CALCRIM No. 1935. Making, Passing, etc., Fictitious Check or Bill (Pen. Code, § 476)

Judicial Council of California Criminal Jury Instructions (2022 edition)

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(v) Check Fraud
1935.Making, Passing, etc., Fictitious Check or Bill (Pen. Code,
§ 476)
The defendant is charged [in Count ] with (possessing[,]/ [or]
making[,]/ [or] passing[,]/ [or] using[,]/ [or] attempting to pass or use)
(a/an) (false/ [or] altered) (check[,]/ [or] bill[,]/ [or] note[,]/ [or other]
legal writing for the payment of money or property) [in violation of
Penal Code section 476].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (possessed[,]/ [or] made[,]/ [or] passed[,]/ [or]
used[,]/ [or] attempted to pass or use) (a/an) (false/ [or] altered)
(check[,]/ [or] bill[,]/ [or] note[,]/ [or other] legal writing for the
payment of money or property);
2. The defendant knew that the document was (false/ [or] altered);
[AND]
3. When the defendant (possessed[,]/ [or] made[,]/ [or] passed[,]/ [or]
used[,]/ [or] attempted to pass or use) the document, (he/she)
intended to defraud(;/.)
<Give element 4 only when possession charged.>
[AND
4. When the defendant possessed the document, (he/she) intended to
pass or use the document as genuine.]
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.]
A person (passes[,]/ [or] uses[,]/ [or] attempts to pass or 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.
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[The People allege that the defendant (possessed[,]/ [or] made[,]/ [or]
passed[,]/ [or] used[,]/ [or] attempted to pass or 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 (possessed[,]/
[or] made[,]/ [or] passed[,]/ [or] used[,]/ [or] attempted to pass or use) at
least one document that was (fictitious/ [or] altered) and you all agree on
which document (he/she) (possessed[,]/ [or] made[,]/ [or] passed[,]/ [or]
used[,]/ [or] attempted to pass or use).]
<Sentencing factor for instruments specified in Penal Code section 473(b)>
[If you find the defendant guilty of (possessing[,]/[or] making[,]/ [or]
passing [,]/ [or] using[,]/ [or] attempting to pass or use) a fictitious
(check/bill/note/legal writing), you must then decide whether the value of
the (check/bond/bank bill/note/cashiers 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 April 2011, 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
possessed 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.”
If the prosecution alleges that the defendant possessed the document, give element
4. Do not give element 4 if the prosecution alleges that the defendant made, passed,
used, or attempted to pass or use the document.
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
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shows that the defendant did not succeed in defrauding anyone. (People v. Morgan
(1956) 140 Cal.App.2d 796, 801 [296 P.2d 75].)
AUTHORITY
Elements. Pen. Code, § 476.
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 [240
Cal.Rptr. 585, 742 P.2d 1306].
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].
Explanation of “Fictitious.” People v. Mathers (2010) 183 Cal.App.4th 1464,
1467-1468 [108 Cal.Rptr.3d 720].
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 Making, etc., of Fictitious Check. Pen. Code, §§ 664, 476.
RELATED ISSUES
Check Fraud
A defendant who forges the name of another on a check may be charged under
either Penal Code section 470 or section 476. (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; see also CALCRIM No. 3516,
Multiple Counts - Alternative Charges for One Event - Dual Conviction Prohibited.)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 178, 192, 195.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
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6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.04[1], [2] (Matthew Bender).
1936-1944. Reserved for Future Use
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