Fraud and Embezzlement
Most fraud or embezzlement cases are prosecuted under Penal Code §487, grand theft, 470 and 476, making or passing bad checks, or PC § 550, filing a false insurance claim. Also included in this category is identity theft prosecuted under Penal Code §530 and 530.7, typically involving the unauthorized use of credit or debit cards.
Normally, once a fraud or embezzlement is discovered, the “paper trail” left behind often makes these cases easy to prove. Thus the defense usually is concentrated on mitigating the consequences. Factors such as the extent of the loss, emotional or physical health issues, severe financial stress and the ability to make all or partial restitution can be significant factors in mitigating the possible sentence.
Cases alleging false or fraudulent claims made to an insurance company may carry additional penalties under Penal Code §550 et. seq. Penal Code §550(a) has ten (10) subsections that cover virtually every common type of insurance fraud. Whether it be auto insurance, health insurance, home owners insurance or workers compensation insurance. Penal Code §550 prescribes not only the crime but also its punishment. Under Penal Code §550 (c)(1), a violation of subsection (a) is what is known as a non-alternative felony carrying a term of 2, 3 or 5 years in prison for each count. This does not mean a conviction under this section requires prison time, as the judge may grant probation and limit the time to county jail, or the work furlough program or even in the appropriate case, no time in jail at all. What it does mean is the charge itself cannot be made into a misdemeanor by the judge, even if he believes that is the appropriate result. The sole discretion for offering a misdemeanor is an insurance fraud prosecution under Penal Code §550(a) lies with the District Attorney’s Office. This is the case even when the insurance company has suffered little or no loss. This stands in stark contrast to other fraud or embezzlement charges where the alleged victim is an individual, not a corporation, as the defendant is eligible for a misdemeanor under Penal Code §17(b). Furthermore, the law provides for payment of the insurance companies investigation costs as part of any restitution order and the prosecution of insurance fraud is assigned to a special unit of the District Attorney’s Office.
Defending and presenting alternative sentencing arguments to both the court and the District Attorneys Office in fraud cases is critical to the successful resolution of any fraud or embezzlement matter, and in particular those cases that involve the politically charged atmosphere of insurance fraud. Strategies for avoiding the sentencing requirements for a violation of Penal Code §550(a) are developed from the first moment you meet with us. A firm defense and quick remedial action can be the difference between a felony and a misdemeanor, and jail time or none at all.
