California Criminal Jury Instructions (CALCRIM) (2017)

1970. Making, Using, etc., Check Knowing Funds Insufficient

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C. CHECK WITH INSUFFICIENT FUNDS
1970.Making, Using, etc., Check Knowing Funds Insufficient
(Pen. Code, § 476a)
The defendant is charged [in Count ] with (making[,]/ [or]
drawing[,]/ [or] delivering[,]/ [or] using[,]/ [or] attempting to use) (a/an)
(check[,]/ [or] draft[,]/ [or] order) knowing that there were insufficient
funds for payment of the (check[,]/ [or] draft[,]/ [or] order) [in violation
of Penal Code section 476a].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully (made[,]/ [or] drew[,]/ [or] delivered[,]/
[or] used[,]/ [or] attempted to use) (a/an) (check[,]/ [or] draft[,]/
[or] order) on a (bank or depositary[,]/ [or] person[,]/ [or]
firm[,]/ [or] corporation) for the payment of money;
2. The defendant acted (for (himself/herself)[,]/ [or] as an agent or
representative of someone else[,]/ [or] as an officer of a
corporation);
3. When the defendant (made[,]/ [or] drew[,]/ [or] delivered[,]/ [or]
used[,]/ [or] attempted to use) the (check[,]/ [or] draft[,]/ [or]
order), there (were/was) insufficient (funds in/ [or] credit with)
the (bank or depositary[,]/ [or] person[,]/ [or] firm[,]/ [or]
corporation) to cover full payment of the (check[,]/ [or] draft[,]/
[or] order) and all other outstanding (checks[,]/ [or] drafts[,]/
[or] orders) on that account;
4. The defendant knew that there (were/was) insufficient (funds/
[or] credit) available in that account;
AND
5. When the defendant (made[,]/ [or] drew[,]/ [or] delivered[,]/ [or]
used[,]/ [or] attempted to use) the (check[,]/ [or] draft[,]/ [or]
order), (he/she) intended to defraud.
(A/An) (check[,]/ [or] draft[,]/ [or] order) is a written document directing
a (bank or depositary[,]/ [or] person[,]/ [or] firm[,]/ [or] corporation) to
pay the indicated amount to a person named as payee or to someone
designated by that person.
A person makes or draws (a/an) (check[,]/ [or] draft[,]/ [or] order) when
he or she writes it [or causes it to be written] and signs it to authorize
payment.
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[Credit, as used here, is an arrangement or understanding with a (bank
or depositary[,]/ [or] person[,]/ [or] firm[,]/ [or] corporation) for
payment of money authorized by (check[,]/ [or] draft[,]/ [or] order).]
Someone commits an act willfully when he or she does it willingly or on
purpose.
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 (uses/ [or] attempts to use) (a/an) (check[,]/ [or] draft[,]/ [or]
order) if he or she represents to someone that the instrument is genuine.
The representation may be made by words or conduct and may be
either direct or indirect.]
[The People allege that the defendant (made[,]/ [or] drew[,]/ [or]
delivered[,]/ [or] used[,]/ [or] attempted to use) the following items:
<insert description of each instrument when multiple items
alleged>. You may not find the defendant guilty unless you all agree
that the People have proved that the defendant (made[,]/ [or] drew[,]/
[or] delivered[,]/ [or] used[,]/ [or] attempted to use) at least one of these
items and you all agree on which item (he/she) (made[,]/ [or] drew[,]/
[or] delivered[,]/ [or] used[,]/ [or] attempted to use).]
[If you find the defendant guilty of (making[,]/ [or] drawing[,]/ [or]
delivering[,]/ [or] using[,]/ [or] attempting to use) (a/an) (check[,]/ [or]
draft[,]/ [or] order) knowing that there were insufficient funds for
payment of the (check[,]/ [or] draft[,]/ [or] order) you must also
determine whether the defendant was previously convicted of
<insert at least three theft crimes specified in Penal Code section 476a(b)>.
<Defense: Reasonable Expectation of Payment>
[Even if the defendant (made[,]/ [or] drew[,]/ [or] delivered[,]/ [or]
used[,]/ [or] attempted to use) (a/an) (check[,]/ draft[,]/ [or] order)
knowing that there were insufficient funds for payment of the (check[,]/
draft[,]/ [or] order), the defendant did not intend to defraud if, at the
time (he/she) acted, (he/she) reasonably and actually believed that the
(check[,]/ draft[,]/ [or] order) would be paid by the (bank or
depositary[,]/ [or] person[,]/ [or] firm[,]/ [or] corporation) when
presented for payment.
The People have the burden of proving beyond a reasonable doubt that
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the defendant intended to defraud. If the People have not met this
burden, you must find the defendant not guilty of this crime.]
<Defense: Defendant Informed Payee About Insuffıcient Funds>
[If, when the defendant (made[,]/ [or] drew[,]/ [or] delivered[,]/ [or]
used[,]/ [or] attempted to use) the (check[,]/ draft[,]/ [or] order), (he/she)
told the person designated to receive payment on the (check[,]/ draft[,]/
[or] order) that there were insufficient funds to allow the (check[,]/
draft[,]/ [or] order) to be paid, then the defendant is not guilty of this
crime.
The People have the burden of proving beyond a reasonable doubt that
when the defendant (made[,]/ [or] drew[,]/ [or] delivered[,]/ [or] used[,]/
[or] attempted to use) the (check[,]/ draft[,]/ [or] order), (he/she) did not
tell the person designated to receive payment that there were insufficient
funds to allow the (check[,]/ draft[,]/ [or] order) to be paid. If the
People have not met this burden, you must find the defendant not guilty
of this crime.]
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.
If the prosecution alleges under a single count that the defendant made or used
multiple checks, 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 bracketed paragraph that begins with “The People allege that the
defendant,” 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.”
If the prosecution alleges that the defendant made or attempted to use, etc., more
than $950 in checks, give CALCRIM No. 1971, Making, Using, etc., Check
Knowing Funds Insuffıcient: Total Value of Checks. If the prosecution alleges that
the defendant has a prior forgery-related conviction, give CALCRIM No. 3100,
Prior Conviction: Nonbifurcated Trial.
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
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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.
Defenses—Instructional Duty
If there is sufficient evidence to raise a reasonable doubt that the defendant
expected the check to be paid, the court has a sua sponte duty to give the
bracketed option headed “Defense: Reasonable Expectation of Payment.” (People v.
Pugh (2002) 104 Cal.App.4th 66, 73 [127 Cal.Rptr.2d 770].)
If there is sufficient evidence to raise a reasonable doubt that the defendant
informed the payee that there were insufficient funds to cash the check, the court
has a sua sponte duty to give the bracketed option headed “Defense: Defendant
Informed Payee About Insufficient Funds.” (People v. Poyet (1972) 6 Cal.3d 530,
535–537 [99 Cal.Rptr. 758, 492 P.2d 1150]; People v. Pugh, supra, 104
Cal.App.4th at p. 73.)
AUTHORITY
• Elements Pen. Code, § 476a.
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.
• Use or Attempt to Use People v. Pugh (2002) 104 Cal.App.4th 66, 73 [127
Cal.Rptr.2d 770]; 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].
• Informed Payee About Insufficient Funds People v. Poyet (1972) 6 Cal.3d 530,
535–537 [99 Cal.Rptr. 758, 492 P.2d 1150]; People v. Pugh (2002) 104
Cal.App.4th 66, 73 [127 Cal.Rptr.2d 770].
• Reasonable Expectation of Payment People v. Pugh (2002) 104 Cal.App.4th
66, 73 [127 Cal.Rptr.2d 770].
• Unanimity Instruction If Multiple Documents 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 (4th ed. 2012) Crimes Against
Property §§ 180–187.
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,
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Crimes Against Property, § 143.01[1], [3] (Matthew Bender).
LESSER INCLUDED OFFENSES
This offense is a misdemeanor if the total amount of the checks does not exceed
$950, unless the defendant has been previously convicted of three specified theft
offenses. (Pen. Code, § 476a(b).) If the defendant is charged with a felony, then the
misdemeanor offense is a lesser included offense. The court must provide the jury
with a verdict form on which the jury will indicate if the total amount of the
checks exceeds $950 or if the prior convictions have or have not been proved. If
the jury finds that the amount did not exceed $950 or the prior convictions were
not proved, then the offense should be set at a misdemeanor.
RELATED ISSUES
Multiple Checks Totaling Over $950—Number of Counts
Under Penal Code section 476a(b), the offense is a felony-misdemeanor if the total
amount of the checks made or issued exceeds $950. In general, the prosecution
may charge a separate count for each check. However, if the individual checks do
not meet the statutory amount and the offense is charged as a felony based only on
the aggregate value, the prosecution can only charge a single felony count covering
all of the checks that total more than $950. (In re Watkins (1966) 64 Cal.2d 866,
868–869 [51 Cal.Rptr. 917, 415 P.2d 805].) If, on the other hand, the defendant is
charged with felony offenses based on a prior forgery-related conviction, the
prosecution may charge each check as a separate felony count. (People v. Pettit
(1964) 230 Cal.App.2d 397, 398 [41 Cal.Rptr. 42].)
Grand Theft
A defendant who uses a check with insufficient funds to obtain property may be
charged under either Penal Code section 476a or section 487, or both. (People v.
Martin (1962) 208 Cal.App.2d 867, 876–878 [25 Cal.Rptr. 610].) However, the
defendant may not be sentenced on both charges for the same conduct. (Ibid.; Pen.
Code, § 654.)
Return of Property
Two cases have held that the defendant may present evidence that he or she
returned some or all of the property in an effort to demonstrate that he or she did
not originally intend to defraud. (People v. Katzman (1968) 258 Cal.App.2d 777,
790 [66 Cal.Rptr. 319], disapproved on other grounds in Rhinehart v. Municipal
Court (1984) 35 Cal.3d 772, 780, fn. 11 [200 Cal.Rptr.916, 677 P.2d 1206]; People
v. Braver (1964) 229 Cal.App.2d 303, 307–308 [40 Cal.Rptr. 142].) However, other
cases have held that, based on the facts of the particular cases, such evidence was
not admissible. (People v. Parker (1970) 11 Cal.App.3d 500, 510 [89 Cal.Rptr.
815] [evidence of defendant’s offer to repay following arrest not relevant]; People
v. Wing (1973) 32 Cal.App.3d 197, 202 [107 Cal.Rptr. 836] [evidence of restitution
not relevant where defendant falsely signed the name of another to a check
knowing he had no authority to do so].) If such evidence is presented, the court
may give CALCRIM No. 1862, Return of Property Not a Defense to Theft. (People
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v. Katzman,supra, 258 Cal.App.2d at p. 791.) In addition, in People v. Katzman,
supra, 258 Cal.App.2d at p. 792, the court held that, on request, the defense may
be entitled to a pinpoint instruction that evidence of restitution may be relevant to
determining if the defendant intended to defraud. If the court concludes that such
an instruction is appropriate, the court may add the following to the beginning of
CALCRIM No. 1862:
If the defendant returned or offered to return [some or all of] the property
obtained, that conduct may show (he/she) did not intend to defraud. If you
conclude that the defendant returned or offered to return [some or all of] the
property, it is up to you to decide the meaning and importance of that conduct.
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