CALCRIM No. 1905. Forgery by Passing or Attempting to Use Forged Document (Pen. Code, § 470(d))

Judicial Council of California Criminal Jury Instructions (2020 edition)

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1905.Forgery by Passing or Attempting to Use Forged Document
(Pen. Code, § 470(d))
The defendant is charged [in Count ] with forgery committed by
(passing[,]/ [or] using[,]/ [or] (attempting/ [or] offering) to use) a forged
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 (passed[,]/ [or] used[,]/ [or] (attempted/ [or]
offered) to use) [a/an] (false[,]/ [or] altered[,]/ [or] forged[,]/ [or]
counterfeited) <insert type[s] of document[s] from
Pen. Code, § 470(d)>;
2. The defendant knew that the <insert type[s] of
document[s] from Pen. Code, § 470(d)>(was/were) (false[,]/
altered[,]/ [or] forged[,]/ [or] counterfeited);
AND
3. When the defendant (passed[,]/ [or] used[,]/ [or] (attempted/ [or]
offered) to use) the <insert type[s] of document[s]
from Pen. Code, § 470(d)>, (he/she) intended that (it/they) be
accepted as genuine and (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 (passes[,]/ [or] uses[,]/ [or] (attempts/ [or] offers) to use) a
document if he or she represents to someone that the document is
genuine. The representation may be made by words or conduct and may
be either direct or indirect.
[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 (passed[,]/ [or] used[,]/ [or]
(attempted/ [or] offered) to use) 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 (passed[,]/ [or] used[,]/ [or] (attempted/
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[or] offered) to use) at least one document that was (false[,]/ [or]
altered[,]/ [or] forged[,]/ [or] counterfeited) and you all agree on which
document (he/she) (passed[,]/ [or] used[,]/ [or] (attempted/ [or] offered) to
use).]
<Sentencing factor for instruments specified in Penal Code section 473(b)>
[If you find the defendant guilty of forgery by (passing[,]/[or] using[,]/
[or] attempting[,]/[or] offering to use) a forged document, 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 passed or
attempted to use multiple forged 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.)
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.”
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 forged 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).
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• 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.
• Pass or Attempt to Use Defined. People v. Tomlinson (1868) 35 Cal. 503, 509;
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 [742 P.2d
1306].
• 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].
COMMENTARY
The committee was unable to locate any authority for what constitutes “offering to
pass” a forged document. In People v. Compton (1899) 123 Cal. 403, 409-411 [56
P. 44], the court held that attempting to pass a forged document requires, at a
minimum, that the defendant present the document to an innocent party, with an
assertion that the document is genuine. (Ibid.; see also People v. Fork (1965) 233
Cal.App.2d 725, 730-731 [43 Cal.Rptr. 804] [discussing sufficiency of the evidence
for attempting to pass].) In light of this holding, it is unclear if any act less than this
would be sufficient for a conviction for “offering to pass.” The committee urges
caution when considering whether to instruct the jury with the phrase “offering to
pass.”
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
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
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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, § 178.
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).
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