1956. Use of Forged, etc., Access Card

The defendant is charged [in Count ______] with using (an access card/ [or] account information for an access card) that had [been] (altered[,]/ [or] forged[,]/ [or] expired[,]/ [or] revoked[,]/ [or] acquired or retained without permission of the cardholder or card issuer[,]/ [or] <insert other description of card obtained or retained in violation of Pen. Code, §§ 484e or 484f>).

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

1. The defendant used (an access card/ [or] account information for an access card) that had [been] (altered[,]/ [or] forged[,]/ [or] expired[,]/ [or] revoked[,]/ [or] acquired or retained without permission of the cardholder or card issuer[,]/ [or] <insert other description of card obtained or retained in violation of Pen. Code, §§ 484e or 484f>);

2. The defendant knew that the (access card/ [or] account information) had [been] (altered[,]/ [or] forged[,]/ [or] expired[,]/ [or] revoked[,]/ [or] acquired or retained without permission of the cardholder or card issuer[,]/ [or] <insert other description of card obtained or retained in violation of Pen. Code, §§ 484e or 484f>);

3. When the defendant used the (card/ [or] information), (he/ she) intended to obtain money, goods, services, or anything of value;

AND

4. When the defendant used the (card/ [or] information), (he/ she) intended to defraud.

An access card is a card, plate, code, account number, or other means of account access that can be used, alone or with another access card, to obtain (money[,]/ [or] goods[,]/ [or] services[,]/ [or] anything of value), or that can be used to begin a transfer of funds[, other than a transfer originated solely by a paper document].

[(A/An) <insert description, e.g., ATM card, credit card> is an access card.]

[An expired access card is one that shows on its face an expiration date that has passed.]

[A revoked access card is one that the card issuer no longer authorizes for use by the cardholder who has been given written notice of the revocation.]

[A cardholder is anyone who has been issued an access card [or who has agreed with a card issuer to pay debts arising from the issuance of an access card to someone else].]

[A card issuer is a company [or person] [or the agent of a company or person] that issues an access card to a cardholder.]

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 alters an access card if he or she adds to, erases, or changes a part of the card that affects a legal, financial, or property right.]

[The People allege that the defendant used the following (access cards/ [or] access card account information): <insert description of each card when multiple items alleged>. You may not find the defendant guilty unless you all agree that the People have proved that the defendant used at least one of these (cards/ [or] card's account information) and you all agree on which (card/ [or] card account information) (he/she) used.]

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 forged multiple cards or transactions, 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 Cal.Rptr.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.)

If the prosecution alleges that the card was "obtained or retained in violation of Penal Code section 484e or 484f," the court may use the phrase "acquired or retained without permission of the cardholder or card issuer," if appropriate based on the facts. (See Pen. Code, § 484e(d).) Alternatively, the court may insert an appropriate description of a card "obtained or retained in violation of Penal Code section 484e or 484f" where indicated. If the court inserts another description, the court should also give the jury an instruction explaining when a card is "obtained or retained" in violation of the applicable section, defining any necessary terms.

In the definition of "access card," the court may give the bracketed portion that begins with "other than a transfer" at its discretion. This statement is included in the statutory definition of access card. (Pen. Code, § 484d, subd. 2.) However, the committee believes it would rarely be relevant.

The court may also give the bracketed sentence stating "(a/an) is an access card" if the parties agree on that point.

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].)

Authority

Elements. Pen. Code, § 484g(a).

Definitions. Pen. Code, § 484d.

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.

Alteration Defined. People v. Nesseth (1954) 127 Cal.App.2d 712, 718-720 [274 P.2d 479]; People v. Hall (1942) 55 Cal.App.2d 343, 352 [130 P.2d 733].

Unanimity Instruction If Multiple Items. 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, § 193.

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, §§ 143.01[2][c], 143.04[1], [2] (Matthew Bender).

Lesser Included Offenses

Attempted Use of Access Card. Pen. Code, §§ 664, 484g.

Related Issues

Revoked Access Card

To prove that the defendant used a "revoked" access card, the prosecution must prove that written notice of the revocation was sent to the cardholder. (People v. Whight (1995) 36 Cal.App.4th 1143, 1150 [43 Cal.Rptr.2d 163].)

See the Related Issues sections in CALCRIM No. 1900, Forgery by False Signature, and CALCRIM No. 1950, Sale or Transfer of Access Card or Account Number.

(New January 2006)