F 17.17

F 17.17 n1 Great Taking: Distinction Between Amount Taken and Amount Lost (PC 12022.6).

In People v. Crow (93) 6 C4th 952 [26 CR2d 1], the defendant fraudulently obtained $33,000 in AFDC benefits and food stamps. However, the defendant was legitimately entitled to benefits of over $13,000 and, thus, there was a “net overpayment of $19,705.” The Supreme Court held that under PC 12022.6(a), the loss to a county resulting from the defendant’s welfare fraud should be calculated by subtracting the amount the county would have paid had no acts of fraud occurred from the amount it actually paid. Any money that the county would have been obligated to pay had the fraud not occurred is not attributable to the fraud, and thus is not a “loss” arising out of the criminal offense. (Crow, 6 C4th at 961-62.)

F 17.17 n2 Great Taking: Counterfeiting Added To Enhancement (PC 12022.6).

Effective 1/1/94, the great taking enhancement (PC 12022.6) was made applicable to trademark piracy and counterfeiting as set forth in PC 350.

F 17.17 n3 Great Taking: 1992 Amendment Applies Retroactively To All Non-Final Cases.

People v. Nasalga (96) 12 C4th 784 [50 CR2d 88] held that the 1992 amendment to PC 12022.6 which increased the amount of property loss required for the one-year enhancement from $25,000 to $50,000 and increased the loss required for a two-year enhancement from $100,000 to $150,000 applies retroactively to all cases not final at the time the amendment became operative on June 30, 1992.

F 17.17 n4 Improper To Refer To The Prosecution as “The People.”

Reference to the prosecution as “The People” may implicate the defendant’s state and federal constitutional rights to due process and fair trial by jury. (See FORECITE F 0.50d.) Any reference to “The People” should be changed to “The Prosecution.”

F 17.17 n5 Great Taking: Whether PC 1203.044 Applies To Property Other Than Cash.

See People v. Farell (2002) 28 C4th 381 [PC 1203.044 applies to theft of property other than money, such as trade secrets].