Justia Criminal Law Center California Criminal Jury Instructions (CALCRIM) (2023) Criminal Writings and Fraud CALCRIM No. 1904. Forgery by Falsifying, Altering, or Counterfeiting Document (Pen. Code, § 470(d))

CALCRIM No. 1904. Forgery by Falsifying, Altering, or Counterfeiting Document (Pen. Code, § 470(d))

Judicial Council of California Criminal Jury Instructions (2023 edition)

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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).]

[If you find the defendant guilty of forgery by (falsifying[,]/[or]

altering[,]/[or] counterfeiting), you must then decide whether the value of

the (check/bond/bank bill/note/cashier’s check/traveler’s

check/money order) was more than $950. If you have a reasonable doubt

whether the value of the (check/bond/bank

bill/note/cashier’s check/traveler’s check/money order) has a value of

more than $950, you must find this allegation has not been proved.]

New January 2006; Revised March 2019

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to give an 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.

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].

• Required Additional Findings. Pen. Code, § 473(b).

• Scope of Pen. Code, § 473(b). People v. Gonzales (2018) 6 Cal.5th 44 [237

Cal.Rptr.3d 193, 424 P.3d 280].

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

CALCRIM No. 1904 CRIMINAL WRITINGS AND FRAUD

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

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).

SECONDARY SOURCES

2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against

Property, §§ §§ 165, 168-177.

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).

CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1904

Page last reviewed May 2023