1900. Forgery by False Signature
The defendant is charged [in Count ______] with forgery committed by signing a false signature.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant signed (someone else's name/ [or] a false name) to [a/an] <insert type[s] of document[s] from Pen. Code, § 470(d)>;
2. The defendant did not have authority to sign that name;
3. The defendant knew that (he/she) did not have that authority;
4. When the defendant signed the document, (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.]
[The People allege that the defendant forged the following documents: <insert description of each document when multiple items alleged>.
You may not find the defendant guilty unless all of you agree that the People have proved that the defendant forged at least one of these documents and you all agree on which document (he/she) forged.]
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 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 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.)
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 passed or attempted to pass the same document, give CALCRIM No. 1906, Forging and Passing or Attempting to Pass: Two Theories in One Count.
Elements. Pen. Code, § 470(a).
Signature Not Authorized—Element of Offense. People v. Hidalgo (1933) 128 Cal.App. 703, 707 [18 P.2d 391]; People v. Maioli (1933) 135 Cal.App. 205, 207 [26 P.2d 871].
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.
Unanimity Instruction If Multiple Documents. People v. Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Property, §§ 148, 159-168.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.02[a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes Against Property, § 143.04[a], [d][a] (Matthew Bender).
Lesser Included Offenses
Attempted Forgery. Pen. Code, §§ 664, 470.
Documents Not Specifically Listed in Penal Code Section 470(d)
A document not specifically listed in Penal Code section 470(d) may still come within the scope of the forgery statute if the defendant "forges the . . . handwriting of another." (Pen. Code, § 470(b).) "[A] writing not within those listed may fall under the part of section 470 covering a person who 'counterfeits or forges the . . . handwriting of another' if, on its face, the writing could possibly defraud anyone. [Citations.] The false writing must be something which will have the effect of defrauding one who acts upon it as genuine." (People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 741-742 [38 Cal.Rptr.2d 176].) The document must affect an identifiable legal, monetary, or property right. (Id. at p. 743; Lewis v. Superior Court (1990) 217 Cal.App.3d 379, 398-399 [265 Cal.Rptr. 855] [campaign letter with false signature of President Reagan could not be basis of forgery charge].) See CALCRIM No. 1902, Forgery of Handwriting or Seal.
A defendant who forges the name of another on a check may be charged under either Penal Code section 470 or section 476, or both. (People v. Hawkins (1961) 196 Cal.App.2d 832, 838 [17 Cal.Rptr. 66]; People v. Pearson (1957) 151 Cal.App.2d 583, 586 [311 P.2d 927].) However, the defendant may not be convicted of and sentenced on both charges for the same conduct. (Pen. Code, § 654; People v. Hawkins, supra, 196 Cal.App.2d at pp. 839-840 [one count ordered dismissed]; see also CALCRIM No. 3516, Multiple Counts: Alternative Charges for One Event.)
Credit Card Fraud
A defendant who forges the name of another on a credit card sales slip may be charged under either Penal Code section 470 or section 484f, or both. (People v. Cobb (1971) 15 Cal.App.3d 1, 4.) However, the defendant may not be convicted and sentenced on both charges for the same conduct. (Pen. Code, § 654; see also CALCRIM No. 3516, Multiple Counts: Alternative Charges for One Event.)
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. Municipal 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, based on the particular facts of the cases, that such evidence was not admissible. (People v. Parker (1970) 11 Cal.App.3d 500, 510 [89 Cal.Rptr. 815] [evidence that the defendant made full restitution 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 addition, 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 language 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.
Inducing Mentally Ill Person to Sign Document
In People v. Looney (2004) 125 Cal.App.4th 242, 248 [22 Cal.Rptr.3d 502], the court held that the defendants could not be prosecuted for forgery where the evidence showed that the defendants induced a mentally ill person to sign legal documents transferring property to them. The court concluded that, because the defendants had accurately represented the nature of the documents to the mentally ill person and had not altered the documents after he signed, they did not commit forgery. (Ibid.)
(New January 2006)