3221. Aggravated White Collar Crime
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 defendant engaged in a pattern of related felony conduct that involved the taking of more than $ <insert amount alleged>.
To prove this allegation, the People must prove that:
1. The defendant committed two or more related felonies, specifically <insert names of alleged felonies and descriptions if necessary>;
2. Fraud or embezzlement was a material element of at least two related felonies committed by the defendant;
3. The related felonies involved a pattern of related felony conduct;
4. The pattern of related felony conduct involved the taking of more than $ <insert amount alleged>.
A pattern of related felony conduct means engaging in at least two felonies that have the same or similar purpose, result, principals, victims, or methods of commission, or are otherwise interrelated by distinguishing characteristics, and that are not isolated events.
Related felonies are felonies committed against two or more separate victims, or against the same victim on two or more separate occasions.
[Fraud is a material element of <insert name of alleged felony>.]
[Embezzlement is a material element of <insert name of alleged felony>.]
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.
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].)
If the court has not otherwise instructed the jury on all the elements of the underlying felonies, the court must also give the appropriate instructions on those elements.
It is unclear if the court may instruct the jury that the fraud or embezzlement is a material element of the felonies. The bracketed sentences are provided for the court to use at its discretion.
Enhancement. Pen. Code, § 186.11(a)(1).
3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, § 293.
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 644.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91, Sentencing, § 91.49 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes Against Property, § 143.01[d], [f] (Matthew Bender).
(New January 2006)