California Criminal Jury Instructions (CALCRIM) (2017)

1954. Using or Attempting to Use Counterfeit Access Card

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1954.Using or Attempting to Use Counterfeit Access Card (Pen.
Code, § 484f(a))
The defendant is charged [in Count ] with (using/ [or] attempting
to use) a counterfeit access card [in violation of Penal Code section
484f(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (used/ [or] attempted to use) a counterfeit access
card;
AND
2. When the defendant did that act, (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.]
Acounterfeit access card is a counterfeit, fictitious, altered, or forged
access card or a false representation or depiction of an access card or
any part of such a card.
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/an unincorporated 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.]
A person alters an access card if he or she adds to, erases, or changes a
part of the card that affects a legal, financial, or property right.
A person (uses/ [or] attempts to use) a counterfeit access card if he or
she represents to someone that the card is genuine. The representation
may be made by words or conduct and may be either direct or indirect.
[The People allege that the defendant (used/ [or] attempted to use) the
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following counterfeit 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 (used/ [or] attempted to use) at least one of these cards and
you all agree on which card (he/she) (used/ [or] attempted to use).]
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 used 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.)
People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127 Cal.Rptr.2d 770], defines the
term “utter” as to “use” or “attempt to use” an instrument. The committee has
omitted the unfamiliar term “utter” in favor of the more familiar terms “use” and
“attempt to use.”
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, § 484f(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.
CALCRIM No. 1954 CRIMINAL WRITINGS AND FRAUD
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• Alteration Defined. People v. Nesseth (1954) 127 Cal.App.2d 712, 718–720
[274 P.2d 479]; People v. Hall (1942) 55 Cal.App.2d 343, 352 [130 P.2d 733].
• Pass or Attempt to Use Defined. People v. Tomlinson (1868) 35 Cal. 503,
509; People v. Jackson (1979) 92 Cal.App.3d 556, 561 [155 Cal.Rptr. 89],
overruled on other grounds in People v. Anderson (1987) 43 Cal.3d 1104, 1122
[240 Cal.Rptr. 585, 742 P.2d 1306].
• 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, § 192.
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, §§ 143.01[2][c], 143.04[1], [2] (Matthew Bender).
RELATED ISSUES
See the Related Issues sections in CALCRIM No. 1900, Forgery by False
Signature, and CALCRIM No. 1950, Sale or Transfer of Access Card or Account
Number.
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