds or use false advertising to attract customers.
Part of the defense attorney’s assessment of the case is examining the facts and circumstances to determine what happened and how your actions could be interpreted. For example, your attorney could present eyewitness testimony, surveillance footage, or expert testimony to show that you did not cheat or use deceptive techniques during a gambling game. He/she could also argue that the victim knew the risks of participating in the game. However, the victim consciously decided to take that risk.
Defense attorneys can also present evidence demonstrating that his/her client did not misrepresent the odds or use any false advertising to attract customers. He/she could also argue that the gambling operation was conducted openly and with the knowledge and consent of the participants.
Lack of Reasonable Reliance
You can also question the victim's reliance on your deceptive acts as a defense. Under this defense, your attorney will demonstrate to the jury that the victim understood the risks of gambling. However, he/she would have participated in the activity regardless of your false statements or actions. This defense is applicable in cases where the alleged victim was an experienced gambler, or he/she fully understood the risks involved in the activity.
Defense attorneys employ several approaches in establishing the alleged victim’s experience, namely:
- An interview with the alleged victim — Attorneys interview the alleged victim in the company of experts to determine the victim’s experience with gambling. Some of the issues of concern to the attorney include how often the alleged victim participated in the activity, their knowledge of the rules and risks of the game, and whether they have been involved in similar situations.
- Witness testimony — The defense attorney could call witnesses who can testify about the victim's experience with gambling. Friends or family members who have played with the victim in the past are some of the typical witnesses.
- Surveillance footage — Attorneys also present video footage, audio recordings, or written documentation showing the victim’s knowledge of the risks involved in the activity
- Reviewing the victim's actions — Defense attorneys also examine the victim's actions during the gambling activity. Actions like whether they continued to participate in the game even though there were indications that the defendant was engaging in fraudulent behavior absolve defendants of blame. These actions are indicative of intentional participation in the activities.
Protected Free Speech
Fortune-telling is not illegal if it is part of the alleged offender's cultural or religious beliefs. The First Amendment guarantees the right to the free exercise of religion. This includes the practice of cultural and religious beliefs.
You can only assert the free speech defense if you did not use fortune-telling to obtain money or property from others by making false claims or representations about the future. A jury would likely find you guilty of a PC 332 violation if you did. The law does not prohibit the practice of fortune-telling itself. It only makes it a crime to engage in fraudulent practices associated with it.
Additionally, fortune-telling is not a crime when it is done for entertainment purposes. However, the fortune teller must not make any false claims or representations aiming to obtain money or property from their targets. You can present evidence of a disclaimer you gave to your visitors that fortune-telling services do not guarantee future events or outcomes. This disclaimer is a legal requirement.
If you engaged in fortune-telling for entertainment, you could assert protected free speech as your defense.
You are a Victim of Entrapment
Law enforcement officers use different methods to entrap individuals in gambling fraud. Some standard techniques include:
- Offering a fraudulent opportunity — The officer could create a scenario where they offer you a chance to make a quick profit through a gambling scheme involving fraud or cheating.
- Providing equipment or supplies — Police officers could provide equipment or supplies necessary for the gambling scheme. This equipment includes marked cards, fake money, or loaded dice.
- Posing as a victim — Officers could pose as a victim willing to participate in a gambling scheme.
- Using coercion or threats — In some cases, police officers threaten to harm defendants or their families if they do not comply.
- Repeated solicitation — The officers could repeatedly solicit you to participate in the gambling scheme until you agree to do so.
Note: Not all the tactics undercover operations officers employ are valid entrapment defenses. The critical factor is whether the officer induced the defendant to commit a crime they were not otherwise predisposed to commit.
Entrapment as a defense only works if you can show that they were induced by law enforcement to commit the crime. You must show that the idea to commit the crime originated with the law enforcement officer. Further, you were not predisposed to commit the crime. Alternatively, you can show that the law enforcement officer used excessive pressure, harassment, fraud, or similar methods to induce the defendant to commit the crime.
Penalties if Convicted of Gambling Fraud
Gambling fraud under Penal Code 332 is a wobbler offense. You can face misdemeanor or felony penalties if convicted of the crime. Whether you will face misdemeanor or felony charges is a decision that rests with the District Attorney. He/she considers the facts of the case and your criminal history to determine what charges you will face.
The penalties are similar to those defendants receive if convicted of petty or grand theft.
You will face misdemeanor gambling fraud charges if the property value or money is less than $950. A conviction will result in the following penalties:
- Up to one year in jail and/or
- A Maximum fine of $1,000.
- Summary or misdemeanor probation instead of a jail sentence.
The offense is a wobbler if the property value or money exceeds $950.
Felony convictions result in the following penalties:
- Up to three years in prison and/or
- A maximum fine of $5,000 for a first offense or a maximum of $10,000 for a second or subsequent offense.
- Formal or felony probation instead of a prison sentence.
Offenses Related to Gambling Fraud
Prosecutors could pursue additional charges or opt for any of the following as an alternative to pursuing a conviction for gambling fraud.
- Illegal gambling – A Penal Code 330 violation.
- Bookmaking, pool-selling, and wagering – A Penal Code 337a violation, and
- Check fraud – A Penal Code 476 violation.
Illegal gambling is any gambling activity not licensed or regulated by the government. These activities include running an unlawful casino or card room, participating in an illegal sports betting operation, or operating an illegal lottery or numbers game.
Under Penal Code 330, you engage in illegal gambling when you are involved in the following activities:
- Operating a "banking" or "percentage" game — Refers to games in which the house takes a percentage of the bets placed or acts as a bank against which players compete.
- Using a device to aid in predicting the outcome of a game — Includes any device, like a computer, that is used to assist in predicting the outcome of a game of chance.
- Engaging in bookmaking — Bookmarking involves betting on sporting events or other contests, often associated with organized crime.
- Maintaining a gambling place — Refers to any location where illegal gambling activity is conducted or permitted, such as an unlawful casino or card room.
- Participating in an illegal gambling game — Includes playing or betting in any unlawful gambling activity.
Elements of the Crime
A jury will only return a guilty verdict if prosecutors prove the following elements:
- You knowingly engaged in one or more specific activities prohibited by law.
- You did one or more of the following activities:
- Used a device to aid in predicting the outcome of a game
- Engaged in bookmaking
- Maintained a gambling place
- Participated in an illegal gambling game
Note: Knowing means understanding the activity to be illegal but still choosing to participate in it. Therefore, the prosecution must prove that you had knowledge of the specific laws related to gambling and that you intended to violate those laws.
Penalties for Illegal Gambling
Illegal gambling is a misdemeanor violation. If convicted, you will face the following penalties:
- Up to six months in jail and/or
- a fine not exceeding $1,000.
- Summary probation instead of jail.
Bookmaking, Pool-selling, and Wagering
Engaging in bookmaking, pool-selling, or wagering is a crime under Penal Code 337a. You are only guilty if the state proves that you:
- Placed, made, or received a bet or wager on the result of a contest or game of skill or chance or the performance of a person in such a contest or game.
- Did so with the intent to receive money or property if they won the bet or wager.
- Acted knowingly and willingly.
Penalties if convicted: The penalties for violating Penal Code section 337a vary depending on the circumstances of the case.
You will face misdemeanor charges for a first offense, punishable by:
- Up to six months in jail and
- A maximum fine of $1,000.
You could face felony charges for subsequent offenses, a first offense involving large sums of money, or an organized gambling operation. The offense is punishable by:
- Up to three years in prison and
- A fine of up to $5,000.
Penal Code 476, also known as check fraud, occurs when a person knowingly writes or passes a check with insufficient funds or with the intent to defraud. The following are the elements that the prosecution must prove to obtain a conviction under PC 476:
- You wrote, made, or passed a check,
- You knew there were insufficient funds to cover the check or acted with the intent to defraud,
- The check was subsequently presented for payment, and
- The check was not paid because of insufficient funds or a closed account.
If convicted of check fraud under PC 476, the penalties can vary depending on the check amount or checks involved. If the check is less than $950, it is generally charged as a misdemeanor. You will face the following:
- Up to one year in jail and/or
- A fine of up to $1,000.
If the amount of the check is $950 or more, the offense could be charged as a felony, which can result in the following:
- A sentence of up to three years in state prison and/or
- A fine of up to $10,000.
Find a Criminal Defense Attorney Near Me
Facing gambling fraud charges is not easy. The social stigma the charges impose significantly affects many. Further convictions aggravate the situation. Defendants could spend time in jail or prison and encounter difficulty returning to a normal life post-conviction. Your best chance at avoiding these negative consequences is by enlisting the services of an experienced Anaheim criminal defense attorney. At California Criminal Lawyer Group, we will assess your case and guide you on the legal options likely to result in the best legal outcome. Contact us today at 714-766-0965 for a free case evaluation.