California Criminal Jury Instructions (CALCRIM) (2017)

1804. Theft by False Pretense

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1804.Theft by False Pretense (Pen. Code, § 484)
The defendant is charged [in Count ] with [grand/petty] theft by
false pretense [in violation of Penal Code section 484].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant knowingly and intentionally deceived a property
owner [or the owner’s agent] by false or fraudulent
representation or pretense;
2. The defendant did so intending to persuade the owner [or the
owner’s agent] to let the defendant [or another person] take
possession and ownership of the property;
AND
3. The owner [or the owner’s agent] let the defendant [or another
person] take possession and ownership of the property because
the owner [or the owner’s agent] relied on the representation or
pretense.
You may not find the defendant guilty of this crime unless the People
have proved that:
[A. The false pretense was accompanied by either a false writing or
false token(;/.)]
[OR]
[(A/B). There was a note or memorandum of the pretense signed or
handwritten by the defendant(;/.)]
[OR]
[(A/B/C). Testimony from two witnesses or testimony from a single
witness along with other evidence supports the conclusion that
the defendant made the pretense.]
[Property includes money, labor, and real or personal property.]
Afalse pretense is any act, word, symbol, or token the purpose of which
is to deceive.
[Someone makes a false pretense if, intending to deceive, he or she does
[one or more of] the following:
[1. Gives information he or she knows is false(./;)]
[OR
2. Makes a misrepresentation recklessly without information that
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justifies a reasonable belief in its truth(./;)]
[OR
3. Does not give information when he or she has an obligation to do
so(./;)]
[OR
4. Makes a promise not intending to do what he or she promises.]]
[Proof that the representation or pretense was false is not enough by
itself to prove that the defendant intended to deceive.]
[Proof that the defendant did not perform as promised is not enough by
itself to prove that the defendant did not intend to perform as
promised.]
[A false token is a document or object that is not authentic, but appears
to be, and is used to deceive.]
[For petty theft, the property taken can be of any value, no matter how
slight.]
[An owner [or an owner’s agent] relies on false pretense, if the
falsehood is an important part of the reason the owner [or agent]
decides to give up the property. The false pretense must be an
important factor, but it does not have to be the only factor the owner
[or agent] considers in making the decision. [If the owner [or agent]
gives up property some time after the pretense is made, the owner [or
agent] must do so because he or she relies on the pretense.]]
[An agent is someone to whom the owner has given complete or partial
authority and control over the owner’s property.]
New January 2006; Revised August 2006, December 2008, April 2010
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of this crime, including
the corroboration requirements stated in Penal Code section 532(b). (People v.
Mason (1973) 34 Cal.App.3d 281, 286 [109 Cal.Rptr. 867] [error not to instruct on
corroboration requirements].)
Related Instructions
If the defendant is also charged with grand theft, give CALCRIM No. 1801, Theft:
Degrees. If the defendant is charged with petty theft, no other instruction is
required, and the jury should receive a petty theft verdict form.
If the defendant is charged with petty theft with a prior conviction, give CALCRIM
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No. 1850, Petty Theft With Prior Conviction.
AUTHORITY
• Elements. Pen. Code § 484; People v. Wooten (1996) 44 Cal.App.4th 1834,
1842 [52 Cal.Rptr.2d 765]; see People v. Webb (1999) 74 Cal.App.4th 688,
693–694 [88 Cal.Rptr.2d 259] [false statement of opinion].
• Corroboration Requirements. Pen. Code § 532(b); People v. Gentry (1991) 234
Cal.App.3d 131, 139 [285 Cal.Rptr. 591]; People v. Fujita (1974) 43
Cal.App.3d 454, 470–471 [117 Cal.Rptr. 757].
• Agent. People v. Britz (1971) 17 Cal.App.3d 743, 753 [95 Cal.Rptr. 303].
• Reckless Misrepresentation. People v. Schmitt (1957) 155 Cal.App.2d 87, 110
[317 P.2d 673]; People v. Ryan (1951) 103 Cal.App.2d 904, 908–909 [230 P.2d
359].
• Defendant Need Not Be Beneficiary of Theft. People v. Cheeley (1951) 106
Cal.App.2d 748, 753 [236 P.2d 22].
• Reliance. People v. Wooten (1996) 44 Cal.App.4th 1834, 1842–1843 [52
Cal.Rptr.2d 765] [defining reliance]; People v. Sanders (1998) 67 Cal.App.4th
1403, 1413 [79 Cal.Rptr.2d 806] [reversible error to fail to instruct on reliance];
People v. Whight (1995) 36 Cal.App.4th 1143, 1152–1153 [43 Cal.Rptr.2d 163]
[no reliance if victim relies solely on own investigation].
• Theft of Real Property by False Pretenses. People v. Sanders (1998) 67
Cal.App.4th 1403, 1413–1417 [79 Cal.Rptr.2d 806].
• Theft by False Pretenses Includes Obtaining Loan by False Pretenses. Perry v.
Superior Court of Los Angeles County (1962) 57 Cal.2d 276, 282–283 [19
Cal.Rptr.1, 368 P.2d 529].
• Either Token or Writing Must Be False. People v. Henning (2009) 173
Cal.App.4th 632, 641–642 [92 Cal.Rptr.3d 775].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against
Property, §§ 12, 64.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143,
Crimes Against Property, § 143.01 (Matthew Bender).
LESSER INCLUDED OFFENSES
• Petty Theft. Pen. Code, § 486.
Attempted Theft. Pen. Code, §§ 664, 484.
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RELATED ISSUES
Attempted Theft by False Pretense
Reliance on the false pretense need not be proved for a person to be guilty of
attempted theft by false pretense. (People v. Fujita (1974) 43 Cal.App.3d 454, 467
[117 Cal.Rptr. 757].)
Continuing Nature of False Pretense
Penal Code section 484 recognizes that theft by false pretense is a crime of a
continuing nature and covers any “property or service received as a result thereof,
and the complaint, information or indictment may charge that the crime was
committed on any date during the particular period in question.” (Pen. Code,
§ 484(a).)
Corroboration—Defined/Multiple Witnesses
“Corroborating evidence is sufficient if it tends to connect the defendant with the
commission of the crime in such a way so as to reasonably satisfy the jury that the
complaining witness is telling the truth.” (People v. Fujita (1974) 43 Cal.App.3d
454, 470 [117 Cal.Rptr. 757].) When considering if the pretense is corroborated the
jury may consider “the entire conduct of the defendant, and his declarations to
other persons.” (People v. Wymer (1921) 53 Cal.App. 204, 206 [199 P. 815].) The
test for corroboration of false pretense is the same as the test for corroborating the
testimony of an accomplice in Penal Code section 1111. (Ibid.; see also People v.
MacEwing (1955) 45 Cal.2d 218, 224 [288 P.2d 257].) To establish corroboration
by multiple witnesses, the witnesses do not have to testify to the same false
pretense. The requirement is satisfied as long as they testify to the same scheme or
type of false pretense. (People v. Gentry (1991) 234 Cal.App.3d 131, 139 [285
Cal.Rptr. 591]; People v. Ashley (1954) 42 Cal.2d 246, 268 [267 P.2d 271].)
Distinguished from Theft by Trick
Although fraud is used to obtain the property in both theft by trick and theft by
false pretense, in theft by false pretense, the thief obtains both possession and title
to the property. For theft by trick, the thief gains only possession of the property.
(People v. Ashley (1954) 42 Cal.2d 246, 258 [267 P.2d 271]; People v. Randono
(1973) 32 Cal.App.3d 164, 172 [108 Cal.Rptr. 326].) False pretenses does not
require that the title pass perfectly and the victim may even retain a security
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interest in the property transferred to the defendant. (People v. Counts (1995) 31
Cal.App.4th 785, 789–792 [37 Cal.Rptr.2d 425].)
Fraudulent Checks
If a check is the basis for the theft by false pretense, it cannot also supply the
written corroboration required by statute. (People v. Mason (1973) 34 Cal.App.3d
281, 288 [109 Cal.Rptr. 867].)
Genuine Writings
A genuine writing that is falsely used is not a false token. (People v. Beilfuss
(1943) 59 Cal.App.2d 83, 91 [138 P.2d 332] [valid check obtained by fraud not
object of theft by false pretense].)
Implicit Misrepresentations
The misrepresentation does not have to be made in an express statement; it may be
implied from behavior or other circumstances. (People v. Mace (1925) 71 Cal.App.
10, 21 [234 P. 841]; People v. Randono (1973) 32 Cal.App.3d 164, 174–175 [108
Cal.Rptr. 326] [analogizing to the law of implied contracts].)
Nonperformance of a Promise Is Insufficient to Prove a False Pretense
The pretense may be made about a past or present fact or about a promise to do
something in the future. (People v. Ashley (1954) 42 Cal.2d 246, 259–265 [267
P.2d 271].) If the pretense relates to future actions, evidence of nonperformance of
the promise is not enough to establish the falsity of a promise. (People v. Fujita
(1974) 43 Cal.App.3d 454, 469 [117 Cal.Rptr. 757].) The intent to defraud at the
time the promise is made must be demonstrated. As the court in Ashley stated,
“[w]hether the pretense is a false promise or a misrepresentation of fact, the
defendant’s intent must be proved in both instances by something more than mere
proof of nonperformance or actual falsity.” (People v. Ashley, supra, 42 Cal.2d at p.
264 [court also stated that defendant is entitled to instruction on this point but did
not characterize duty as sua sponte].)
See the Related Issues section under CALCRIM No. 1800, Theft by Larceny.
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