Powers (2004) 117 Cal.App.4th 291, 295–297 [11 Cal.Rptr.3d 619].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against
Property, §§ 171–172.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143,
Crimes Against Property, § 143.04[b] (Matthew Bender).
Meaning of Instrument
Penal Code section 115 applies to any “instrument” that, “if genuine, might be
ﬁled, registered, or recorded under any law of this state or of the United States
. . . .” (Pen. Code, § 115(a).) Modern cases have interpreted the term “instrument”
expansively, including any type of document that is ﬁled or recorded with a public
agency that, if acted on as genuine, would have the effect of deceiving someone.
(See People v. Parks (1992) 7 Cal.App.4th 883, 886–887 [9 CalRptr.2d 450];
Generes v. Justice Court (1980) 106 Cal.App.3d 678, 682–684 [165 Cal.Rptr.
222].) Thus, the courts have held that “instrument” includes a modiﬁed restraining
order (People v. Parks, supra, 7 Cal.App.4th at p. 886), false bail bonds (People v.
Garcia (1990) 224 Cal.App.3d 297, 306–307 [273 Cal.Rptr. 666]), and falsiﬁed
probation work referrals (People v. Tate (1997) 55 Cal.App.4th 663, 667 [64
Cal.Rptr.2d 206]). In the recent case of People v. Powers (2004) 117 Cal.App.4th
291, 297 [11 Cal.Rptr.3d 619], the court held that ﬁshing records were
“instruments” under Penal Code section 115. The court stated that “California
courts have shown reluctance to interpret section 115 so broadly that it
encompasses any writing that may be ﬁled in a public office.” (Id. at p. 295.) The
court adopted the following analysis for whether a document is an “instrument,”
quoting the Washington Supreme Court:
(1) the claimed falsity relates to a material fact represented in the
instrument; and (2a) the information contained in the document is of
such a nature that the government is required or permitted by law,
statute or valid regulation to act in reliance thereon; or (2b) the
information contained in the document materially affects signiﬁcant
rights or duties of third persons, when this effect is reasonably
contemplated by the express or implied intent of the statute or valid
regulation which requires the ﬁling, registration, or recording of the
(Id. at p. 297 [quoting State v. Price (1980) 94 Wash.2d 810, 819 [620 P.2d 994].)
Each Document Constitutes a Separate Offense
Penal Code section 115 provides that each fraudulent instrument ﬁled or offered for
ﬁling constitutes a separate violation (subdivision (b)) and may be punished
separately (subdivision (d)). “Thus, the Legislature has unmistakably authorized the
imposition of separate penalties for each prohibited act even though they may be
CALCRIM No. 1945 CRIMINAL WRITINGS AND FRAUD