Gambling is a popular activity in California and other 47 states. Many events unfold while playing or gaming together, with some players winning genuinely and others manipulating the game’s outcome. Sadly, many gamers have won vast amounts of money through fraud, which led to the 2008 Act, intended to promote integrity and protect the gambling industry from illegal and unethical deals.
California PEN 332 does not criminalize gambling but the act of fraudulently obtaining another person’s money through gambling. Gaming fraud is a severe crime, and you can face the charges even when you know your win was legitimate. If you face gambling fraud charges in Riverside, CA, the Riverside Criminal Defense Attorney Law Firm is ready to represent you in court and prove your innocence or have the charges dismissed.
Definition of Gambling or Gaming in California
Gambling or gaming refers to participating or consenting to a gaming, betting, or lottery activity. Also, gaming entails activities like lotteries, card games, roulette craps, casinos, and sports wagers.
Gambling has several definitions depending on your state. Still, a common element is that you bet or risk a valuable item with the hope of winning even though you have zero control of the results. The outcome depends on a gamble, and all the participants aim to win something. Here, genuine transactions do not exist. It is not like trading where you buy or sell products and services.
When you talk of gaming, many Californians associate it with placing a bet or stakes with the hope of winning money or property. Nonetheless, courts have determined that gaming happens when you put a wager using a valuable item. Regardless of its worth in the gaming industry, any worthwhile item is considered a consideration.
The Chance Aspect
California laws prohibit games, stakes, or wagers partly or entirely dependent on a few elements or aspects of chance. Games whose outcome depends on skill are not considered under the gambling law. Therefore, you are not at risk of gaming fraud charges when you participate and win a prize in a car race, horserace, or shooting competition because these depend on skills.
Nonetheless, gambling laws do not regulate gambling activities that utilize skills does not mean these games are not entirely controlled. There are guidelines and restrictions to ensure these games adhere to the law. The main difference between a gamble game and a skill game is the chance element and its effect on the results. When the outcome is primarily based on chance, you will be gambling when you bet on the game.
What if a gambling activity encompasses both chance and skill elements? In these situations, the game will be considered one of chance and not skill, mainly when only a minority group of players keep winning. When considering these, the court thinks about the chances of a typical player to win the game. If an average participant has a probability of winning the game, it is considered a game of chance.
Chances of Winning a Valuable Item
If there are zero chances of winning a valuable item in a game, you are not gaming. An activity only qualifies as gaming when there is a likelihood of winning a worthy item after a wager. The valuable item includes property, money, or a chance to continue gaming.
Therefore, you can face fraud charges even without a wager. The crucial element of the case is that you were participating in a game with other individuals with bets and have a likelihood of winning something. The prosecution needs to prove gambling fraud by presenting evidence that you had an equal probability of winning a valuable item.
Players and the business running the gaming activity make profits. Players break even when they place wagers and win games. Companies make profits by apportioning themselves a particular amount of the betting fee by players. Others collect entry fees in gambling halls making profits. Many states encourage social gambling where profits are not the goal and criminalize gaming businesses. So, if you operate a casino event and charge entry fees to the hall, you will be committing illegal gaming. However, you will not violate the gambling laws when you organize the party and fail to charge any fees or only make profits from the game outcomes.
Distinction Between illegal and Legal Gaming
Some Californians consider gaming a vice that corrupts society, while others consider it a healthy entertainment activity. Because of these contrasting views, California gaming statutes help differentiate between lawful and unlawful gaming.
California only recognizes gambling activities like casinos, betting, gaming machines, arcades, and lotteries. Most of the games like the state lottery are used to generate revenue for the state or act as economic stimulus.
On the other hand, the state prohibits gambling activities like roulette, rondo, rogue, tan and fan-tan, or percentage games played using dice or cards.
The law regulates even legal gambling activities like horse racing. Even if you are allowed to play, particular conduct during the game will be considered illegal and result in gambling fraud charges.
California Legal Gambling Activities
California recognizes or controls particular types of gambling. These are:
Also called parimutuel horse wagering, mutual betting is a form of gaming that creates a pool of players who play against each other. The house pools together the players’ stakes, deduct taxes and management fees, and the remaining amount is what comprises the prize. However, the state only recognizes this game when it comes to horse racing.
The prize usually depends on the stakes pooled by the players. The more the stakes by players, the higher the reward. Nonetheless, with many forms of gaming being introduced in the market, mutual gaming popularity has declined gradually as many players opt for simpler games than horse racing.
The state manages the California lottery, consisting of games like Mega Millions and SuperLotto Plus. Gambling activities are regulated and governed by the state.
Another legal gaming in California is charitable gambling. The only game played in this form of gambling is bingo, and the money generated from the gaming goes towards donations or to benefit non-profit organizations. Nevertheless, because the proceeds go towards funding non-profit organizations does not mean that the same organizations operate these games. Despite this gambling activity generating money for donations and charitable organizations, it is subject to criticism because it is the least controlled, thus being exposed to theft cases, accounting irregularities, cheating, and fraud.
Many people confuse card clubs for casinos. Nevertheless, the two are different because, in casinos, players bet against the house while card clubs generate profits by charging players a participation fee. Also, players bet against each other and not the house.
An Indian casino consists of games like slots, blackjack, and poker. Most of these casinos are located in Indian lands and usually resemble the Las Vegas casinos.
Overview of Gambling Fraud
As per PEN 332, gambling or gaming fraud involves fraudulently acquiring property or money from another person through any of the following means:
- Gambling or betting
- Pretension of seeing fortunes
- Card games or other tricks in gaming activities like the three-card monte
However, this does not mean gambling is illegal in California. Bookmarking and gambling are legal in California but are regulated by different statutes under PEN 330 and 337. Gambling becomes illegal when you use stacked card decks, card tricks, or other gaming schemes that promise you a sure bet only to be scammed.
The legal definition of gaming fraud under PC 332 is the fraudulent procuring of someone’s property or money through gambling and games like three-card trick or monte, fortune-telling, or betting where a win is guaranteed.
For purposes of this statute, fraudulent means acting dishonestly, deceitfully, or devoid of moral turpitude. Besides, when you cheat or fail to abide by the guidelines of the gambling activity, you will be subject to gaming fraud counts. However, you are innocent of gambling fraud counts when you win the game legitimately without cheating, tricks, or through sleight of hands.
You can only be guilty of gaming fraud when you win money, valuable items, or property by acting in bad faith while gambling. Property, in this case, refers to any item of significant worth a player obtains from fraudulent gaming like poker chips or money tokens.
From this legal definition, it is evident that anyone can face PEN 332 violation charges, including players, sports players, and the people operating the gaming business. Game manipulation is a common practice in gaming halls, and often the fraudulent players and operators pocket hefty wins or profits when they participate.
Pretentious Fortune Telling and Free Speech
In addition to criminalizing illegal gambling, California statutes discourage fraudulent or pretentious fortune-telling. The practice falls under the betting and card games category. Unfortunately, prosecuting these cases is usually a difficult task because, technically, fortune-telling is deemed as free speech, thus protected by the first amendment. So, it becomes difficult to charge a person for this offense because they have a right to free speech.
Before a conviction for deceitful fortune-telling, the prosecuting attorney must prove several elements. The first element the prosecuting team considers is religion. When there is evidence to show that you adhere to religious beliefs of astrology or foreseeing fortune and obtain many from someone else after fortune telling their future, the court will not find you guilty of gambling. The law considers the astrologer to be fortune-telling for fun and therefore profiting from it.
Also, as a fortune teller, the court will not deem you guilty of a crime if you have a disclaimer sign informing your clients that the foreseeing is for fun.
Furthermore, you will be guilty of gambling fraud if you have no faith in your foreseeing or there is no evidence to link your predictions with your religious beliefs. For instance, an astrologer who does not believe in their predictions will face gaming fraud charges because they are not doing it for entertainment but to defraud unwary clients. In these circumstances, you will be criminally liable as a fortune teller.
However, before you are convicted, the prosecutor must prove the following elements:
- Someone else lost their money or an item of significant value through gambling activities
- You had plans of procuring money fraudulently through a legal gambling activity
- You are a fortune teller or astrologer who makes money foreseeing fortunes for others, but you do not believe in these fortunes.
Note that fortune-telling was practiced years back as people sought to know what lay ahead in their futures. Many people are willing to pay significant amounts of money to understand what is ahead of them to face life with more confidence. Even in today’s world, astrologers exist, and their services are in demand.
Nonetheless, there is a need to regulate the psychic industry due to increased psychic scam incidents in California and nationwide. Some cities in the state like Oakland do not control these services, but others have ordinances that prohibit monetization of fortune-telling.
California Penalties for Gambling Fraud
Gaming fraud charges attract the same penalties as petty and grand theft. The punishment depends on the monetary value of the prize they receive after committing the crime. When you obtain a reward whose value is at least $950, the offense is a wobbler, and you will face misdemeanor or felony charges and penalties. The type of charge you face depends on the prosecuting attorney’s discretion.
If you obtain a prize of no more than $950 after using fraud or tricks in gambling, you risk misdemeanor counts and penalties.
When charged and convicted for felony gambling fraud, you will face jail incarceration for sixteen, twenty-four, or thirty-six months and undertake a realignment program while in imprisonment. The program will be helpful when your felony conviction is considered a less severe offense, thus eligible for realignment from the state prison to a jail. The realignment program is for less severe felonies that do not involve defrauding hefty sums of money. With realignment, the judge can sentence you to a maximum jail term provided in the law or sentence you to a fraction of the jail term, then release you from custody for the remainder of the term but under supervision.
Besides, the court will sentence you to formal or felony probation, and while on probation, you will be required to adhere to all court-imposed conditions.
Similarly, if you are a first-time offender, you must pay a monetary court fine of no more than $5,000. A second or subsequent offense sentence will require you to part with $10,000 in financial court fines.
While on probation, you must adhere to the following requirements:
- Meet regularly with your probation officer, usually once a month, based on the judge’s orders
- Payment of victim restitution fee in exchange for the formal probation
- Participate in individual or group therapy
- Participate in community labor or services
- Comply to a peace officer’s search on your property even without a search warrant
- Abide by court’s instructions to stay away or not to harass the victim
- Spend some time in jail if you are a second or subsequent offender
- Avoid any infringement of the law while on probation
- Gaming addiction program if you are addicted to gambling
Note that when you do not comply with the probation terms, it will be revoked, and you will go back to jail or prison to serve the initial sentence.
When you are accused and convicted of misdemeanor gaming fraud, the penalties include:
- A jail sentence of no more than six months for a prize worth less than $950
- Jail incarceration for no more than twelve months for money or item worth over $950
- Misdemeanor or informal probation
- A monetary court fine of no more than $1,000
Gambling and Crime
Gambling and casinos go hand in hand with crime in movies or real-life situations. Most people link gambling activities with the illicit world because many use these platforms to defraud others of their hard-earned money or launder money. Cash generated from illegal activities like drug crimes, kidnapping, or theft is usually moved around through gaming to make it impossible for the authorities to know its source. Criminals see casinos as a way of cleaning their money to avoid detection from law enforcement, which explains why there are strict laws to regulate the gambling industry.
Additionally, the increase in crime has been associated with gambling addiction. Players addicted to gambling will engage in extortion, theft, misappropriation, and drug crimes to generate money to fund their gaming habit.
Lastly, gaming awakens a particular excitement in individuals, which sometimes leads them to crime. Stealing or certain criminal activities arouse the same thrill as gambling, which shows why the practice is associated with crime.
Defense for Gambling Fraud
For many people, obtaining money fraudulently by cheating or using tricks during gambling does not seem like a dangerous crime. Nevertheless, many people are shocked to learn the severe consequences of gaming fraud, like prison incarceration when they face charges. Therefore, you should not hesitate to contact the Riverside Criminal Defense Attorney Law Firm when you are accused of gaming fraud. Our attorneys have several defense strategies they can mount to obtain learner sentences or have the charges dropped entirely.
One of the primary defenses you can use is arguing that you never intended to defraud the alleged victim. Like other fraud cases, the prosecutor must demonstrate the existence of fraudulent intent beyond a reasonable doubt. If the prosecuting team cannot prove with sufficient evidence that you had a fraudulent purpose, you will not be convicted of gaming fraud.
When charged with gambling fraud because of fortune-telling, you can defend against the charges by arguing that the US Constitution’s First Amendment protects your rights to free speech. The amendment further provides for freedom of religion, assembly, and expression. Therefore, you should not be restricted or discriminated against because of your religious practices or beliefs, including fortune-telling.
Also, when you were arrested for holding legal games like charity raffles, bingo, or poker, you can assert that you have the activity as a charity event, and the proceeds were to be channeled to donations and other charitable activities.
When you are arrested for gaming fraud in an undercover sting operation, you can argue that the police lured you into committing a crime, which amounts to entrapment. The defense will be valid if the officers conducting the operation harassed, threatened, flattered, or pressured you into cheating in a game.
Moreover, you can argue that you informed your clients that your astrology services were purely entertainment or fun. However, this defense will not stand if you pocket massive sums of money from the practice or do not believe in your predictions.
Furthermore, you can claim that you were arrested in an illegal police raid. This defense works if you were apprehended while conducting illegal gaming on your property. Still, the arresting officers never followed the procedures provided by the constitution, including having a valid search or arrest warrant. If the officers lacked a valid search warrant, your attorney could use this defense to have your property returned and the charges dismissed.
Gaming laws in California are complex. Sometimes, you cannot differentiate between illegal and legal gambling, meaning you could face charges even when you know your win is legitimate. Even innocent individuals can be convicted for this crime. Immediately after learning about the allegations, you should reach out to an attorney to protect your rights and freedom. The attorney will explain the differences between illegal and legal gaming and guide you through the case.
Find an Experienced Defense Attorney Near Me
If you have been accused or charged with gambling fraud even when you never intended to defraud anyone, you need to speak to a criminal attorney. A legal expert will discuss the charges and help you understand what is at stake. At the Riverside Criminal Defense Attorney Law Firm, we can assist you in contesting the charges in Riverside and avoid the severe consequences of a conviction. Call us today at 951-946-6366 to talk to our attorneys.