California Criminal Jury Instructions (CALCRIM) (2017)

1957. Obtaining Money, etc., by Representing Self as Holder of Access Card

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1957.Obtaining Money, etc., by Representing Self as Holder of
Access Card (Pen. Code, § 484g(b))
The defendant is charged [in Count __] with obtaining something
of value by fraudulently representing (himself/herself) as the holder of
an access card [in violation of Penal Code section 484g(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant obtained (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value) by representing that (he/she) was
the holder of an access card;
2. The access card had not, in fact, been issued;
3. The defendant obtained (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value) without the consent of the
cardholder;
AND
4. When the defendant obtained (money[,]/ [or] goods[,]/ [or]
services[,]/ [or] something [else] of value), (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.]
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
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a financial, legal, or property loss as a result of the defendant’s acts.]
[If you find the defendant guilty of obtaining money by access card, you
must then decide whether the value of the (money[,]/ [or] goods[,]/ [or]
services[,]/ [or] something [else] of value) obtained in any six-month
period was more than $950. If you have a reasonable doubt whether the
value of the (money[,]/ [or] goods[,]/ [or] services[,]/ [or] something
[else] of value) was more than $950, you must find this allegation has
not been proved.]
New January 2006; Revised August 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
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].)
When the People allege the defendant has a prior conviction for an offense listed in
Penal Code section 667(e)(2)(C)(iv) or for an offense requiring registration pursuant
to subdivision (c) of section 290, give CALCRIM No. 3100, Prior Conviction:
Nonbifurcated Trial or CALCRIM No. 3101, Prior Conviction: Bifurcated Trial.
AUTHORITY
• Elements Pen. Code, § 484g(b).
• 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.
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
CALCRIM No. 1957 CRIMINAL WRITINGS AND FRAUD
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Property § 218.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143,
Crimes Against Property, § 143.01[2][c] (Matthew Bender).
COMMENTARY
The committee has written this instruction based on the language of the statute,
Penal Code section 484g(b). However, the committee notes that the requirements of
the statute appear to be internally inconsistent.
LESSER INCLUDED OFFENSES
• Attempted Use of Access Card Pen. Code, §§ 664, 484g.
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.
1958–1969. Reserved for Future Use
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1957
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