California Telemarketing Fraud: Business and Professions Code 17511.9 BPC
Due to the increase in predatory phone scams, California has implemented strict rules to prevent deceptive sales practices, as outlined in Business and Professions Code 17511.9 BPC.
This statute makes it a crime to use a telephone to carry out a fraudulent business scheme, make intentionally misleading statements, or employ deceitful tactics to sell goods or services.
Because BPC 17511.9 is a "wobbler" offense, individuals or businesses accused of telemarketing fraud can face severe misdemeanor or felony penalties, including substantial fines and state prison time.
Whether an allegation concerns an elaborate tech-support scam or a legitimate sales agent employing overly aggressive and deceptive tactics, navigating California's white-collar crime laws requires a clear understanding of what constitutes a violation and the legal defenses available.
Quick Reference Summary Chart: BPC 17511.9
|
Feature |
Details |
| Statute | California Business & Professions Code 17511.9 BPC |
| Classification | "Wobbler" (Can be charged as a Misdemeanor or a Felony) |
| Misdemeanor Penalties | Up to 1 year in county jail and/or a fine up to $10,000 |
| Felony Penalties | Up to 3 years in state prison and/or a fine up to $10,000 |
| Who Can Be Charged | Sellers, salespersons, independent contractors, third-party agents |
| Core Elements Required | Willful use of deceit/fraud via telephone in connection with an offer or sale |
Key Elements of BPC 17511.9
To secure a conviction for telemarketing fraud, the prosecution must establish three key elements beyond a reasonable doubt:
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Authorized Status: The defendant served as a seller, salesperson, independent contractor, or authorized agent.
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Use of Telephone: The defendant intentionally used a phone to offer, sell,, or promote goods or services.
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Deceptive Intent/Scheme: The defendant intentionally employed a fraudulent scheme, device, artifice, or deceitful practice during the interaction.
Real-World Examples
Example 1 (Misrepresentation of Product Status): An employee at an extended auto warranty company makes cold calls to consumers, falsely claiming that their manufacturer warranty has expired and that their vehicle model is prone to immediate engine failure. Even if the warranty is legitimate, making false statements to persuade a sale is considered telemarketing fraud under BPC 17511.9.
Example 2 (Phony Tech Support Scam): A person contacts individuals using a stolen client list, pretending to be a licensed software technician. They assert that the target's computer has a serious virus and request a $50 fee to install a non-existent remote "bug fix." This is a completely fraudulent scheme carried out over the phone.
Penalties and Sentencing Under BPC 17511.9
In California, Telemarketing fraud is considered a 'wobbler," allowing prosecutors to charge it as either a misdemeanor or a felony. The decision depends on factors like the defendant's criminal background, the victims' financial vulnerability (e.g., the elderly), and the overall monetary value of the scheme.
A critical component of BPC 17511.9 sentencing is that statutory fines are imposed for each unlawful transaction. In large-scale operations with multiple victims, these financial penalties can accumulate drastically.
Misdemeanor Penalties
When an offense is prosecuted as a misdemeanor, the maximum statutory penalties consist of:
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Jail Time: Up to 1 year in a California county jail.
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Fines: A fine of up to $10,000 per unlawful transaction.
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Probation: The court may issue summary (informal) probation instead of immediate incarceration.
Felony Penalties
If the case involves significant monetary losses, complex schemes, or repeated offenses, it could be prosecuted as a felony. Penalties upon conviction include:
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Incarceration: A prison sentence in the state correctional system typically ranges from 16 months to 3 years.
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Fines: A penalty of up to $10,000 for each unlawful transaction.
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Probation: The court might impose formal (felony) probation, requiring close oversight by a probation officer.
Sentence Enhancements and Restitution
In addition to prison sentences and fines, those convicted of telemarketing fraud often encounter extra financial penalties and administrative mandates.
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Victim Restitution: Convicted individuals are often mandated to pay full restitution to victims, compensating for any financial losses resulting from the deceptive scheme.
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Asset Forfeiture: In large-scale operations, law enforcement authorities can confiscate assets, equipment, and funds that are identified as the proceeds of illegal activities.
Legal Defenses against Telemarketing Fraud Charges
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Lack of Intent / Good Faith Belief: Telemarketing fraud involves intentionally trying to deceive. If a salesperson honestly believed their information was correct and truthful, they do not have the specific intent necessary for conviction.
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No Active Solicitation or Sale: The statute does not apply if the call was made for a purpose other than sales, like market research, customer satisfaction surveys, or data collection.
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Aggressive Sales vs. Deception: High-pressure sales tactics, although forceful, do not violate BPC 17511.9 unless they involve actual misrepresentation, lies, or fraudulent schemes.
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Statutory Status Misidentification: The defense may claim that the accused does not meet the legal criteria for a seller, salesperson, or designated agent as outlined by the relevant statute.
Related Laws in California
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Business and Professions Code 17500 BPC (False Advertising): It is now a misdemeanor to intentionally provide false or misleading information to consumers to promote products or services.
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Penal Code 653(m) PC (Annoying or Harassing Phone Calls): Covers actions such as making calls or sending messages aimed at annoying, abusing, or harassing someone.
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Penal Code 487 PC (Grand Theft): Can be combined with telemarketing fraud charges if the fraudulent scheme leads to the theft of property, labor, or money exceeding $950.
Frequently Asked Questions (FAQs)
What makes telemarketing fraud a "wobbler" in California?
A "wobbler" is a crime that prosecutors may charge as either a misdemeanor or a felony. The choice largely depends on the total financial loss to victims, the complexity of the scheme, if vulnerable groups such as the elderly were targeted, and the defendant's criminal history.
Can an employee be charged under BPC 17511.9 if they were just following company scripts?
Yes. Individual salespersons, independent contractors, and agents can be criminally liable if they intentionally participate in a fraudulent scheme or knowingly make false statements, even if the company provided the script.
What is the maximum fine for a telemarketing fraud conviction?
According to BPC 17511.9, individuals convicted of either a misdemeanor or a felony can be fined up to $10,000 for each offense.
Does BPC 17511.9 apply to automated robocalls or text messages?
The statute explicitly criminalizes using a telephone to carry out a fraudulent scheme or deception. It also includes automated voice messages or text scams aimed at tricking consumers into losing money or sensitive data.
Can a defense attorney prevent charges from being filed?
Yes. Defense counsel can use pre-filing intervention to share mitigating evidence or point out investigation gaps to the prosecutor before formal charges are filed, which may lead to a "DA reject."
Consult a California Criminal Defense Attorney
If you or your business face an investigation or formal charges for telemarketing fraud under BPC 17511.9, obtaining early legal help is crucial.
White-collar convictions can lead to severe long-term consequences, including prison sentences, substantial financial penalties, and a permanent criminal record that could ruin future job prospects.
An experienced criminal defense attorney at Esfandi Law Group can examine your case details, safeguard your constitutional rights during police interviews, and develop a strategic defense to contest the prosecution's evidence.
Pre-Filing Intervention and Defense Strategies
In many instances, retaining counsel during the investigative phase—before formal charges are filed—allows your defense team to initiate a pre-filing intervention.
By submitting mitigating evidence or highlighting weaknesses in the prosecution's case early, your attorney might convince the district attorney to dismiss the case entirely, leading to a "DA reject" without you needing to appear in court.
Schedule your free consultation at (310) 274-6529 or use the contact form.