1954. Using or Attempting to Use Counterfeit Access Card
The defendant is charged [in Count ______] with (using/ [or] attempting to use) a counterfeit access card.
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;
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.]
A counterfeit 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 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).]
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, 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, § 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.
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].
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[a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes Against Property, §§ 143.01[c], 143.04,  (Matthew Bender).
(New January 2006)