OPINION

GABBERT, Associate Justice.

In one information defendant was charged with issuing a check without sufficient funds (Penal Code § 476a). It was also alleged defendant had suffered five prior convictions of the same offense, which he admitted. A second information charged defendant with two counts of forgery. All charges were tried simultaneously. The jury found defendant guilty on the bad check count but not guilty on the two counts of forgery. Probation was denied, and defendant was sentenced to state prison for the term prescribed by law. He appeals from the judgment of conviction.

Defendant contends that the judgment must be reversed for the following reasons:

(1) Prejudicial error in the trial court's refusal to give a requested jury instruction;

(2) Insufficiency of the evidence to support the judgment;

(3) Prejudicial error in the trial court's failure to segregate the jury instructions;

(4) Prejudicial misconduct by the prosecutor.

On June 14, 1968, defendant opened a checking account at Security First National Bank, Inland Center Branch, with an initial deposit of $10. He made a deposit of $40 on June 21, 1968, and $40 on June 28, 1968. The account was closed on July 5, 1968, by the bank. The balance at this time was zero. A statement was mailed to defendant showing a zero balance, but was returned to the bank marked 'Address Unknown'. Prior to July 5, five checks totaling about $600 had been dishonored by the bank. Twenty-six checks were dishonored after August 13, and the last dishonored [93 Cal.Rptr. 395] check was on September 23, 1968. A total of 39 checks on the account, amounting to approximately $1,400 was dishonored.

The evidence of the 38 dishonored checks other than the check on which the charges were based came solely from the oral testimony of an employee of the Security Bank. The checks themselves were not presented at the trial and there was no direct evidence as to whether defendant signed these other checks. The account, however, appears to have been solely in the name of the defendant, and there is no evidence that there were other authorized signatories on the account or that anyone other than defendant signed the other checks.

In August 1968 defendant had automotive repairs made at Dixon Wheel Service in San Bernardino, California. The repair work cost $139.13. On August 13, 1968, in payment for the repairs, defendant gave Mrs. Betty Herberger, the Dixon Wheel bookkeeper, a check drawn on the Inland Center Branch; the check was in the amount of $139.13. Although defendant gave the check to Mrs. Herberger on August 13, the check was dated August 15. Defendant told Mrs. Herberger he worked at the Pickwick book store in San Bernardino, that he didn't have enough money in his checking account to cover the check at that time but would have enough money to cover the check in his account by August 15. Mrs. Herberger deposited the check on either August 14 or 15. The check was not honored by the bank.

Defendant testified in his own behalf. He stated he opened an account at the Inland Center Branch of the bank in June 1968 with an initial deposit of $10, and that he was employed at Pickwick book store nearby. He stated he cashed his payroll checks at this bank weekly, each time depositing a portion of the check to his account; that he was not aware that prior to July 5, 1968, the bank had not honored five checks. He also stated he was not aware a check had been written on his account for approximately $395, and he had not written $600 in checks on the account. He was acquainted with the manager of the bank, but was not notified his account was closed and he considered it still open on August 13, 1968. He testified he made several deposits after June 28, 1968, and there should have been a record of deposits after July 5. Other than Dixon Wheel Service, only defendant's landlady contacted him during July or August 1968 regarding a bad check.

Before defendant wrote the check to Dixon Wheel Service, he asked Mrs. Herberger to hold the check until the following Friday; Mrs. Herberger said, 'All right'. He testified on August 13 he believed he had approximately $60 in his account, and intended to deposit his payroll check of $95 to cover the Dixon Wheel Service check and on such deposit would have sufficient funds in the account to pay the Dixon check on presentation. He did not deposit the money because, according to defendant's testimony, his brother picked up his payroll check without his knowledge while defendant was in San Diego. Defendant stated he learned of this when he went to the book store to ask for his check. Defendant did not contact Dixon Wheel Service after he found out his brother had taken the payroll check.

On cross-examination, defendant was asked whether he had been known by names other than Roger J. Poyet and, in that connection, whether he had previously been convicted of five counts of issuing checks without sufficient funds under the name of Richard Joseph Hoxie. Defendant admitted that he had.

Defendant admitted issuance of the check to Dixon Wheel Service on August 13, 1968, and knew at that time that there were insufficient funds in his account for payment of the check. His sole theory of defense was a lack of intent to defraud by virtue of his disclosure to Mrs. Herberger at the time of the issuance of the check that he had insufficient funds on deposit to cover payment, his postdating the check and promising to deposit from his expected pay check an amount sufficient to cover the check by August 15.

The question presented is this: Is the defendant guilty of violation of Section 476a of the Penal Code, when at the time [93 Cal.Rptr. 396] he gave the check to Mrs. Herberger he informed her there were not then funds in the bank with which to meet the check, but promised a deposit would be made on his payday, followed by a failure to make the deposit?

There is no substantial conflict between the testimony of the defendant and Mrs. Herberger. Both, in substance, agree the defendant informed her he would give a postdated check, that there were not funds in his account, but the check would be paid on August 15. Regardless of the exact wording used, the testimony is subject to only one fair conclusion: It was clearly understood by Mrs. Herberger when the defendant gave her the postdated check he did not have funds at the bank but would have funds to make the check good on August 15.

A crucial issue on this appeal is whether the defendant was prejudiced by the refusal of the trial court to give an instruction requested by the defendant, which read:

'You are instructed that if you find the defendant informed the payee at the time of delivery that there were insufficient funds on deposit to pay the check and the payee consented to accept the check, you must return a verdict of not guilty to the charge of violation of section 476a, regardless of the fact the defendant may have subsequently failed to carry out a promise to subsequently deposit such funds.'

In presenting the instruction the defendant cited and relied on the cases of People v. Burnett, 39 Cal.2d 556, 247 P.2d 828; In re Griffin, 83 Cal.App. 779, 257 P. 458 and People v. Wilkins, 67 Cal.App. 758, 228 P. 367.

In Burnett the defendant was charged with issuing two checks without sufficient funds. The payee was informed that there were insufficient funds to pay the check and a postdated check was given in conjunction with a currently dated check as payment of a single obligation. The payee deposited the currently dated check but held the postdated check until its due date. At the latter date there were not sufficient funds to pay it.

In the opinion of Chief Justice Gibson at this point in Burnett, we find the following language: (39 Cal.2d 556, 559, 247 P.2d 828, 830.)

'After deliberating several hours the jurors returned to the courtroom, and the foreman announced that they had agreed as to one count but were deadlocked on the other. The court directed them to deliberate further, but before the jury retired again one of the jurors asked, 'Is intent to defraud, if you give a check with not sufficient funds and at the time that you deliver the check you informed the person to whom you issued that check that there is not sufficient funds? If he demands it, you say, 'Well, I give you the check, but there is not sufficient funds in the bank to cover that check', is that to be construed as intention to defraud?' The court replied, 'That is a question for the jury to determine after considering all of the facts and circumstances of the case.' The jury returned in about a half-hour with a verdict of guilty on the Lewis count but was unable to reach a verdict on the Bacorn count.

' The court erred in its instruction. The jury should have been told that there can be no conviction under section 476a if the payee is informed by the maker at the time of delivery that there are insufficient funds to pay the check. (In re Griffin, 83 Cal.App. 779, 781, 257 P. 458; People v. Wilkins, 67 Cal.App. 758, 228 P. 367.)'

Under a fictitious check statute similar to our own the Michigan Supreme Court has said:

'It is not possible to thus perpetrate a fraud if the check is given by the maker and accepted by the payee with the latter's full knowledge that the maker does not then have either a deposit or credit at the bank which will result in payment of the check on presentation. Such knowledge negatives the possibility of the payee being defrauded in the manner penalized by this statute. That he may have been defrauded in some other manner [93 Cal.Rptr. 397] will not sustain a prosecution under this statute. The defendant's promise to make a deposit on the following day with which to meet this check was no more than a promise to pay on the following day. Notwithstanding under certain circumstances promises made in bad faith as to future conduct may be the basis of a charge of fraud, such is not the offense embodied in this statute.' (People v. Jacobson, 248 Mich. 639, 227 N.W. 781, 782.)

The maker of a postdated check has been held not to be guilty of deception when he informs a payee at the time of delivery of the instrument he does not have funds in the bank to meet the check. (See 35 C.J.S. False Pretenses, § 21 pp. 828 et seq.) The fact that the maker of a check is unable or fails to keep a promise to have funds in the bank on or before the date of the check does not establish the check was issued with intent to defraud within the meaning of Section 476a of the Penal Code at the time it was issued. (In re Griffin, 83 Cal.App. 779, 257 P. 458.)

In People v. Wilkins, supra, 67 Cal.App. 758, 760, 228 P. 367, 368 it was stated:

'The evidence upon which this contention is based, stated in the light most favorable to the prosecution, is that at the time of the making and delivery of the check defendant stated to the payee that he did not have sufficient funds in the bank to meet the check, but would have on or about the 1st of September, and the further fact that he did not keep such promise and the amount of the check has never been paid.'

'* * *'

'So far as we are advised, the question here presented has never been decided by either the appellate or Supreme Court of this state, but in People v. Bercovitz, 163 Cal. 636 [43 L.R.A. (N.S.) 667, 126 P. 479], the supreme court says: 'We are not here concerned with a case where the fact of want of sufficint funds or credit is made known by the drawer to the person to whom he delivers the check or draft at the time of the delivery, and the payee chooses, with such knowledge, to rely on a promise or a representation of the drawer that he will make such provision that the amount thereof will be paid on presentation. It may be that as to such a case, a conviction could not properly be had under the section in question.''

'* * *'

'In State v. Miller, 47 Or. 562, 85 P. 81, a case of obtaining property by false pretenses, the defendant issued his check in payment of certain property. At the time of the making and delivery of the check defendant informed the payee that he had no funds in the bank to meet it. It was held by the Supreme Court of Oregon that the payee did not rely upon the check and was not defrauded thereby. It was also held that there was no intent to defraud shown, and the following pertinent language was used by the court: 'Miller having told Goss that there was no money in the First National Bank of Sumpter to pay the check, there was no deceit and hence there was no intent on Miller's part to defraud Goss.''

'* * *'

'In the case at bar, the defendant having at the time of the delivery of the check to the payee, made known to him that he had no funds in the bank to meet the check, there was no deception. And the mere fact that he failed to keep the promise does not, in our opinion, constitute any evidence that at the time of the transaction the check was issued with intent to defraud. There being an entire lack of evidence upon a material element of the offense, it follows that the judgment and order must be reversed, and it is so ordered, and the cause remanded.'

As is set out in California Criminal Law by Fricke and Alarcon, 9th ed. page 353:

'The check in such a case is in effect merely a promissory note. Where the defendant asked the person to whom he gave the check to hold it for a stated period [93 Cal.Rptr. 398] of time, this in effect was a statement that the check was not then good or cashable at the bank and there is no intent to defraud * * * There can be no conviction under section 476a if the payee is informed by the maker at the time of the delivery that there are insufficient funds in the bank to pay the check. (People v. Burnett, 39 Cal.2d 556 [247 P.2d 828].)'

Editorial comment emphasizes where disclosure has been made by the drawer to the payee, at the time a check is issued, there are not sufficient funds or credit with the bank to meet the check, such disclosure purges the transaction of its criminal character under 'bad check' statutes. Under such circumstances fraudulent intent is absent and the transaction is essentially one of extending credit to the drawer. (Witkin, Cal.Crimes, Vol. 1, p. 444; 32 Am.Jur.2d 225; see also State v. Eikelberger, 72 Idaho 245, 239 P.2d 1069; Gumm v. Heider, 220 Or. 5, 348 P.2d 455.)

Mrs. Herberger, the principal witness for the People in the case before us, testified credit was actually extended to the defendant, by agreement, in the transaction involving the issuance of the check, until August 15, the defendant's payday.

In State v. Bruce, 1 Utah 2d 136, 262 P.2d 960, at 962, under a statute containing virtually identical language to that in Section 476a of our Penal Code, the court said:

'The emphasized words indicate that the statute denounces the passing of a bad check only where there is misrepresentation that the maker has money or credit at the time the bad check is passed. It logically follows that it does not apply when both maker and payee know that the check is postdated. Under such circumstances the clear inference is that the maker has not money to pay the check at the time, but intends to cover it by the postdate. Where the payee accepts it with that understanding, he is not relying on a representation that the maker has money in the bank at the time, but rather that it will be covered when it is presented on its date. This amounts to a promise to be performed in the future. Obviously such a promise may be made in good faith, but plans go awry, unexpected or uncontrollable events intervene, or a bona fide change of mind occurs, any one of which would negative the existence of an intent to defraud at the time the check was passed, thus eliminating an element essential to constitute the crime. Such reasoning is the basis of the general rule that a promise of performance in the future will usually not support a charge of fraud.'

The court in Bruce, supra, held under its facts, that even where the person who accepted the check did not notice it was postdated, where the defendant had no money in the bank for over a month, checks had been returned unpaid, and the account had been closed, a credit transaction was involved. The court found the payee 'was relying on the defendant's covering the check in the future, and so would be a credit transaction * * *.'

It should be noted the evidence in the case before us did not establish the defendant wrote or signed the other outstanding checks he assertedly had issued. The other checks were not put into evidence. The signatures were not demonstratively established. Admittedly, the prior criminal 'record' of the defendant with respect to convictions on similar offenses was bad. However, in view of the language in the California cases which have been cited herein, we feel constrained to hold that the [93 Cal.Rptr. 399] failure of the trial court to give the jury the instruction proposed by defendant, which correctly stated the rule of Burnett, was error. This instruction was vitally important to defendant's case because it explained the law applicable to his defense. This failure deprived the defendant of an essential defense.

Many cases have held the question of intent to defraud under Section 476a of the Penal Code is a question of fact which may be inferred from all the surrounding circumstances. (People v. Gentry, 257 Cal.App.2d 607, 65 Cal.Rptr. 235; People v. Simon, 227 Cal.App.2d 849, 39 Cal.Rptr. 138; People v. Costello, 223 Cal.App.2d 748, 36 Cal.Rptr. 155.) However, in none of the cases which we have examined where such general proposition is stated, has there been a factual situation, as in the case before us, in which there was disclosure by the defendant to the payee that there were no funds in the bank and a disclosed postdated check was given. Unless there is a change in the specific rule set forth in Burnett, it would appear that where the drawer makes such disclosure and requests the payee to hold a postdated check, that 'there can be no conviction'.

The judgment convicting the defendant of the crime of issuing a check without sufficient funds is unsupported by necessary evidence that he gave the check at the time it was passed with intent to defraud, a necessary element of the crime charged. The failure to instruct the jury in accordance with the rule laid down in Burnett, as requested by the defendant, deprived him of a consideration by the jury of an essential defense. In view of this decision it is unnecessary for us to consider the remaining contentions of the defendant on appeal.

A motion to acquit, under the provisions of Penal Code § 1118.1 was made by the defendant at the close to presentation of all of the evidence. This motion, which was denied, should have been granted. The defendant was entitled to an acquittal as a matter of law. The judgment is reversed and the trial court is ordered to enter a judgment of acquittal.

GARDNER, P. J., concurs.

KAUFMAN, Associate Justice (dissenting).

I respectfully dissent.

The Requested Jury Instruction

As correctly pointed out by the majority, the crucial question is whether the court erred in refusing to give the instruction requested by defendant.

If People v. Burnett, 39 Cal.2d 556, 247 P.2d 828 is controlling, there can be no question that the refusal to give the requested instruction constituted reversible error. (People v. Sears, 2 Cal.3d 180, 190, 84 Cal.Rptr. 711, 465 P.2d 847.) Actually, if Burnett is controlling, defendant was entitled as a matter of law to acquittal, for the court in Burnett said, 'there can be no conviction under section 476a if the payee is informed by the maker at the time of delivery that there are insufficient funds to pay the check' (39 Cal.2d at p. 559, 247 P.2d at p. 830), and it is uncontroverted that defendant disclosed to Mrs. Herberger the present insufficiency of funds when he gave her the check.

In my view, however, Burnett, and indeed, In re Griffin, 83 Cal.App. 779, 257 P. 458 and People v. Wilkins, 67 Cal.App. 758, 228 P. 367, relied on by Burnett, are not controlling. In none of these cases was there evidence of the defendant's intent to [93 Cal.Rptr. 400] defraud notwithstanding his disclosure of the present insufficiency of funds. In Burnett, the court found that the insufficiency of funds was disclosed to the payee by issuance of a postdated check simultaneously with a currently dated check, both in payment of a pre-existing obligation. (39 Cal.2d at p. 560, 247 P.2d 828.) Assuming that the delivery of the postdated check implied a promise to deposit funds for its payment upon presentation under the circumstances there disclosed, there was no evidence whatever that the implied promise to deposit funds was made in bad faith and, hence, there was no evidence of an intent to defraud. Likewise, in Griffin it appears that the check was postdated and that the defendant informed the payee of the insufficiency of funds and requested her to hold it until such time as he advised her to present it for payment, as he was expecting to receive funds from his father. (83 Cal.App. at p. 781, 257 P. 458.) There was no evidence whatever of any bad faith on the part of the defendant and, hence, no evidence of an intent to defraud. Similarly, in Wilkins, the defendant stated to the payee that he did not have sufficient funds in the bank but would have on or about the first of September. (67 Cal.App. at p. 760, 228 P. 367.) Again, however, there was no evidence whatever of any bad faith on the part of the defendant and, hence, again, there was no evidence of intent to defraud.

Conversely, in the case at bench, notwithstanding defendant's postdating the check and informing Mrs. Herberger of the insufficiency of funds, the evidence is very persuasive that defendant had the intent to defraud at the time he delivered the check. Although defendant testified that he believed he had approximately $60 in his account and intended to deposit his payroll check of $95 in the account to cover the check, there is a compelling inference from the large number of checks written, the amount of which was greatly in excess of the amount deposited, that defendant knew full well that there were no funds at all in the account and that his promise to deposit sufficient funds to cover the check to Dixon Wheel Service was given completely in bad faith. If defendant knew there were no funds in the account, he could not have expected to cover a $139.13 check with the deposit of a $95 paycheck. If such were the facts, defendant violated the statute. He willfully, with intent to defraud, made and delivered a check or draft upon a bank, knowing at that time that he had not sufficient funds in or credit with the bank for the payment of the check or draft upon its presentation. (Pen.Code, § 476a.) Although reliance by the payee is required to support a conviction for theft by fraudulent pretenses, reliance by the payee is not an element of the crime proscribed by Penal Code, section 476a. (People v. Sherman, 100 Cal.App. 587, 590, 280 P. 708; People v. Williams, 69 Cal.App. 169, 172-173, 230 P. 667; 1 Witkin, Cal.Crimes (1963), § 480, p. 441.)

It is true that a number of jurisdictions, perhaps the majority, preclude conviction under their 'bad check' statutes when the check was postdated or the present insufficiency of funds was disclosed to the payee. (See annot. at 29 A.L.R.2d 1181.) Some courts reach this result by holding that a postdated check is not a 'check' within the meaning of their statute. It is established in California, however, that a postdated check will support a prosecution under Penal Code, section 476a. (People v. Bercovitz, 163 Cal. 636, 638, 126 P. 479.) Other courts reach this result on the theory that the disclosure of a present insufficiency of funds negates the intent to defraud. (E. g., State v. Bruce, 1 Utah 2d 136, 262 P.2d 960, 962.) It is manifest, however, that the disclosure of a present insufficiency of funds does not, in every case, negate the defendant's intent to defraud. The representation implied from the delivery of a check is not that there is then on deposit sufficient funds for the payment thereof but that the check will be paid in full upon presentation to the bank. (People v. Rubin, 223 Cal.App.2d 825, 834, 36 Cal.Rptr. 167; People v. Griffith, 120 Cal.App.2d 873, 880, 262 P.2d 355; Pen.Code, § 476a supra.) The disclosure of a present insufficiency of funds, while it constitutes some evidence thereof, is not conclusive evidence of the defendant's knowledge [93 Cal.Rptr. 401] or intention with respect to the payment of a postdated check upon its presentation to the bank.

It is in recognition of the foregoing that the rule exists that '[o]ne who negotiates a check with knowledge he has not sufficient funds in the bank to meet it,--but who has good reason to believe, and honestly does believe, that it will be paid,--cannot be said to have an intent to defraud the payee of the check." (People v. Rubin, supra, 223 Cal.App.2d at p. 834, 36 Cal.Rptr. at p. 172; People v. Griffith, supra, 120 Cal.App.2d at p. 880, 262 P.2d 355; see 1 Witkin, Cal.Crimes,supra, § 486, pp. 444-445.) The defendant's good-faith belief that the check will be paid upon presentation is material to prove his lack of intent to defraud. Similarly, evidence of his lack of a good-faith belief therein is material to prove his intent to defraud. Indeed, in Witkin, the rule is stated as follows: 'If the defendant discloses his lack of funds to the payee, and promises in good faith to deposit them, and the payee consents to the arrangement, there is no fraudulent intent * * *.' (1 Witkin, Cal.Crimes, supra, § 485, pp. 444-445, emphasis added.)

I would hold, therefore, that the general proposition that 'there can be no conviction under section 476a if the payee is informed by the maker at the time of delivery that there are insufficient funds to pay the check' (People v. Burnett, supra, 39 Cal.2d at p. 559, 247 P.2d at 830), is overly broad and inapplicable to the case at bench in which, notwithstanding such disclosure, there was evidence that defendant could not have had a good-faith belief that the check would be paid by the bank upon presentation. The court, therefore, did not err in refusing to give the requested instruction.

The jury was fully instructed that defendant could not be convicted of a violation of Penal Code, section 476a unless they found that he made or delivered the check in question with intent to defraud. (CALJIC 425.) They were further instructed that '[a]n intent to defraud is an intent to deceive another person for the purpose of gaining some material advantage over him or to induce him to part with his property or to alter his position to his injury or risk, and to accomplish that purpose by some false statement, false representation of fact, wrongful concealment or suppression of truth, or by any other artifice or act fitted to deceive.' (CALJIC 426.) At trial, in respect to the bad check charge, defendant's attorney made to the jury the only argument he could, that defendant's postdating the check and disclosing to Mrs. Herberger the existing insufficiency of funds to pay the same evidenced his lack of intent to defraud. Obviously, the jury rejected compelling inference that defendant made and issued the check in bad faith, knowing that he had no reasonable expectation of arranging for payment upon presentation of the check to the bank. The implied determination by the jury that defendant made and issued the check with intent to defraud is amply supported by the evidence.

Other Contentions

Defendant's contentions that the prosecutor was guilty of prejudicial misconduct in bringing out on cross-examination that defendant had been convicted of five prior felony violations of Penal Code, section 476a under the name Richard Joseph Hoxie and in presenting evidence through the testimony of the bank employees of the other uncharged bad checks are not meritorious. Defendant testified in his own defense, and there was no misconduct in the prosecutor's impeaching defendant's testimony by showing the prior convictions. (Evid.Code, § 788; People v. Martin, 250 Cal.App.2d 263, 266-267, 58 Cal.Rptr. 481.) Inasmuch as the name under which he was convicted would have been disclosed by introduction of certified copies of the judgments, [93 Cal.Rptr. 402] there was no error in asking defendant whether he had thus been convicted under the name Richard Joseph Hoxie. (Cf. People v. Tubby,34 Cal.2d 72, 79, 207 P.2d 51.) The evidence of the other uncharged, dishonored checks drawn on defendant's account was properly admitted. Such evidence was competent to prove defendant's intent to defraud. (People v. Megladdery, 40 Cal.App.2d 643, 649-650, 105 P.2d 385.)

Although the court instructed the jury that defendant was charged with different crimes in separate counts and that it must decide each count separately on the evidence and on the law applicable to it, defendant contends that the trial court erred in failing to segregate the instructions so that the jury could determine the law applicable to each count. A review of the jury instructions demonstrates that this contention, likewise, is without substance. With the exception of the general instructions applicable to all counts, each of the jury instructions but two contained language indicating the offense to which it applied. The two exceptions were instructions on intent to defraud. In the midst of a number of instructions containing language identifying them as pertaining to the bad check charge, the court rendered CALJIC 426, quoted above. In the midst of a group of instructions containing language indicating that they pertained to the forgery counts, and immediately following CALJIC 402 defining intent to defraud in relation to the crime of forgery, the court rendered CALJIC 402-A 'How Intent is Shown.' There is no reason why CALJIC 426 and 402-A should not be applicable to both offenses. In any event, however, in the context in which they were given, there is no possibility that the jury could have been confused. On the contrary, it appears that the jury was able to and did follow the instruction to decide each count separately on the facts and law applicable to it. The jury acquitted defendant on the two counts charging forgery.

I would affirm the judgment of conviction.