Filed 2/27/15 P. v. Crespo CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065318

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD251158)

JUAN PABLO CRESPO,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Peter L.

Gallagher, Judge. Affirmed.



         Michael P. Goldstein, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stacy

Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
                                    INTRODUCTION

       A jury convicted Juan Pablo Crespo of four counts of burglary (Pen. Code,

§ 459),1 two counts of grand theft (§ 487, subd. (a)), and one count of using multiple

checks knowing he had insufficient funds in the bank for payment of the checks (§ 476a,

subd. (a)). Crespo admitted he committed these crimes while he was out of custody on

bail in another criminal case (§ 12022.1, subd. (b)). The court sentenced Crespo to two

years and eight months in county jail. On appeal, Crespo contends the court committed

prejudicial error by instructing the jury regarding the use of circumstantial evidence with

CALCRIM Nos. 224 and 225. Crespo contends these form instructions are not consistent

with authority stating circumstantial evidence must be inconsistent with any rational

conclusion other than guilt, i.e., irreconcilable with innocence. (See People v. Bender

(1945) 27 Cal.2d 164, 175-176 (Bender), disapproved on other grounds in People v.

Lasko (2000) 23 Cal.4th 101, 110.) We conclude the instructions given correctly state

the law and we affirm the judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND

                                             A

       In August 2011 Crespo opened a savings account and a checking account at a

credit union. Over the next several months, he made some deposits, but also had

numerous checks returned for insufficient funds. With the exception of the first month,




1      All further statutory references are to the Penal Code unless otherwise indicated.
                                             2
the ending balance of the checking account was overdrawn every month until the account

was closed.

          The last deposit made in the account was on April 2, 2012, in the amount of

$690.70. That same month, Crespo enrolled in an overdraft protection program to cover

his overdrafts up to $500. Under the terms of this program, he was required to bring the

account current within 30 days when he used the overdraft protection. By mid-April, the

account was overdrawn by $1,230.84.

          On May 2, 2012, Crespo made two balance inquiries at an automatic teller

machine. He also attempted to withdraw money from his account and was denied for

insufficient funds. His account was overdrawn by more than $1,200.00. In mid-May,

Crespo again made multiple attempts to withdraw funds, which were denied due to

insufficient funds. The same month, multiple checks were returned for insufficient funds.

Each time a check is returned for insufficient funds, the account holder is notified by

letter.

                                              B

          On May 28, 2012, Crespo submitted two checks, one for $376 and another for

$838.24, seemingly to pay for merchandise he took from Torrey Pines Pro Shop (Pro

Shop) in two separate transactions. At the time of these transactions, Crespo's checking

account was overdrawn by more than $1,400.00.

          When both checks were returned for insufficient funds, the accountant at the Pro

Shop left voice mail messages and sent demand letters to Crespo. Crespo did not respond



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to these inquiries and the letters were returned as undeliverable. The Pro Shop has never

been paid for the merchandise.

                                             C

       The credit union closed Crespo's account in mid-June 2012. He was notified of

the closure by letter. In July, Crespo took clothing from Gary's Studio (the Studio) in two

separate transactions, again ostensibly paying by two checks ($1,881.62 on July 16 and

$965.87 on July 17). The checks were returned as dishonored. The accountant from the

Studio called Crespo. Crespo returned one call and left a message saying he was aware

of the situation. He apologized and promised to call back the Studio. He did not call

back, however, and he failed to respond to additional calls. A demand letter sent to

Crespo by certified mail was returned as undeliverable. The Studio did not recover the

$2,859.49 lost in these transactions.

                                             D

       A little over a year earlier, in April 2011, Crespo wrote three checks from another

banking institution to obtain possession of a car from a car dealership. Crespo initially

presented a $10,000 check for the vehicle before going out of town. Upon his return, he

presented two additional checks for the balance of the vehicle and took possession of the

vehicle. When the first check for $10,000 was returned for insufficient funds, the

dealership telephoned Crespo's banking institution and learned there were insufficient

funds to cover the other checks as well. The dealership attempted to contact Crespo by

telephone, e-mail and in person. Crespo did not repay the dealership and did not return



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the car. The car was eventually recovered by law enforcement officers in another part of

the state.

                                              E

       Crespo's defense was that even though Crespo did not make good financial

decisions, the evidence did not show he had the requisite intent to defraud at the time of

the transactions to be convicted of the charged crimes. Defense counsel argued, "the

circumstantial evidence actually points to innocence." Counsel argued Crespo's attempt

to obtain discounts at the Pro Shop and his selection of sale items at the Studio, suggested

he intended to pay. Defense counsel also argued his multiple balance inquiries in May

2012, before the Pro Shop transactions, suggested he was expecting money to be

deposited in his account and, therefore, he could have thought money would be in his

account when the checks he wrote cleared.

                                              F

       After deliberating for less than two hours, the jury found Crespo guilty on all

counts. The court sentenced Crespo to an aggregate term of two years and eight months

in county jail based on concurrent middle terms for two counts of grand theft and a

consecutive two-year term for the out-on-bail enhancement. Sentencing for the

remaining counts was stayed pursuant to section 654, subdivision (a).

                                       DISCUSSION

       Crespo contends evidence of his intent to commit the charged crimes was

circumstantial and, relying on Bender, supra, 27 Cal.2d 164, he contends "[t]he trial court

committed prejudicial error by failing to instruct the jury that it could not convict unless

                                              5
the circumstantial evidence was inconsistent with any rational conclusion other than

guilt." Crespo specifically challenges the adequacy of pattern jury instructions,

CALCRIM Nos. 224 and 225, regarding the use of circumstantial evidence.

                                               I

       Preliminarily, the People contend Crespo forfeited his claim of instructional error

by failing to raise it in the trial court. As a general rule, " '[a] party may not argue on

appeal that an instruction correct in law was too general or incomplete, and thus needed

clarification, without first requesting such clarification at trial." (People v. Livingston

(2012) 53 Cal.4th 1145, 1165.)

       Crespo does not dispute he did not object to the jury instructions, but contends he

was not required to do so because the instructions are not correct in law. "The rule of

forfeiture does not apply . . . if the instruction was an incorrect statement of the law

[citation], or if the instructional error affected the defendant's substantial rights." (People

v. Franco (2009) 180 Cal.App.4th 713, 719.) " 'Ascertaining whether claimed

instructional error affected the substantial rights of the defendant necessarily requires an

examination of the merits of the claim—at least to the extent of ascertaining whether the

asserted error would result in prejudice if error it was." (People v. Ramos (2008) 163

Cal.App.4th 1082, 1087.) As we explain in the section below, we conclude the

instructions given correctly stated the law. Therefore, Crespo forfeited his claim of

instructional error by failing to request a clarifying instruction.




                                               6
                                              II

         " 'An appellate court reviews the wording of a jury instruction de novo and

assesses whether the instruction accurately states the law.' [Citation] ' " '[T]he

correctness of jury instructions is to be determined from the entire charge of the court, not

from a consideration of parts of an instruction or from a particular instruction.' " '

[Citation.] Taking into account the instructions as a whole and the trial record, we

'determine whether there is a reasonable likelihood the jury applied the instruction in an

impermissible manner.' [Citation.] We presume that jurors are intelligent and capable of

correctly understanding, correlating, applying, and following the court's instructions."

(People v. Acosta (2014) 226 Cal.App.4th 108, 119.) "Instructions should be interpreted,

if possible, so as to support the judgment rather than defeat it if they are reasonably

susceptible to such interpretation." (People v. Martin (2000) 78 Cal.App.4th 1107,

1112.)

         In Bender, supra, 27 Cal.2d 164, the Supreme Court stated in cases involving the

use of circumstantial evidence, a jury should be instructed with the principle that " 'to

justify a conviction, the facts or circumstances must not only be entirely consistent with

the theory of guilt but must be inconsistent with any other rational conclusion.' " (Id.

at p. 175.) The Supreme Court also agreed " '[n]either the statement in an instruction that

the guilt of the defendant may be established beyond a reasonable doubt, nor the

statement that as between two opposing reasonable inferences the one which is consistent

with innocence must be preferred to the one tending to show guilt, satisfies the right of

the defendant to have the jury instructed that where circumstantial evidence is relied upon

                                               7
by the People it must be irreconcilable with the theory of innocence in order to furnish a

sound basis for conviction.' " (Id. at pp. 175-176, quoting People v. Hatchett (1944) 63

Cal.App.2d 144, 155.) However, the Supreme Court concluded there was no miscarriage

of justice based on instructional error because the jury was "not altogether uninstructed"

(they were instructed about evidence susceptible to conflicting interpretations) and

because the evidence pointed "irresistibly" to the defendant as the perpetrator of the

crime. (Bender, at p. 177.)

       Neither CALCRIM No. 224 nor CALCRIM No. 225 contain language stating

circumstantial evidence must either be "inconsistent with any . . . rational conclusion

[other than guilt]" or "irreconcilable with the theory of innocence." (Bender, supra, 27

Cal.2d at pp. 175-176.) However, Crespo cites no authority requiring the use of this

precise language. The precise form of the traditional instruction is not essential, as long

as the doctrine is plainly stated. (People v. Navarro (1946) 74 Cal.App.2d 544, 550

["[w]ords of equal import may be substituted if the principle is substantially but clearly

and fairly set forth"].) The Supreme Court has held courts should give "an instruction

embodying the principle that to justify a conviction on circumstantial evidence the facts

and circumstances must not only be entirely consistent with the theory of guilt but must

be inconsistent with any other rational conclusion." (People v. Yrigoyen (1955) 45

Cal.2d 46, 49, italics added.)

       In this case, the trial court instructed the jury regarding the use of circumstantial

evidence with CALCRIM No. 224 as follows: "Before you may rely on circumstantial

evidence to conclude that a fact necessary to find Mr. Crespo guilty has been proved, you

                                              8
must be convinced that the People have proved each fact essential to that conclusion

beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to

find [Mr. Crespo] guilty, you must be convinced that the only reasonable conclusion

supported by the circumstantial evidence is that [Mr. Crespo] is guilty. If you can draw

two or more reasonable conclusions from the circumstantial evidence, and one of those

reasonable conclusions points to innocence and another to guilt, you must accept the one

that points to innocence. However, when considering circumstantial evidence, you must

accept only reasonable conclusions and reject any that are unreasonable." (Italics added)

       The trial court also instructed the jury regarding the use of circumstantial evidence

to prove intent or mental state with CALCRIM No. 225 as follows: "The People must

prove not only that [Mr. Crespo] did the act charged, but that he also acted with a

particular intent or mental state. The instruction for each crime and allegation explains

the intent or mental state required. [¶] An intent or mental state may be proved by

circumstantial evidence. [¶] Before you may rely on circumstantial evidence to conclude

that a fact necessary to find [Mr. Crespo] guilty has been proved, you must be convinced

that the People have proved each fact essential to that conclusion beyond a reasonable

doubt. [¶] Also, before you may rely on circumstantial evidence to conclude that [Mr.

Crespo] had the required intent or mental state, you must be convinced that the only

reasonable conclusion supported by the circumstantial evidence is that [Mr. Crespo] had

the required intent or mental state. If you can draw two or more reasonable conclusions

from the circumstantial evidence, and one of those reasonable conclusions supports a

finding that [Mr. Crespo] did have the required intent or mental state and another

                                             9
reasonable conclusion supports a finding that he did not, you must conclude that the

required intent or mental state was not proved by the circumstantial evidence. However,

when considering circumstantial evidence, you must accept only reasonable conclusions

and reject any that are unreasonable." (Italics added.)

       We conclude the language we italicized above from both CALCRIM Nos. 224 and

225 instructs the jury it must be convinced "the only reasonable conclusion" supported by

the circumstantial evidence was guilt or the possession of the required mental state is a

correct statement of the law. The language adequately conveys and embodies the

principle articulated in Bender, supra, 27 Cal.2d at page 175 that circumstantial evidence

must be " 'inconsistent with any . . . rational conclusion' " other than guilt. Contrary to

Crespo's contention, the CALCRIM language does not merely convey circumstantial

evidence must be consistent with guilt, it must be "the only reasonable conclusion" to be

drawn from the circumstantial evidence. (CALCRIM Nos. 224, 225, italics added.)

       In this case, even if these instructions could be construed as erroneous, we

conclude there was no miscarriage of justice. "[A] 'miscarriage of justice' should be

declared only when the court, 'after an examination of the entire cause, including the

evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to

the appealing party would have been reached in the absence of the error." (People v.

Watson (1956) 46 Cal.2d 818, 836.) The evidence in this case leads to the overwhelming

conclusion Crespo knew he had insufficient funds in his credit union account when he

wrote the checks to the Pro Shop and to the Studio. Numerous checks were returned for

insufficient funds. He made numerous balance inquiries and withdrawal attempts in early

                                              10
May 2012, which showed he had a negative balance before he wrote the checks to the Pro

Shop. His account was closed before he wrote the checks to the Studio. The fact he

asked for a discount or selected sale items in no way leads to a rational conclusion he did

not intend to defraud the merchants by passing bad checks.

                                      DISPOSITION

       The judgment is affirmed.




                                                                      MCCONNELL, P. J.

WE CONCUR:


O'ROURKE, J.


AARON, J.




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