California Criminal Jury Instructions (CALCRIM) (2017)

1952. Acquiring or Retaining Account Information

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1952.Acquiring or Retaining Account Information (Pen. Code,
§ 484e(d))
The defendant is charged [in Count ] with (acquiring/ [or]
retaining) the account information of an access card [in violation of
Penal Code section 484e(d)].
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;
AND
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.]
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.
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
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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).]
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 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(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(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].
CALCRIM No. 1952 CRIMINAL WRITINGS AND FRAUD
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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).
RELATED ISSUES
Acquires
“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.)
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