California Criminal Jury Instructions (CALCRIM) (2017)

3220. Amount of Loss

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H. OTHER ENHANCEMENTS
3220.Amount of Loss (Pen. Code, § 12022.6)
If you find the defendant guilty of the crime[s] charged in Count[s]
[,] [or of attempting to commit (that/those) crime[s]][ or the
lesser crimes[s] of <insert lesser offense[s]>], you must
then decide whether the People have proved the additional allegation
that the value of the property (taken[,]/ [or] damaged[,]/ [or] destroyed)
was more than $ <insert amount alleged>.
To prove this allegation, the People must prove that:
1. In the commission [or attempted commission] of the crime, the
defendant (took[,]/ [or] damaged[,]/ [or] destroyed) property;
2. When the defendant acted, (he/she) intended to (take[,]/ [or]
damage[,]/ [or] destroy) the property;
AND
3. The loss caused by the defendant’s (taking[,]/ [or] damaging[,]/
[or] destroying) the property was greater than $ <insert
amount alleged>.
[If you find the defendant guilty of more than one crime, you may add
together the loss suffered by each victim in Count[s]
<specify all counts that jury may use to compute cumulative total loss> to
determine whether the total losses to all the victims were more than
$<insert amount alleged> if the People prove that:
A. The defendant intended to and did (take[,]/ [or] damage[,]/ [or]
destroy) property in each crime;
AND
B. The losses arose from a common scheme or plan.]
[The value of property is the fair market value of the property.]
[When computing the amount of loss according to this instruction, do
not count any taking, damage, or destruction more than once simply
because it is mentioned in more than one count, if the taking, damage,
or destruction mentioned in those counts refers to the same taking,
damage, or destruction with respect to the same victim.]
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 the allegation has not been proved.
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0107
New January 2006; Revised August 2009, April 2010, August 2016
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction on the enhancement when
charged. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147
L.Ed.2d 435].)
The court must insert the alleged amounts of loss in the blanks provided so that
the jury may first determine whether the statutory threshold amount exists for any
single victim, and then whether the statutory threshold amount exists for all victims
or for all losses to one victim cumulatively.
AUTHORITY
• Enhancement. Pen. Code, § 12022.6 [in effect until January 1, 2018 unless
otherwise extended].
• Value Is Fair Market Value. People v. Swanson (1983) 142 Cal.App.3d 104,
107–109 [190 Cal.Rptr. 768].
• Definition of “Loss” of Computer Software. Pen. Code, § 12022.6(e).
• Defendant Need Not Intend to Permanently Deprive Owner of
Property. People v. Kellett (1982) 134 Cal.App.3d 949, 958–959 [185
Cal.Rptr. 1].
• Victim Need Not Suffer Actual Loss. People v. Bates (1980) 113 Cal.App.3d
481, 483–484 [169 Cal.Rptr 853]; People v. Ramirez (1980) 109 Cal.App.3d
529, 539–540 [167 Cal.Rptr. 174].
• Defendant Need Not Know or Reasonably Believe Value of Item Exceeded
Amount Specified. People v. DeLeon (1982) 138 Cal.App.3d 602, 606–607
[188 Cal.Rptr. 63].
• Great Taking Enhancement Encompasses Liability of Aiders and
Abettors. People v. Acosta (2014) 226 Cal.App.4th 108, 123–126 [171
Cal.Rptr.3d 774].
Secondary Sources
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 378.
5Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 727.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.45 (Matthew Bender).
RELATED ISSUES
“Take”
As used in Penal Code section 12022.6, “take” does not have the same meaning as
in the context of theft. (People v. Kellett (1982) 134 Cal.App.3d 949, 958–959 [185
Cal.Rptr. 1].) The defendant need not intend to permanently deprive the owner of
the property so long as the defendant intends to take, damage, or destroy the
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property. (Ibid.) Moreover, the defendant need not actually steal the property but
may “take” it in other ways. (People v. Superior Court (Kizer) (1984) 155
Cal.App.3d 932, 935 [204 Cal.Rptr. 179].) Thus, the enhancement may be applied
to the crime of receiving stolen property (ibid.) and to the crime of driving a stolen
vehicle (People v. Kellett,supra, 134 Cal.App.3d at pp. 958–959).
“Loss”
As used in Penal Code section 12022.6, “loss” does not require that the victim
suffer an actual or permanent loss. (People v. Bates (1980) 113 Cal.App.3d 481,
483–484 [169 Cal.Rptr. 853]; People v. Ramirez (1980) 109 Cal.App.3d 529,
539–540 [167 Cal.Rptr. 174].) Thus, the enhancement may be imposed when the
defendant had temporary possession of the stolen property but the property was
recovered (People v. Bates,supra, 113 Cal.App.3d at pp. 483–484), and when the
defendant attempted fraudulent wire transfers but the bank suffered no actual
financial loss (People v. Ramirez,supra, 109 Cal.App.3d at pp. 539–540).
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