1970. Making, Using, etc., Check Knowing Funds Insufficient

The defendant is charged [in Count ______] with (making[,]/ [or] drawing[,]/ [or] delivering[,]/ [or] using[,]/ [or] attempting to use) (a/an) (check[,]/ [or] draft[,]/ [or] order) knowing that there were insufficient funds for payment of the (check[,]/ [or] draft[,]/ [or] order).

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

1. The defendant willfully (made[,]/ [or] drew[,]/ [or] delivered[,]/ [or] used[,]/ [or] attempted to use) (a/an) (check[,]/ [or] draft[,]/ [or] order) on a (bank or depositary[,]/ [or] person[,]/ [or] firm[,]/ [or] corporation) for the payment of money;

2. The defendant acted (for (himself/herself)[,]/ [or] as an agent or representative of someone else[,]/ [or] as an officer of a corporation);

3. When the defendant (made[,]/ [or] drew[,]/ [or] delivered[,]/ [or] used[,]/ [or] attempted to use) the (check[,]/ [or] draft[,]/ [or] order), there (were/was) insufficient (funds in/ [or] credit with) the (bank or depositary[,]/ [or] person[,]/ [or] firm[,]/ [or] corporation) to cover full payment of the (check[,]/ [or] draft[,]/ [or] order) and all other outstanding (checks[,]/ [or] drafts[,]/ [or] orders) on that account;

4. The defendant knew that there (were/was) insufficient (funds/ [or] credit) available in that account;

AND

5. When the defendant (made[,]/ [or] drew[,]/ [or] delivered[,]/ [or] used[,]/ [or] attempted to use) the (check[,]/ [or] draft[,]/ [or] order), (he/she) intended to defraud.

(A/An) (check[,]/ [or] draft[,]/ [or] order) is a written document directing a (bank or depositary[,]/ [or] person[,]/ [or] firm[,]/ [or] corporation) to pay the indicated amount to a person named as payee or to someone designated by that person.

A person makes or draws (a/an) (check[,]/ [or] draft[,]/ [or] order) when he or she writes it [or causes it to be written] and signs it to authorize payment.

[Credit, as used here, is an arrangement or understanding with a (bank or depositary[,]/ [or] person[,]/ [or] firm[,]/ [or] corporation) for payment of money authorized by (check[,]/ [or] draft[,]/ [or] order).]

Someone commits an act willfully when he or she does it willingly or on purpose.

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 (uses/ [or] attempts to use) (a/an) (check[,]/ [or] draft[,]/ [or] order) if he or she represents to someone that the instrument is genuine. The representation may be made by words or conduct and may be either direct or indirect.]

[The People allege that the defendant (made[,]/ [or] drew[,]/ [or] delivered[,]/ [or] used[,]/ [or] attempted to use) the following items: <insert description of each instrument when multiple items alleged>. You may not find the defendant guilty unless you all agree that the People have proved that the defendant (made[,]/ [or] drew[,]/ [or] delivered[,]/ [or] used[,]/ [or] attempted to use) at least one of these items and you all agree on which item (he/she) (made[,]/ [or] drew[,]/ [or] delivered[,]/ [or] used[,]/ [or] attempted to use).]

<Defense: Reasonable Expectation of Payment>

[Even if the defendant (made[,]/ [or] drew[,]/ [or] delivered[,]/ [or] used[,]/ [or] attempted to use) (a/an) (check[,]/ draft[,]/ [or] order) knowing that there were insufficient funds for payment of the (check[,]/ draft[,]/ [or] order), the defendant did not intend to defraud if, at the time (he/she) acted, (he/she) reasonably and actually believed that the (check[,]/ draft[,]/ [or] order) would be paid by the (bank or depositary[,]/ [or] person[,]/ [or] firm[,]/ [or] corporation) when presented for payment.

The People have the burden of proving beyond a reasonable doubt that the defendant intended to defraud. If the People have not met this burden, you must find the defendant not guilty of this crime.]

<Defense: Defendant Informed Payee About Insufficient Funds>

[If, when the defendant (made[,]/ [or] drew[,]/ [or] delivered[,]/ [or] used[,]/ [or] attempted to use) the (check[,]/ draft[,]/ [or] order), (he/she) told the person designated to receive payment on the (check[,]/ draft[,]/ [or] order) that there were insufficient funds to allow the (check[,]/ draft[,]/ [or] order) to be paid, then the defendant is not guilty of this crime.

The People have the burden of proving beyond a reasonable doubt that when the defendant (made[,]/ [or] drew[,]/ [or] delivered[,]/ [or] used[,]/ [or] attempted to use) the (check[,]/ draft[,]/ [or] order), (he/she) did not tell the person designated to receive payment that there were insufficient funds to allow the (check[,]/ draft[,]/ [or] order) to be paid. If the People have not met this burden, you must find the defendant not guilty of this crime.]

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 made or used multiple checks, 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 bracketed paragraph that begins with "The People allege that the defendant," 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."

If the prosecution alleges that the defendant made or attempted to use, etc., more than $200 in checks, give CALCRIM No. 1971, Making, Using, etc., Check Knowing Funds Insufficient: Total Value of Checks. If the prosecution alleges that the defendant has a prior forgery-related conviction, give CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial.

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].)

Defenses—Instructional Duty

If there is sufficient evidence to raise a reasonable doubt that the defendant expected the check to be paid, the court has a sua sponte duty to give the bracketed option headed "Defense: Reasonable Expectation of Payment." (People v. Pugh (2002) 104 Cal.App.4th 66, 73 [127 Cal.Rptr.2d 770].)

If there is sufficient evidence to raise a reasonable doubt that the defendant informed the payee that there were insufficient funds to cash the check, the court has a sua sponte duty to give the bracketed option headed "Defense: Defendant Informed Payee About Insufficient Funds." (People v. Poyet (1972) 6 Cal.3d 530, 535-537 [99 Cal.Rptr. 758, 492 P.2d 1150]; People v. Pugh, supra, 104 Cal.App.4th at p. 73.)

Authority

Elements. Pen. Code, § 476a.

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.

Use or Attempt to Use. People v. Pugh (2002) 104 Cal.App.4th 66, 73 [127 Cal.Rptr.2d 770]; 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. 585, 742 P.2d 1306].

Informed Payee About Insufficient Funds. People v. Poyet (1972) 6 Cal.3d 530, 535-537 [99 Cal.Rptr. 758, 492 P.2d 1150]; People v. Pugh (2002) 104 Cal.App.4th 66, 73 [127 Cal.Rptr.2d 770].

Reasonable Expectation of Payment. People v. Pugh (2002) 104 Cal.App.4th 66, 73 [127 Cal.Rptr.2d 770].

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, §§ 140-147.

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[1], [3] (Matthew Bender).

Lesser Included Offenses

This offense is a misdemeanor if the total amount of the checks does not exceed $200, unless the defendant has been previously convicted of a specified theft offense. (Pen. Code, § 476(b).) If the defendant is charged with a felony, then the misdemeanor offense is a lesser included offense. The court must provide the jury with a verdict form on which the jury will indicate if the total amount of the checks exceeds $200 or if the prior conviction has or has not been proved. If the jury finds that the amount did not exceed $200 or the prior conviction was not proved, then the offense should be set at a misdemeanor.

Related Issues

Multiple Checks Totaling Over $200—Number of Counts

Under Penal Code section 476a(b), the offense is a felony—misdemeanor if the total amount of the checks made or issued exceeds $200. In general, CALCRIM No. 1970 the prosecution may charge a separate count for each check. However, if the individual checks do not meet the statutory amount and the offense is charged as a felony based only on the aggregate value, the prosecution can only charge a single felony count covering all of the checks that total more than $200. (In re Watkins (1966) 64 Cal.2d 866, 868-869 [51 Cal.Rptr. 917, 415 P.2d 805].) If, on the other hand, the defendant is charged with felony offenses based on a prior forgery-related conviction, the prosecution may charge each check as a separate felony count. (People v. Pettit (1964) 230 Cal.App.2d 397, 398 [41 Cal.Rptr. 42].)

Grand Theft

A defendant who uses a check with insufficient funds to obtain property may be charged under either Penal Code section 476a or section 487, or both. (People v. Martin (1962) 208 Cal.App.2d 867, 876-878 [25 Cal.Rptr. 610].) However, the defendant may not be sentenced on both charges for the same conduct. (Ibid.; Pen. Code, § 654.)

Return of Property

Two cases have held that the defendant may present evidence that he or she returned some or all of the property in an effort to demonstrate that he or she did not originally intend to defraud. (People v. Katzman (1968) 258 Cal.App.2d 777, 790 [66 Cal.Rptr. 319], disapproved on other grounds in Rhinehart v. Minicipal Court (1984) 35 Cal.3d 772, 780, fn. 11 [200 Cal.Rptr. 916, 677 P.2d 1206]; People v. Braver (1964) 229 Cal.App.2d 303, 307-308 [40 Cal.Rptr. 142].) However, other cases have held that, based on the facts of the particular cases, such evidence was not admissible. (People v. Parker (1970) 11 Cal.App.3d 500, 510 [89 Cal.Rptr. 815] [evidence of defendant's offer to repay following arrest not relevant]; People v. Wing (1973) 32 Cal.App.3d 197, 202 [107 Cal.Rptr. 836] [evidence of restitution not relevant where defendant falsely signed the name of another to a check knowing he had no authority to do so].) If such evidence is presented, the court may give CALCRIM No. 1862, Return of Property Not a Defense to Theft. (People v. Katzman, supra, 258 Cal.App.2d at p. 791.) In additition, in People v. Katzman, supra, 258 Cal.App.2d at p. 792, the court held that, on request, the defense may be entitled to a pinpoint instruction that evidence of restitution may be relevant to determining if the defendant intended to defraud. If the court concludes that such an instruction is appropriate, the court may add the following to the beginning of CALCRIM No. 1862:

If the defendant returned or offered to return [some or all of] the property obtained, that conduct may show (he/she) did not intend to defraud. If you conclude that the defendant returned or offered to return [some or all of] the property, it is up to you to decide the meaning and importance of that conduct.

(New January 2006)