Filed 10/2/13 P. v. Guevara CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065010
         Plaintiff and Respondent,
                                                                                  (Tuolumne Super. Ct.
                   v.                                                               No. CRF36992)

BONNIE ELIZABETH GUEVARA,
                                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tuolumne County. James A.
Boscoe, Judge.
         Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

         *   Before Gomes, Acting P.J., Poochigian, J. and Peña, J.
                                      INTRODUCTION
       Appellant/defendant Bonnie Elizabeth Guevara (defendant) was arrested after she
entered a department store, placed merchandise in bags, handed the bags to two
companions, and they returned the merchandise for store credit. Defendant was charged
and convicted of count I, conspiracy to commit commercial burglary (Pen. Code,1
§§ 182, subd. (a)(1), 459); count II, second degree commercial burglary (§ 459); and
count III, petty theft with 10 prior theft-related offenses (§§ 484, 666). She was
sentenced to three years in prison.
       On appeal, defendant argues the court did not properly instruct the jury on the
elements of conspiracy to commit commercial burglary; the court failed to properly
respond to the jury’s questions about conspiracy; and her attorney was prejudicially
ineffective for failing to object to the court’s alleged errors and request supplemental
instructions on that count. Her arguments are based on the assertion that the jury was
never instructed that defendant could only be convicted of conspiracy if defendant and
her confederates agreed to commit commercial burglary before they entered the
department store. As we will explain, the entirety of the instructions demonstrates the
jury was repeatedly instructed on that precise point. Defendant also challenges the
court’s calculation of the restitution fine. We affirm.
                                           FACTS
       On July 11, 2011, defendant entered Kohl’s department store in Sonora. Staci
Ferguson, a loss prevention officer for the store, noticed that defendant was carrying a
Kohl’s shopping bag. Defendant took a shopping cart, walked past the customer service
desk, and went to the back of the store.



       1   All further statutory references are to the Penal Code unless otherwise indicated.



                                               2.
       Ferguson became concerned because defendant did not take the shopping bag to
customer service and produce any merchandise for a return. Ferguson was also
concerned since defendant was using a Kohl’s shopping bag which had an older design.
       Ferguson went into her office and watched defendant on the store’s surveillance
camera. Defendant selected several items of merchandise without regard to price or size.
She draped these items over the front of the shopping cart, and then headed toward the
fitting rooms. Ferguson contacted the fitting room associate to remove all merchandise
out of the stalls before defendant entered any of the fitting rooms.
       Ferguson returned to the sales floor and went to the fitting room area. Defendant
arrived at the fitting rooms, entered a stall, and was the only customer. Ferguson heard
the sound of a shopping bag rustling inside defendant’s stall. After seven or eight
minutes, defendant walked out of the stall and handed some merchandise to Ferguson,
indicating she was not going to select the items. Ferguson looked into defendant’s cart
and saw two Kohl’s shopping bags. Ferguson checked the stall, and defendant had not
left anything behind.
       Defendant left the fitting room and met a woman in the store. She was later
identified as codefendant Traci Wood, a friend of defendant. Another store employee
advised Ferguson that defendant and Wood were walking together. Ferguson also saw a
man walking with defendant and Wood. He was later identified as codefendant Matthew
Guevara (Matthew), defendant’s adult son.2
       At one point while she was in the store, defendant went into the bedding
department. Ferguson testified that defendant selected expensive brands of sheets and
pillowcases.

       2   Given the similarity in last names, we will refer to codefendant Matthew
Guevara as “Matthew” to avoid confusion; no disrespect is intended. According to the
probation report, defendant was 60 years old and Matthew was 34 years old at the time of
the trial.



                                             3.
       Defendant and Wood walked along the store’s back wall, where it was hard to
watch them. Ferguson saw defendant hand a Kohl’s shopping bag to Matthew. The bag
contained a set of sheets and two sets of pillowcases. Matthew handed the bag to Wood.
       Wood took the bag to customer service and asked to return the sheets and
pillowcases even though she did not have a receipt. Matthew was standing with her at
the counter. Kohl’s allows customers to return items without a receipt and receive store
credit, if they provide a driver’s license for identification. Wood presented her driver’s
license. The retail value of the merchandise was $349.97. However, Wood only received
a store credit for $187.66, based on the sales price of the merchandise on that day.
       As Matthew and Wood left the return counter, Ferguson approached them and
identified herself as a store security officer. She asked to speak to them about the return.
       Ferguson believed Matthew and Wood had been on their way to meet defendant.
She also believed defendant saw her speak to Matthew and Wood. As Ferguson spoke to
them, defendant walked through the store, took items out of her shopping cart, and placed
them back on the shelves. Defendant went to the juniors department, took a Kohl’s
shopping bag full of merchandise out of her cart, and slid it under a store fixture.
       Defendant walked out of the store and went to her vehicle. Defendant had been in
the store for over one hour, and she never made any purchases.
The investigation
       Ferguson spoke to Matthew and Wood while they were still in the store and asked
about the return of the sheets and pillowcases. Matthew said they received the items as
gifts. After a few seconds, Wood said defendant pressured her into performing the
fraudulent return, and they had performed the same transaction before. Wood said
defendant picked up the merchandise from the sales floor and passed it to her.
       Deputies from the Tuolumne County Sheriff’s Department responded to the store.
A deputy asked Matthew about the fraudulent return of the sheets. Matthew said he did
not know anything.

                                             4.
          The deputies contacted defendant outside the building. Defendant said she had
driven from Tracy to Sonora to go to the casino with Matthew and Wood. Defendant
said Wood had received linen as gifts and decided to exchange the merchandise at
Kohl’s. Defendant had some Kohl’s bags in a cart. There were some T-shirts in one of
the bags, with Kohl’s price tags on them. Defendant said she had purchased the shirts at
another Kohl’s store, and she was going to return them. Defendant did not have a receipt
for the shirts.
          On further questioning, defendant said she took some sheets, placed them in the
Kohl’s shopping bag and cart, gave the bag to Matthew and Wood, and told them to
return the items. Defendant knew Kohl’s allowed returns without receipts for store
credit.
                                    DEFENSE EVIDENCE
          Wood testified they drove to the casino in Sonora, then stopped at the store so
defendant could return previously purchased merchandise. Wood testified they did not
have any prearranged plan to take merchandise and return it for store credit, or commit
any type of theft.
          Wood testified that defendant went into the store, and Wood and Matthew went in
later. Defendant gave a shopping bag with sheets to Wood and asked her to “take them
back.” Wood assumed defendant meant for her to return the items for store credit, but
defendant never explained what she meant. Wood knew defendant had brought some
items into the store in the shopping bag, but she did not know the contents of the bag.
          Wood testified that when she was later detained in the store’s security office, she
saw defendant on the surveillance monitor as she placed items back onto the shelves.
Wood suddenly realized that defendant had asked her to return the sheets to the shelves
instead of getting store credit.
          On cross-examination, Wood denied making statements attributed to her—that
defendant told her to return the items without a receipt, defendant did not have the sheets

                                                5.
before she entered the store, or that defendant pressured her into returning the items and
she had done it before. Wood said she lied to Ferguson about the sheets being a gift,
because she did not want to get defendant into trouble.
       In rebuttal, Deputy Brouillette testified about Wood’s prior statements. Wood said
she entered the store with defendant and Matthew. They walked around different areas of
the store and then met defendant. Defendant gave a shopping bag to Wood and Matthew
and told them to return the items without a receipt. Wood said defendant did not have the
sheets before she went into the store. Wood admitted she knew she was returning stolen
property.
                               PROCEDURAL HISTORY
       Defendant and codefendants Matthew and Wood were charged with count I,
conspiracy to commit commercial burglary and count II, second degree commercial
burglary. Defendant and Matthew were separately charged with count III, petty theft
with prior theft-related offenses, with the allegations that defendant had 10 prior theft-
related convictions, and Matthew had five prior theft-related convictions. Defendant
pleaded not guilty.
       Wood pleaded guilty to conspiracy and second degree burglary. Defendant and
Matthew were tried together before a jury, and Wood testified for the defense.
The instructions3
       As to count I, the court instructed the jury with CALCRIM No. 415, as follows:

              “I’ve explained that[] a defendant may be guilty of a crime if he or
       she either [commits] the crime or aids and abets the crime. He or she may
       also be guilty if he or she is a member of a conspiracy.


       3  We must review the instructions at length because, as we will discuss in section
I, post, defendant asserts the jury was never instructed that she could not be convicted of
conspiracy unless defendant and her confederates agreed to commit commercial burglary
before they entered the store.



                                             6.
       “The defendants are charged in Count I with conspiracy to commit
commercial burglary .… To prove a defendant is guilty of this crime, the
People must prove that, number one, the defendant intended to agree and
did agree with one or more of the other defendants to commit commercial
burglary; number two, at the time of the agreement, the defendant and one
or more members of the alleged conspiracy intended that one or more of
them would commit commercial burglary; number three, one … of the
defendants or all of them committed at least one of the following alleged
overt act[s] to accomplish commercial burglary:

       “Overt act number one, drove a vehicle to Kohl’s; overt act number
two, entered Kohl’s with empty Kohl’s shopping bags; number three, overt
act number three, selected items in Kohl’s and concealed them in bags;
overt act four, returned items that were not paid for without a receipt and
obtained store credit; number five…, at least one of these acts was
committed in California.

        “To decide whether a defendant committed all of these acts, consider
all of the evidence presented about the acts. To decide whether the
defendant and one or more of the alleged members of the conspiracy
intended to commit commercial burglary, please refer to the separate
instruction that I will give you on that crime.

       “The People must prove that the members of the alleged conspiracy
had an agreement and intent to commit commercial burglary. The People
do not have to prove that any of the members of the alleged conspiracy
actually met or came to a detailed or formal agreement to commit that
crime. An agreement may be inferred from conduct if you conclude that
members of the alleged conspiracy acted with a common purpose to
commit the crime.” (Italics added.)

As to count II, commercial burglary, the court gave CALCRIM No. 1700:

       “The defendants … are charged in Count II with commercial
burglary ….

       “To prove that the defendant is guilty of this crime, the people must
prove that, number one, the defendant entered a commercial building; and
number two, when he or she entered a commercial building, he or she
intended to commit theft. [¶] … [¶]

       “A burglary is committed if the defendant entered with the intent to
commit theft. The defendant does not … need to have actually committed
theft as long as he or she entered with the intent to do [so]….


                                     7.
              “The People alleged that the defendants intended to commit theft.
       You may not find any defendant guilty of burglary unless all of you agree
       he or she intended to commit that crime at the time of the entry.” (Italics
       added.)
The jury’s questions
       During deliberations, the jury sent a note to the court which contained three
questions. The instant record does not contain any discussions between the court and the
parties as to the potential responses to these questions.
       The court brought the jurors into the courtroom and addressed their first
question—a request to hear a certain portion of Staci Ferguson’s questions. The court
stated it would provide that information to the jury.
       The court then turned to the jury’s second and third questions, which addressed the
conspiracy and burglary charges:

               “The second question, Could you explain conspiracy, in that does
       the act have to be planned before entering the store?

             “Third question is, A note we had was conspiracy can be an
       agreement from conduct. Could we get clarification regarding this phrase?

               “Well, ladies and gentlemen, those last two questions are dealt with
       in the instructions number 415, which defines conspiracy. And you are
       going to have to rely on the words of that instruction to reach conclusions
       as to those two questions. And I think the answers—I think your questions
       will be answered it you reread instruction No. 415, which it doesn’t have
       the caption on it, but it’s the definition of conspiracy and the elements
       necessary to complete that crime.” (Italics added.)
       None of the parties objected to the court’s responses to the jury’s questions about
conspiracy. The jury did not ask any further questions.
Verdict and sentence
       Defendant and Matthew were convicted of the three counts as charged. Defendant
admitted the 10 alleged prior convictions. Matthew admitted two prior convictions, and
the court dismissed duplicative allegations.



                                               8.
       Defendant was sentenced to the upper term of three years for count III; the court
stayed the terms imposed for counts I and II. The instant record is silent as to Matthew’s
sentence.
                                           DISCUSSION
I.     Conspiracy instructions
       Defendant argues the court failed to correctly instruct the jury on the elements of
count I, conspiracy to commit commercial burglary. Defendant asserts that CALCRIM
No. 415 failed to clarify when the parties had to enter into a conspiracy, and that the
conspiracy had to occur before the parties entered the store. Defendant asserts the
instruction error was exacerbated by the court’s alleged failure to comply with its legal
duty to respond to the jury’s questions about the timing of a conspiracy, and offer
supplemental instructions to clarify the point.
       We note that defendant did not object to the court’s instructions on conspiracy or
its responses to the jury’s questions. Defendant asserts that objections were not necessary
since the alleged instruction errors affected her substantial rights. (§ 1259; People v.
Franco (2009) 180 Cal.App.4th 713, 719-720.)
       In the alternative, defendant argues her attorney was prejudicially ineffective for
failing to object to the conspiracy instructions, object to the court’s responses to the
jury’s questions, and request supplemental instructions on those points. Defendant
argues the alleged errors were prejudicial since the evidence showed that defendant,
Matthew, and Wood separately entered the store and were not acting together, but the
instructions allowed the jury to convict defendant based on the conclusion that the
conspiracy occurred after they entered the store.
       We thus proceed to the merits of defendant’s arguments.
       A.     Review of jury instructions
       “It is well established in California that the correctness of jury instructions is to be
determined from the entire charge of the court, not from a consideration of parts of an

                                              9.
instruction or from a particular instruction. [Citations.] ‘[T]he fact that the necessary
elements of a jury charge are to be found in two instructions rather than in one instruction
does not, in itself, make the charge prejudicial.’ [Citation.] ‘The absence of an essential
element in one instruction may be supplied by another or cured in light of the instructions
as a whole.’ [Citation.]” (People v. Burgener (1986) 41 Cal.3d 505, 538-539,
disapproved on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 746.) We may
not judge a single jury instruction in artificial isolation, but must view it in the context of
the charge and the entire trial record. (People v. Haskett (1990) 52 Cal.3d 210, 235.)
       “An appellate court cannot set aside a judgment on the basis of instructional error
unless, after an examination of the entire record, the court concludes that the error has
resulted in a miscarriage of justice. [Citation.] A miscarriage of justice occurs only
when it is reasonably probable that the jury would have reached a result more favorable
to the appellant absent the error. [Citations.]” (People v. Moore (1996) 44 Cal.App.4th
1323, 1331.)
       B.      The jury was correctly instructed
       Based on these well-settled legal principles, we find the court correctly instructed
the jury on conspiracy to commit commercial burglary. First, there is no dispute that the
conspiracy to commit commercial burglary must have been formed before defendant and
her codefendants entered the department store. “The necessary elements of a criminal
conspiracy are: (1) an agreement between two or more persons; (2) with the specific
intent to agree to commit a public offense; (3) with the further specific intent to commit
that offense; and (4) an overt act committed by one or more of the parties for the purpose
of accomplishing the object of the agreement or conspiracy. [Citations.]” (People v. Liu
(1996) 46 Cal.App.4th 1119, 1128.) “From the very nature of the stealth generally
involved in the crime of conspiracy, it is not necessary to prove that the parties came
together and reached a formal agreement [citation].” (People v. Massey (1957) 151



                                              10.
Cal.App.2d 623, 652.) Conspiracies are almost always proven by circumstantial
evidence. (Ibid.)
       “Burglary is defined as the entry of a structure with the intent to commit theft or
any felony. [Citation.] Proof of intent is rarely susceptible of direct proof and may be
inferred from the circumstances of the case. [Citation.]” (People v. Moody (1976) 59
Cal.App.3d 357, 363.)
       Second, the entirety of the instructions clearly demonstrates the jury was
repeatedly and correctly instructed on these precise points. In CALCRIM No. 415 on
conspiracy, the jury was instructed that the People had to prove as one of the elements
that “the defendant intended to agree and did agree with one or more of the other
defendants to commit commercial burglary.” This instruction defined two of the overt
acts as involving conduct which occurred before they entered the building—driving to the
store and entering with empty shopping bags.
       Most importantly, CALCRIM No. 415 instructed the jury that the People had to
prove “the members of the alleged conspiracy had an agreement and intent to commit
commercial burglary,” and that “[t]o decide whether the defendant and one or more of the
alleged members of the conspiracy intended to commit commercial burglary, please refer
to the separate instruction that I will give you on that crime.”
       The conspiracy instruction expressly directed the jury to the instruction on
commercial burglary to determine the elements of conspiracy. CALCRIM No .1700 on
commercial burglary clearly stated: “To prove that the defendant is guilty of this crime,
the people must prove that, number one, the defendant entered a commercial building;
and number two, when he or she entered a commercial building, he or she intended to
commit theft.” It also stated that a burglary is committed “if the defendant entered with
the intent to commit theft. The defendant does not … need to have actually committed
theft as long as he or she entered with the intent to do [so]…. [¶] … You may not find



                                             11.
any defendant guilty of burglary unless all of you agree he or she intended to commit that
crime at the time of the entry.” (Italics added.)
       The jury was thus repeatedly and correctly instructed that a conspiracy to commit
commercial burglary had to exist before defendant entered the store. The instructions
were not erroneous.
       C.     The court’s duty to respond to jury questions
       Defendant further argues the court abused its discretion when it failed to clarify
the conspiracy instructions in response to the jury’s two questions about that count. We
again note defendant failed to object to the court’s responses, but address the issue given
her alternate ineffective assistance claim.
       Defendant’s argument is based on section 1138, which provides in relevant part:
“After the jury have retired for deliberation,… if they desire to be informed on any point
of law arising in the case, they must require the officer to conduct them into court. Upon
being brought into court, the information required must be given in the presence of, or
after notice to, the prosecuting attorney, and the defendant or his counsel, or after they
have been called.” (§ 1138.)
       “The court has a primary duty to help the jury understand the legal principles it is
asked to apply. [Citation.] This does not mean the court must always elaborate on the
standard instructions. Where the original instructions are themselves full and complete,
the court has discretion under section 1138 to determine what additional explanations are
sufficient to satisfy the jury’s request for information. [Citation.] Indeed, comments
diverging from the standard are often risky. [Citation.]” (People v. Beardslee (1991) 53
Cal.3d 68, 97.)
       “Jury questions can present a court with particularly vexing challenges. The
urgency to respond with alacrity must be weighed against the need for precision in
drafting replies that are accurate, responsive, and balanced. When a question shows the
jury has focused on a particular issue, or is leaning in a certain direction, the court must

                                              12.
not appear to be an advocate, either endorsing or redirecting the jury’s inclination.
Although comments diverging from the standard should be embarked on with care, a trial
court must do more than figuratively throw up its hands and tell the jury it cannot help. It
must consider how it can best aid the jury and decide whether further explanation is
desirable, or whether the reiteration of previously given instructions will suffice.
[Citation.]” (People v. Moore, supra, 44 Cal.App.4th 1323, 1331, citing People v.
Beardslee, supra, 53 Cal.3d 68, 97; italics added.)
       In this case, the court fully satisfied its duties under section 1138 and did not abuse
its discretion when it responded to the jury’s two questions. As we have explained, the
jury in this case was repeatedly instructed on the precise point raised by defendant—that
defendant and her codefendants had to agree to commit commercial burglary before they
entered the department store. The court did not “throw up its hands” and fail to respond
to the jury’s questions. Instead, it instructed the jury to again review CALCRIM No. 415
on the elements of conspiracy. This instruction expressly directed the jury to refer to the
instruction on commercial burglary, and the two instructions correctly set forth the legal
elements for conspiracy to commit that offense. The court’s decision to reiterate the
previously given and correct instructions was not an abuse of discretion.
       For the same reasons, we reject defendant’s alternative ineffective assistance
argument. Indeed, the record suggests defense counsel may not have objected to the
court’s instructions or responses to the jury’s questions since the court properly referred
the jury to the correct instructions. “Defense counsel does not render ineffective
assistance by declining to raise meritless objections. [Citation.]” (People v. Ochoa
(2011) 191 Cal.App.4th 664, 674, fn. 8.)
II.    Restitution fine
       Defendant next contends the court erroneously calculated the $720 restitution fine
based on an amended version of section 1202.4 that was not applicable to her case.



                                             13.
Defendant argues the court violated the ex post facto provisions of the federal and state
constitutions when it allegedly relied on the wrong statute.
       A.     Background
       Defendant was charged with committing three felonies in July 2011. She was
convicted in March 2012. The probation report recommended imposition of a $720
restitution fine pursuant to section 1202.4, without comment or explanation.
       On May 15, 2012, the court conducted the sentencing hearing. It followed the
probation report’s recommendation and imposed a restitution fine of $720 pursuant to
section 1202.4, subdivision (b), without further comment. The court retained jurisdiction
for victim restitution. Defendant did not object.
       B.     Analysis
       At the time that defendant committed the offenses in July 2011, former section
1202.4, subdivision (b)(1) provided:

       “(b) In every case where a person is convicted of a crime, the court shall
       impose a separate and additional restitution fine, unless it finds compelling
       and extraordinary reasons for not doing so, and states those reasons on the
       record. [¶] (1) The restitution fine shall be set at the discretion of the court
       and commensurate with the seriousness of the offense, but shall not be less
       than two hundred dollars ($200), and not more than ten thousand dollars
       ($10,000), if the person is convicted of a felony....” (Stats. 2011, ch. 45,
       § 1.)
       The calculation of restitution fines in section 1202.4, subdivision (b)(1) was
amended, effective January 1, 2012, as follows:

       “The restitution fine shall be set at the discretion of the court and
       commensurate with the seriousness of the offense, [but] shall not be less
       than two hundred forty dollars ($240) starting on January 1, 2012....”
       (Stats. 2011, ch. 358, § 1, italics added.)
       Based on this amendment, defendant supposes the court calculated the $720
restitution fine by erroneously relying on the version of section 1202.4, subdivision (b)(1)




                                             14.
that was not applicable to crimes committed before January 1, 2012, by multiplying $240
by her three convictions.
       We again note defendant did not object to the court’s imposition of the restitution
fine or raise her ex post facto argument below. The rule of forfeiture is applicable to ex
post facto claims, particularly where the alleged error could easily have been corrected if
the issue had been raised at the sentencing hearing. (People v. White (1997) 55
Cal.App.4th 914, 917.)
       In any event, the trial court imposed a restitution fine in this case that was well
within the range of fines authorized at the time of the defendant’s commission of the July
2011 offenses. There is nothing in the record to support defendant’s supposition that the
court relied on the most recent version of section 1202.4, subdivision (b)(1) when it
imposed the $720 restitution fine. The court merely imposed the fine without comment.
Since the restitution fine was in an amount authorized by the statute that was in effect at
the time of defendant’s commission of the offense, and there is nothing in the record
indicating that the trial court imposed the fine pursuant to the amended version of the
statute, defendant’s ex post facto claim fails.
                                          DISPOSITION
       The judgment is affirmed.




                                             15.
