California Criminal Jury Instructions (CALCRIM) (2017)

1951. Acquiring or Retaining an Access Card or Account Number

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1951.Acquiring or Retaining an Access Card or Account Number
(Pen. Code, § 484e(c))
The defendant is charged [in Count ] with unlawfully (acquiring/
[or] retaining) an access card [in violation of Penal Code section
484e(c)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (acquired/ [or] retained) an access card;
2. The defendant did so without the consent of the cardholder or
the issuer of the card;
AND
3. When the defendant (acquired/ [or] retained) the access card,
(he/she) intended to defraud by (using it[,]/ [or] selling or
transferring it to someone other than the cardholder or issuer).
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.]
Acardholder 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].
Acard 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 (acquired/ [or] retained) the
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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
(acquired/ [or] retained) at least one of these cards and you all agree on
which card (he/she) (acquired/ [or] retained).]
New January 2006
BENCH NOTES
Instructional Duty
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 acquired or
retained 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(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 P.2d 75].)
AUTHORITY
• Elements. Pen. Code, § 484e(c).
• 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.2d 752].
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Secondary Sources
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[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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