California Criminal Jury Instructions (CALCRIM) (2017)

1956. Use of Forged, etc., Access Card

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1956.Use of Forged, etc., Access Card (Pen. Code, § 484g(a))
The defendant is charged [in Count ] with using (an access card/
[or] account information for an access card) that had [been] (altered[,]/
[or] forged[,]/ [or] expired[,]/ [or] revoked[,]/ [or] acquired or retained
without permission of the cardholder or card issuer[,]/ [or]
<insert other description of card obtained or retained in violation of Pen.
Code, §§ 484e or 484f>) [in violation of Penal Code section 484g(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant used (an access card/ [or] account information for
an access card) that had [been] (altered[,]/ [or] forged[,]/ [or]
expired[,]/ [or] revoked[,]/ [or] acquired or retained without
permission of the cardholder or card issuer[,]/ [or]
<insert other description of card obtained or retained in violation of
Pen. Code, §§ 484e or 484f>);
2. The defendant knew that the (access card/ [or] account
information) had [been] (altered[,]/ [or] forged[,]/ [or] expired[,]/
[or] revoked[,]/ [or] acquired or retained without permission of
the cardholder or card issuer[,]/ [or] <insert other
description of card obtained or retained in violation of Pen. Code,
§§ 484e or 484f>);
3. When the defendant used the (card/ [or] information), (he/she)
intended to obtain money, goods, services, or anything of value;
AND
4. When the defendant used the (card/ [or] information), (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.]
[An expired access card is one that shows on its face an expiration date
that has passed.]
[A revoked access card is one that the card issuer no longer authorizes
for use by the cardholder who has been given written notice of the
revocation.]
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[A cardholder is anyone 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.]
[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.]
[The People allege that the defendant used the following (access cards/
[or] access card account information): <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 at least one of these (cards/ [or] card’s account
information) and you all agree on which (card/ [or] card account
information) (he/she) used.]
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 forged multiple
cards or transactions, 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.)
If the prosecution alleges that the card was “obtained or retained in violation of
Penal Code section 484e or 484f,” the court may use the phrase “acquired or
retained without permission of the cardholder or card issuer,” if appropriate based
on the facts. (See Pen. Code, § 484e(d).) Alternatively, the court may insert an
appropriate description of a card “obtained or retained in violation of Penal Code
section 484e or 484f” where indicated. If the court inserts another description, the
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court should also give the jury an instruction explaining when a card is “obtained
or retained” in violation of the applicable section, defining any necessary terms.
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, § 484g(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].
• 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, § 193.
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).
LESSER INCLUDED OFFENSES
• Attempted Use of Access Card. Pen. Code, §§ 664, 484g.
RELATED ISSUES
Revoked Access Card
To prove that the defendant used a “revoked” access card, the prosecution must
prove that written notice of the revocation was sent to the cardholder. (People v.
Whight (1995) 36 Cal.App.4th 1143, 1150 [43 Cal.Rptr.2d 163].)
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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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