1905. Forgery by Passing or Attempting to Use Forged Document

The defendant is charged [in Count ______] with forgery committed by (passing[,]/ [or] using[,]/ [or] (attempting/ [or] offering) to use) a forged document.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant (passed[,]/ [or] used[,]/ [or] (attempted/ [or] offered) to use) [a/an] (false[,]/ [or] altered[,]/ [or] forged[,]/ [or] counterfeited) <insert type[s] of document[s] from Pen. Code, § 470(d)>;

2. The defendant knew that the <insert type[s] of document[s] from Pen. Code, § 470(d)>(was/were) (false[,]/ altered[,]/ [or] forged[,]/ [or] counterfeited);

AND

3. When the defendant (passed[,]/ [or] used[,]/ [or] (attempted/ [or] offered) to use) the <insert type[s] of document[s] from Pen. Code, § 470(d)>, (he/she) intended that (it/they) be accepted as genuine and (he/she) intended to defraud.

Someone intends to defraud if he or she intends to deceive another person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/ [or] something [else] of value), or to cause damage to, a legal, financial, or property right.

[For the purpose of this instruction, a person includes (a governmental agency/a corporation/a business/an association/the body politic).]

[It is not necessary that anyone actually be defrauded or actually suffer a financial, legal, or property loss as a result of the defendant's acts.]

A person (passes[,]/ [or] uses[,]/ [or] (attempts/ [or] offers) to use) a document if he or she represents to someone that the document is genuine. The representation may be made by words or conduct and may be either direct or indirect.

[A person alters a document if he or she adds to, erases, or changes a part of the document that affects a legal, financial, or property right.]

[The People allege that the defendant (passed[,]/ [or] used[,]/ [or] (attempted/ [or] offered) to use) the following documents: <insert description of each document when multiple items alleged>. You may not find the defendant guilty unless you all agree that the People have proved that the defendant (passed[,]/ [or] used[,]/ [or] (attempted/ [or] offered) to use) at least one document that was (false[,]/ [or] altered[,]/ [or] forged[,]/ [or] counterfeited) and you all agree on which document (he/she) (passed[,]/ [or] used[,]/ [or] (attempted/ [or] offered) to use).]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the crime.

If the prosecution alleges under a single count that the defendant passed or attempted to use multiple forged documents, the court has a sua sponte duty to instruct on unanimity. (See People v. Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 CalRptr.2d 752].) Give the last bracketed paragraph, inserting the items alleged. (See also Bench Notes to CALCRIM No. 3500, Unanimity, discussing when instruction on unanimity is and is not required.)

People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127 Cal.Rptr.2d 770], defines the term "utter" as to "use" or "attempt to use" an instrument. The committee has omitted the unfamiliar term "utter" in favor of the more familiar terms "use" and "attempt to use."

Give the bracketed sentence that begins with "For the purpose of this instruction" if the evidence shows an intent to defraud an entity or association rather than a natural person. (Pen. Code, § 8.)

Give the bracketed sentence that begins with "It is not necessary" if the evidence shows that the defendant did not succeed in defrauding anyone. (People v. Morgan (1956) 140 Cal.App.2d 796, 801 [296 P.2d 75].)

If the prosecution also alleges that the defendant forged the same document, give CALCRIM No. 1906, Forging and Passing or Attempting to Pass: Two Theories in One Count.

Authority

Elements. Pen. Code, § 470(d).

Intent to Defraud. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127 Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38 Cal.Rptr.2d 176].

Intent to Defraud Entity. Pen. Code, § 8.

Pass or Attempt to Use Defined. People v. Tomlinson (1868) 35 Cal. 503, 509; People v. Jackson (1979) 92 Cal.App.3d 556, 561 [155 Cal.Rptr. 89], overruled on other grounds in People v. Anderson (1987) 43 Cal.3d 1104, 1122 [240 Cal.Rptr.2d 585, 742 P.2d 1306].

Unanimity Instruction If Multiple Documents. People v. Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Property, § 169.

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes Against Property, § 143.04[1], [2] (Matthew Bender).

Commentary

The committee was unable to locate any authority for what constitutes "offering to pass" a forged document. In People v. Compton (1899) 123 Cal. 403, 409-411 [56 P. 44], the court held that attempting to pass a forged document requires, at a minimum, that the defendant present the document to an innocent party, with an assertion that the document is genuine. (Ibid.; see also People v. Fork (1965) 233 Cal.App.2d 725, 730- 731 [43 Cal.Rptr. 804] [discussing sufficiency of the evidence for attempting to pass].) In light of this holding, it is unclear if any act less than this would be sufficient for a conviction for "offering to pass." The committee urges caution when considering whether to instruct the jury with the phrase "offering to pass."

(New January 2006)