California Penal Code Section 470 - Interpretation

In People v. Ryan (2006) 138 Cal.App.4th 360, the defendant was convicted of four counts of forgery: two under Penal Code section 470, subdivision (a) and two under subdivision (d), which makes it a crime to make, alter, forge, counterfeit or pass as true and genuine any of certain documents. Counts V and VII were based on the defendant signing Cynthia Carter's name to a check and using it to make a purchase at Staples. Counts VI and VIII were based on signing Carter's name to another check and attempting to use it to make a purchase at Gypsy Rose Antiques. (138 Cal.App.4th at p. 364.) The defendant contended she could not be convicted of counts V and VI and the appellate court agreed. (Ibid.) Previously, the various acts constituting forgery were not set forth in different subdivisions, but "were amassed in an undifferentiated, confusing recitation." (People v. Ryan, supra, 138 Cal.App.4th at p. 364.) The cases held there was but one act of forgery even though multiple acts were committed with respect to the same instrument. (Id. at p. 366.) Thus, in People v. Frank (1865) 28 Cal. 507, the court noted forgery could be committed in various ways including falsely making, altering, counterfeiting, and passing. "Now, each of these acts singly, or all together, if committed with reference to the same instrument, constitute but one offense. Whoever is guilty of either one of these acts is guilty of forgery; but if he is guilty of all of them, in reference to the same instrument, he is not therefore guilty of as many forgeries as there are acts, but of one forgery only." (Id. at p. 513.) In People v. Leyshon (1895) 108 Cal. 440 41 P. 480, the defendant forged two names to a promissory note and then passed it as genuine. There was but one offense. (Id. at pp. 442-443.) The rule of one count of forgery per instrument is in accord with the essence of forgery, which is making or passing a false document. "The crime of forgery as denounced by statute (Pen. Code, 470) consists of either of two distinct acts--the fraudulent making of an instrument, such as a false writing thereof, or the uttering of a spurious instrument by passing the same as genuine with knowledge of its falsity citation; and although both acts may be alleged in the conjunctive in the same count in the language of the statute, the offense does not require the commission of both--it is complete when one either falsely makes a document without authority or passes such a document with intent to defraud, and the performance of one or both of these acts with reference to the same instrument constitutes but a single offense of forgery. " (People v. Luizzi (1960) 187 Cal.App.2d 639, 644 9 Cal. Rptr. 842.) The Ryan court found the 1998 revision of Penal Code section 470 did not change the law, but was intended simply to make the laws governing financial crimes more "user friendly." (People v. Ryan, supra, 138 Cal.App.4th at pp. 366-367.) We conclude that the doing of one or more of the proscribed acts, with respect to the same instrument, constitutes but one offense. (Id. at p. 367.) The court vacated the convictions on counts V and VI. (Id. at p. 372.) In People v. Martinez (2008) 161 Cal.App.4th 754 74 Cal. Rptr. 3d 409, the court held forging two signatures on a deed of trust constituted only one count of forgery under Penal Code section 470, subdivision (d). the court made clear its holding was limited to multiple convictions under subdivision (d) of Penal Code section 470 and left open the question whether multiple convictions were permissible under subdivision (a) or (b). (161 Cal.App.4th at p. 762, fn. 3.) Since those subdivisions made it a crime to sign another person's name, "it is at least arguable that these subdivisions are violated each time a person makes and/or passes a forged signature, even if only a single document is involved." (Ibid.)