Case presented with stolen checkbook and at least 10 forgeries passed from that book of checks. Is each separate check an "item of identifying information" so that proof of possession, use, or transfer of those 10 checks (items) can make this enterprise a 2nd degree felony? PC 32.51 How about possession of the remaining 24 stolen checks after one forgery has been passed? Thoughts?
Well, I'm not at work and don't have my usual materials in front of me but I do have a few quick thoughts that might be helpful.
(1) the check contains, but is not itself identifying info, so if you go this route make sure you properly allege the identifying info: such as the account number, routing number on the check, the victim's address, DOB, SSN, address or DL number. Its possible that each check could contain multiple pieces of identifying information that the defendant possessed, obtained, or used. I'm not sure if there is case law on that one way or the other but that seems a straightforward interpretation of the statute.
(2) Are these checks all from the same victim? If there are at least three different victims there is a presumption of intent under fraudulent use.
(3) The passing of the forged checks, assuming you have the evidence to make the proper showing of proof, could go to the required intent to defraud or harm while possessing the non forged checks though you'd have to have the facts at your disposal (timing, method, etc)to confidently put forth that argument.
I've not actually tried charging in that manner under those facts though. Let us know how it goes.
If the case goes to trial you suddenly need more witnesses and a different organization and presentation of proof to hammer the issues related to your new elements.
Having an F2 rather than a bunch of state jails is nice in that it may be a more suitable punishment range for the conduct you're describing. But you've still got to prove it all up in trial, including likely calling the owners of the information.
See Penal Code 32.24.
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