1950. Sale or Transfer of Access Card or Account Number
The defendant is charged [in Count ______] with (selling[,]/ [or] transferring[,]/ [or] conveying) an access card.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant (sold[,]/ [or] transferred[,]/ [or] conveyed) an access card;
2. The defendant did so without the consent of the cardholder or the issuer of the card;
3. When the defendant (sold[,]/ [or] transferred[,]/ [or] conveyed) the access card, (he/she) intended to defraud.
An access card is a card, plate, code, account number, or other means of account access that can be used, alone or with another access card, to obtain (money[,]/ [or] goods[,]/ [or] services[,]/ [or] anything of value), or that can be used to begin a transfer of funds[, other than a transfer originated solely by a paper document].
[(A/An) <insert description, e.g., ATM card, credit card> is an access card.]
A cardholder is someone who has been issued an access card [or who has agreed with a card issuer to pay debts arising from the issuance of an access card to someone else].
A card issuer is a company [or person] [or the agent of a company or person] that issues an access card to a cardholder.
[Selling means exchanging something for money, services, or anything of value.]
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.]
[The People allege that the defendant (sold[,]/ [or] transferred[,]/ [or] conveyed) the following access cards: <insert description of each card when multiple items alleged>. You may not find the defendant guilty unless you all agree that the People have proved that the defendant (sold[,]/ [or] transferred[,]/ [or] conveyed) at least one of these cards and you all agree on which card (he/she) (sold[,]/ [or] transferred[,]/ [or] conveyed).]
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 sold or transferred multiple cards, 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.)
In the definition of "access card," the court may give the bracketed portion that begins with "other than a transfer" at its discretion. This statement is included in the statutory definition of access card. (Pen. Code, § 484d, subd. 2.) However, the committee believes it would rarely be relevant.
The court may also give the bracketed sentence stating "(a/an) is an access card" if the parties agree on that point.
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 P2d 75].)
Elements. Pen. Code, § 484e(a).
Definitions. Pen. Code, § 484d.
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.
Unanimity Instruction If Multiple Items. People v. Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr. 752].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Property, §§ 190-191.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.02[a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes Against Property, § 143.04,  (Matthew Bender).
Lesser Included Offenses
Possession of Access Card With Intent to Sell (Pen. Code, § 484e(c)) may be a lesser included offense. (But see People v. Butler (1996) 43 Cal.App.4th 1224, 1245-1246 [51 Cal.Rptr.2d 150].)
Multiple Charges Based on Single Act
Prosecution under Penal Code section 484d et seq. does not preclude simultaneous prosecution under other statutes for the same conduct. (People v. Braz (1997) 57 Cal.App.4th 1, 8 [66 Cal.Rptr.2d 553]; People v. Butler (1996) 43 Cal.App.4th 1224, 1243-1244 [51 Cal.Rptr.2d 150].) Thus, the defendant may also be charged with such offenses as burglary (Pen. Code, § 459), forgery (Pen. Code, § 470), grand theft (Pen. Code, § 487), or telephone fraud (Pen. Code, § 502.7). (People v. Braz, supra, 57
Cal.App.4th at p. 8; People v. Butler, supra, 43 Cal.App.4th at pp. 1243- 1244.) However, Penal Code section 654 may preclude punishment for multiple offenses. (People v. Butler, supra, 43 Cal.App.4th at p. 1248.)
Cloned Cellular Phone
"[T]he Legislature intended that the definition of access card be broad enough to cover future technologies, the only limitation being on purely paper transactions. As the evidence disclosed here, a cloned cellular phone is a sophisticated and unlawful 'means of account access' to the account of a legitimate telephone subscriber." (People v. Butler (1996) 43 Cal.App.4th 1224, 1244 [51 Cal.Rptr.2d 150].)
(New January 2006)