Return to Non-CALJIC Offenses – Contents
F 18.45 n1 ATM And Credit Card Theft: Fraudulent Charges Are Necessary Element Of Crime Of Altering Access Card Account Information.
(See People v. Steffens (98) 62 CA4th 1273 [73 CR2d 314]. [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-748].)
When “ATM theft” is charged based upon use of a revoked card, the prosecution must prove that the defendant used the card knowing that it had been revoked. In order to establish that the card has been revoked, the prosecution must present evidence that the issuer has (1) suspended or terminated the card used, and (2) written notice thereof [has] been given to the cardholder.
Points and Authorities
(PC 484d(7); People v. Whight (95) 36 CA4th 1143, 1150 [43 CR2d 163].)
Presumption Of Receipt Of Mail (EC 641): PC 484g requires that the issuer of the card has (1) suspended or terminated its use, and (2) provided written notice to the cardholder. (See People v. Whight (95) 36 CA4th 1143, 1150 [43 CR2d 163].) The question of whether instruction upon the presumption of receipt of mail (EC 641) impermissively lightens the prosecution’s burden of proof was recognized but not resolved in Whight. (36 CA4th at 1150, fn 3.)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]