Justia Criminal Law California Criminal Jury Instructions (CALCRIM) (2023) Criminal Writings and Fraud CALCRIM No. 1954. Using or Attempting to Use Counterfeit Access Card (Pen. Code, § 484f(a))

CALCRIM No. 1954. Using or Attempting to Use Counterfeit Access Card (Pen. Code, § 484f(a))

Judicial Council of California Criminal Jury Instructions (2023 edition)

Download PDF

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

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

• 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].

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.

SECONDARY SOURCES

2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against

Property, § 217.

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).

CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1954

Page last reviewed May 2023