1971. Making, Using, etc., Check Knowing Funds Insufficient: Total Value of Checks
If you find the defendant guilty of (making[,]/ [or] drawing[,]/ [or] delivering[,]/ [or] using[,]/ [or] attempting to use) (a/an) (check[,]/ draft[,]/ [or] order) knowing that there were insufficient funds to cover it, you must then decide whether the People have proved either of the following:
1. That at least one (check[,]/ draft[,]/ [or] order) that the defendant (made[,]/ [or] drew[,]/ [or] delivered[,]/ [or] used[,]/ [or] attempted to use) knowing that there were insufficient funds to cover it was for more than $200;
2. That the total value of the (checks[,]/ [or] drafts[,]/ [or] orders) charged in Count that the defendant (made[,]/ [or] drew[,]/ [or] delivered[,]/ [or] used[,]/ [or] attempted to use) knowing that there were insufficient funds to cover them was more than $200.
The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find that this allegation has not been proved.
If the defendant is charged with a felony based on the value of the checks, the court has a sua sponte duty to instruct on this sentencing factor.
This instruction must be given with the appropriate instruction on the other elements of the offense, CALCRIM No. 1970, Making, Using, etc., Check Knowing Funds Insufficient.
The court must provide the jury with a verdict form on which the jury will indicate if the prosecution has or has not been proved that the value of the checks exceeds $200.
Elements. Pen. Code, § 476a(b).
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Property, § 140.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes Against Property, § 143.04 (Matthew Bender).
Multiple Checks Totaling Over $200—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 $200. 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 $200. (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 separate check as a separate felony count. (People v. Pettit (1964) 230 Cal.App.2d 397, 398 [41 Cal.Rptr. 42].)
(New January 2006)