Justia Criminal Law Center California Criminal Jury Instructions (CALCRIM) (2023) Criminal Writings and Fraud CALCRIM No. 1970. Making, Using, etc., Check Knowing Funds Insufficient (Pen. Code, § 476a)

CALCRIM No. 1970. Making, Using, etc., Check Knowing Funds Insufficient (Pen. Code, § 476a)

Judicial Council of California Criminal Jury Instructions (2023 edition)

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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.

[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

CALCRIM No. 1970 CRIMINAL WRITINGS AND FRAUD

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

CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1970

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].

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

CALCRIM No. 1970 CRIMINAL WRITINGS AND FRAUD

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 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

CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1970

property, it is up to you to decide the meaning and importance of that conduct.

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, Crimes

Against Property, § 143.01[1], [3] (Matthew Bender).

CALCRIM No. 1970 CRIMINAL WRITINGS AND FRAUD

Page last reviewed May 2023