1906. Forging and Passing or Attempting to Pass: Two Theories in One Count

The defendant is charged [in Count ______] with forgery of [a/an] <insert type[s] of document[s] from Pen. Code, § 470(d)>.

The defendant is being prosecuted for forgery under two theories: (1) that the defendant forged the document; and (2) that the defendant (passed[,]/ used[,]/ [or] (attempted/ [or] offered) to use) the forged document.

Each theory of forgery has different requirements, and I have instructed you on both.

You may not find the defendant guilty of forgery unless all of you agree that the People have proved that the defendant committed forgery under at least one theory. But all of you do not have to agree on the same theory.

Bench Notes

Instructional Duty

This instruction is to be given when the prosecution pursues the two theories of forgery of a single document in one count. (See People v. Sutherland (1993) 17 Cal.App.4th 602, 618-619 [21 Cal.Rptr.2d 752].)

Authority

Unanimity on Theory Not Required. People v. Sutherland (1993) 17 Cal.App.4th 602, 618-619 [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).

(New January 2006)