Criminal Law

1952. Acquiring or Retaining Account Information

The defendant is charged [in Count ______] with (acquiring/ [or] retaining) the account information of an access card.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant (acquired/ [or] retained) the account information of an access card that was validly issued to someone else;

2. The defendant did so without the consent of the cardholder or the issuer of the card;


3. When the defendant (acquired/ [or] retained) the account information, (he/she) intended to use that information fraudulently.

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.

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 account information of 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 (acquired/ [or] retained) the account information of at least one of these cards and you all agree on which card's account information (he/she) (acquired/ [or] retained).]

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 possessed the account information of 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 P.2d 75].)


Elements. Pen. Code, § 484e(d).

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].

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).

Related Issues


"If appellant is arguing that only the person who first acquires this information with the requisite intent is guilty of the crime, we disagree. We interpret the crime to apply to any person who acquires that information with the intent to use it fraudulently." (People v. Smith (1998) 64 Cal.App.4th 1458, 1470 [76 Cal.Rptr.2d 75].)

Includes Possession of Cancelled Card

In People v. Molina (2004) 120 Cal.App.4th 507, 511 [15 Cal.Rptr.3d 493], the defendant possessed a cancelled access card that had been issued to someone else. The court held that this constituted a violation of Penal Code section 484e(d). (Id. at pp. 514-515.) The court further held that, although the defendant's conduct also violated Penal Code section 484e(c), a misdemeanor, the defendant's right to equal protection was not violated by being prosecuted for the felony offense. (Id. at pp. 517-518.)

(New January 2006)