I’m charged with theft or fraud.   Am I going to be convicted? What is my defense?

 

The first place to look when charged with a crime is the California Jury Instructions, or CALCRIM. These jury instructions are what judges and juries use to decide whether or not to vote guilty or not guilty at trial. Although the vast majority of cases settle or resolve with a negotiated plea bargain, it is extremely important to know what the prosecutor must prove at trial in order to know precisely how to defend against these charges long before trial begins.

 

There are various theft and/or fraud related offenses that a person can be charged with in California. Below are jury instructions for just some of these offenses:

 

  1. Theft by Larceny

The defendant is charged [in Count ______] with [grand/petty] theft [by larceny].

To prove that the defendant is guilty of this crime, the People must prove that:

  1. The defendant took possession of property owned by someone else;
  2. The defendant took the property without the owner’s [or owner’s agent’s] consent;
  3. When the defendant took the property (he/she) intended (to deprive the owner of it permanently/ [or] to remove it from the owner’s [or owner’s agent’s] possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property);

AND

  1. The defendant moved the property, even a small distance, and kept it for any period of time, however brief.
[An agent is someone to whom the owner has given complete or partial authority and control over the owner’s property.] [For petty theft, the property taken can be of any value, no matter how slight.]

 

 

2000. Insurance Fraud: Fraudulent Claims

The defendant is charged [in Count ______] with insurance fraud committed by fraudulent claim.

To prove that the defendant is guilty of this crime, the People must prove that:

<Alternative 1A—presented fraudulent claim>

[1. The defendant (presented/ [or] caused to be presented) a false or fraudulent claim for payment for a loss or injury;]

<Alternative 1B—presented fraudulent claim for vehicle theft or damage>

[1. The defendant falsely or fraudulently claimed payment for a loss due to (theft[,]/ [or] destruction[,]/ [or] damage[,]/ [or] conversion) of (a motor vehicle[,]/ [or] a motor vehicle part[,]/ [or] contents of a motor vehicle);]

<Alternative 1C—writing to be used for fraudulent claim>

[1. The defendant (prepared[,]/ [or] made[,]/ [or] signed or subscribed) a document with the intent to (present or use it/ [or] allow it to be presented) to support a false or fraudulent claim;]

<Alternative 1D—made fraudulent claim for health-care benefits>

[1. The defendant (made/ [or] caused to be made) a false or fraudulent claim for payment of a health-care benefit;]

<Alternative 1E—submitted claim for health-care benefit not used>

[1. The defendant presented a claim for a health-care benefit that was not used by [or on behalf of] the person named in the claim;]

<Alternative 1F—presented claim for health-care benefit undercharges>

[1. The defendant claimed payment for undercharges for health-care benefits for a specific person without presenting for reconciliation, at that same time, any known overcharges for benefits for the same person;]
  1. The defendant knew that the claim was false or fraudulent;

AND

  1. When the defendant did that act, (he/she) intended to defraud.

Someone intends to defraud if he or she intends to deceive another person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/ [or] something [else] of value), or to cause damage to, a legal, financial, or property right.

[For the purpose of this instruction, a person includes (a governmental agency/a corporation/a business/an association/the body politic).] [It is not necessary that anyone actually be defrauded or actually suffer a financial, legal, or property loss as a result of the defendant’s acts.]

A person claims, makes, or presents a claim for payment by requesting payment under a contract of insurance for (a/an) ((loss/ [or] injury)/health-care benefit).

[A claim for payment of a health-care benefit includes a claim submitted by or on behalf of the provider of a workers’ compensation health benefit defined in the Labor Code.] [Conversion of property means interfering with someone else’s property, without authorization or justification, and depriving the owner of use and possession of the property.]

 

 

 

Whether or not you will be convicted of these charges largely depends on mounting a strong defense. We at The Hong Firm are committed to building a fierce defense for you – always in anticipation of trial.