California Criminal Jury Instructions (CALCRIM) (2017)

1904. Forgery by Falsifying, Altering, or Counterfeiting Document

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1904.Forgery by Falsifying, Altering, or Counterfeiting Document
(Pen. Code, § 470(d))
The defendant is charged [in Count ] with forgery committed by
(falsely making[,]/ [or] altering[,]/ [or] forging[,]/ [or] counterfeiting) a
document [in violation of Penal Code section 470(d)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (falsely made[,]/ [or] altered[,]/ [or] forged[,]/ [or]
counterfeited) (a/an) <insert type[s] of document[s]
from Pen. Code, § 470(d)>;
AND
2. When the defendant did that act, (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.]
[A person alters a document if he or she adds to, erases, or changes a
part of the document that affects a legal, financial, or property right.]
[The People allege that the defendant (falsely made[,]/ [or] altered[,]/
[or] forged[,]/ [or] counterfeited) the following documents:
<insert description of each document when multiple items alleged>. You
may not find the defendant guilty unless you all agree that the People
have proved that the defendant (falsely made[,]/ [or] altered[,]/ [or]
forged[,]/ [or] counterfeited) at least one of these documents and you all
agree on which document (he/she) (falsely made[,]/ [or] altered[,]/ [or]
forged[,]/ [or] counterfeited).]
New January 2006
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
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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.
AUTHORITY
• Elements. Pen. Code, § 470(d).
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 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, §§ 148, 159–168.
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).
LESSER INCLUDED OFFENSES
• Attempted Forgery. Pen. Code, §§ 664, 470.
COMMENTARY
Penal Code section 470(d) provides that every person who, with the intent to
defraud, falsely makes, alters, forges, or counterfeits, utters, publishes, passes or
attempts or offers to pass, as true and genuine, any of the items specified in
subdivision (d), knowing the same to be false, altered, forged, or counterfeited, is
guilty of forgery. Penal Code section 470(d), as amended by Statutes 2005, ch. 295
(A.B. 361), became effective January 1, 2006. The amendment added “or falsifies
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1904
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the acknowledgment of any notary public or any notary public who issues an
acknowledgment knowing it to be false” after the list of specified items. The
committee believes that the added language has introduced ambiguities. The phrase
“falsifies the acknowledgment of any notary public” seems to refer back to
“person” at the beginning of subdivision (d), but it’s not clear whether this
falsification must also be done with the intent to defraud in order to be forgery. If
so, why was “acknowledgement of a notary public,” which is parallel in kind to the
other documents and instruments listed in subdivision (d), not simply added to the
list of items in subdivision (d)? With respect to the provisions regarding a notary
public who issues an acknowledgment knowing it to be false, it could be that the
Legislature intended the meaning to be that “[e]very person who . . . falsifies the
acknowledgment of . . . any notary public who issues an acknowledgment
knowing it to be false” is guilty of forgery. However, this interpretation makes the
provision superfluous, as the amendment separately makes it forgery to falsify the
acknowledgment of any notary public. Also, if a notary issues a false
acknowledgment, it seems unlikely that it would be further falsified by a defendant
who is not the notary, but who presumably sought and obtained the false
acknowledgement. Alternatively, the Legislature could have intended to make a
notary’s issuance of false acknowledgment an act of forgery on the part of the
notary. The Legislative Counsel’s Digest of Assembly Bill 361 states that the bill
makes it a “misdemeanor for a notary public to willfully fail to perform the
required duties of a notary public” and makes “other related changes.” The bill
amended a number of sections of the Civil Code and the Government Code as well
as Penal Code section 470. The committee awaits clarification by the Legislature or
the courts to enable judges to better interpret the newly-added provisions to Penal
Code section 470(d).
CALCRIM No. 1904 CRIMINAL WRITINGS AND FRAUD
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