Richard Glen Boire, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 08CF2906)
Appeal from a judgment of the Superior Court of Orange County, James Patrick Marion, Judge. Affirmed.
Richard Glen Boire, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.
Delecia Ann Holt appeals from a judgment after a jury convicted her of seven counts of writing a check with insufficient funds, defrauding an innkeeper, and grand theft. Holt argues the trial court erroneously instructed the jury and her trial attorney provided ineffective assistance of counsel. None of her contentions have merit, and we affirm the judgment.
Counts 1-4-The Mercedes Benz Automobile
On July 13, 2005, Holt bought a 2002 Mercedes-Benz E320 from Fletcher Jones Motorcars (Fletcher Jones) for $32,724.56. Holt used a RoadLoans check for $20,000. She also wrote a personal check for $12,724.56 drawn on a Bank of America personal account. Holt's personal check was returned for insufficient funds (count 1). On December 24, 2005, Holt wrote a check to RoadLoans for $1,269.40. The check was returned for insufficient funds (count 3). On September 28, 2006, Holt wrote a check to RoadLoans's successor, Triad Financial, for $4,655.86. The check was returned for insufficient funds (count 4). The car was later repossessed in 2008 (count 2).
Counts 5-8-Comfort Suites
Holt stayed at the Comfort Suites from July 31, 2007, to September 2, 2007. Holt gave the following three checks to the manager: on August 3, 2007, for $500 (count 6); on August 22, 2007, for $500 (count 7); and on August 31, 2007, for $25 (count 8). All three checks were returned for insufficient funds. Holt's total bill was $4,917.62, which was never paid (count 5).
Counts 9-10-Laguna Cliffs Marriot Hotel
In October 2007, Holt worked with Alexis Ewers at the Laguna Cliffs Marriot to arrange a fundraiser to benefit Habitat for Humanity. Holt initially hoped to attract 300 people, but subsequently lowered her estimate to 100 people. The event was almost cancelled several times because Holt did not fill out the authorization form or make the down payment. To keep the event from being cancelled, Michael Curtis used his credit card to guarantee the $15,000 cost. On October 6, 2007, Curtis gave Ewers a check from Holt in the amount of $15,007.89. The check was returned for insufficient funds (count 9).
Holt contacted comedian Janine Hayes to provide entertainment at the event. Hayes arranged to hire three additional comedians to perform at the event. On October 7, 2007, Holt gave Hayes a check in the amount of $2,066. The check was returned for insufficient funds (counts 10 & 11). Approximately 50 people attended the fundraiser.
Count 11-Regal Theatre
On April 23, 2008, Holt gave theatre manager Josh Coke a check for $3,000 to sponsor a movie festival in return for promotional consideration. The check was returned for insufficient funds and the promotional deal was cancelled (count 14).
Trial Court Proceedings
An information charged Holt with the following: (1) July 13, 2005-October 7, 2008—writing a check with insufficient funds (Pen. Code, § 476a, subd. (a))(count 1), unlawfully taking a vehicle (§ 10851, subd. (a)) (count 2), and writing a check with insufficient funds (§ 476a, subd. (a)) (count 3); (2) September 28, 2006— writing a check with insufficient funds (§ 476a, subd. (a)) (count 4); (3) July 31, 2007-September 2, 2007—defraunding an innkeeper (§ 537, subd. (a)(2)) (count 5), writing a check with insufficient funds (§ 476a, subd. (a)) (count 6), writing a check with insufficient funds (§ 476a, subd. (a)) (count 7), and writing a check with insufficient funds (§ 476a, subd. (a)) (count 8); (4) October 6, 2007—writing a check with insufficient funds (§ 476a, subd. (a)) (count 9); (5) October 7, 2007—writing a check with insufficient funds (§ 476a, subd. (a)) (count 10), and grand theft (§ 487, subd. (a)) (count 11); (6) August 1, 2007—perjury by declaration (§ 118, subd. (a)) (count 12); (7) July 1, 2007-September 30, 2007—welfare fraud (Welf. & Inst. Code, § 10980, subd. (c)(2)) (count 13); (8) April 22, 2008— writing a check with insufficient funds (§ 476a, subd. (a)) (count 14); and (9) December 3, 2007-November 2, 2008—using a device to defraud a telephone company (§ 502.7, subd. (a)(5)) (count 15). As to all but counts 14 and 15, the information alleged Holt took property valued in excess of $50,000 (§ 12022.6, subd. (a)(1)).
All further statutory references are to the Penal Code, unless otherwise indicated.
At trial, the prosecutor offered the testimony of Investigator Damon Tucker, who reviewed Holt's financial statements. Tucker testified Holt's personal Bank of America account had a negative balance when she wrote the checks to Fletcher Jones and RoadLoans. Tucker said over the next few months her bank account balance was never high enough to cover the check to Fletcher Jones. He said Holt tried to make a substantial deposit in December 2005 but it was not credited. He added she deposited $15,000 in January 2006, but she never paid Fletcher Jones or RoadLoans. Tucker also testified Holt's Ameritrade account had a negative balance when she wrote the checks to Triad Financial, Comfort Suites, and Marriot. Finally, Tucker testified Holt told him she thought she had money in the accounts, she had too many accounts to keep track of, she did not receive financial statements because she moved a lot, and an employee at Fletcher Jones knew she did not have sufficient funds to cover the check when she wrote it. Tucker stated he discovered her statements were going to a post office box and not her residence.
The prosecutor also offered testimony that after officers arrested Holt, the car was repossessed. Inside the car, investigators found account statements for Holt's Bank of America and TD Ameritrade accounts.
The jury heard testimony Holt applied for and received public assistance while she also received child support (count 13). There was evidence Holt signed a welfare document without reporting she received child support (count 12). The jury also heard testimony Holt submitted a bill to Sprint-Nextel Communications for over $2 million for lost business opportunities on behalf of her business (count 15).
At the close of the prosecutor's case-in-chief, the trial court granted Holt's motion to dismiss counts 2, 12, 13, and 15 pursuant to section 1118.1. The prosecutor filed an amended information, which alleged the following: (1) July 13, 2005-September 28, 2006—three counts of writing a check with insufficient funds (§ 476a, subd. (a)) (count 1-Fletcher Jones Motorcars, count 2-RoadLoans, & count 3-Triad Financial); (2) July 31, 2007-September 2, 2007—defrauding an innkeeper (§ 537, subd. (a)(2)) (count 4-Comfort Suites), and three counts of writing a check with insufficient funds (§ 476a, subd. (a)) (counts 5-7-Comfort Suites); (3) October 6, 2007-October 7, 2007— two counts of writing a check with insufficient funds (§ 476a, subd. (a)) (count 8-Laguna Cliffs Marriot Hotel & count 9-Janine Hayes), and grand theft (§ 487, subd. (a)) (count 10-Janine Hayes); and (4) April 22, 2008— writing a check with insufficient funds (§ 476a, subd. (a)) (count 11-Regal Entertainment Group). The trial court reviewed the exhibits with counsel to ensure those exhibits relating to the dismissed counts were not admitted into evidence.
Holt testified on her own behalf. Holt testified she was a repeat customer at Fletcher Jones when she bought the car in 2005. Holt told the salesman she did not have enough money in her account to cover the $12,724.56 check but that she would in several days. She claimed the salesman told her to take the car and the dealership was supposed to hold the check until financing was finalized. Holt stated that when she learned they had tried to cash the check, she called the dealership and they offered to set up a payment plan. Holt said she tried to return the car but the dealership refused. Holt claimed the checks to RoadLoans and Triad Financial bounced when she incurred expenses after the unexpected deaths of her brothers. Holt said she had too many accounts to keep track of and denied trying to defraud Fletcher Jones, RoadLoans, or Triad Financial.
Holt testified she thought her corporate account would cover her stay at the Comfort Suites. She said the manager was supposed to hold her first check for three days but the check was accidentally deposited. Holt claimed the second check could not have bounced because she and the manager checked her bank account balance online and it showed sufficient funds to cover the check. She acknowledged owing over $4,000 but she stated the manager overbilled her and when she brought it to the manager's attention, the manager stated she would send Holt another bill, which she never did. Holt denied she intended to defraud the Comfort Suites.
Holt stated she intended the fundraiser to benefit Curtis's business, which she was interested in buying. Holt explained she told the Marriot employee that she did not have enough money to cover the check, but the employee told her that because she had held fundraisers at the hotel, the employee would hold the check, and the hotel would recoup any losses from ticket sales. Holt denied she intended to defraud the hotel. With respect to the check to Hayes, Holt testified there would be enough money to cover the check from ticket sales or from another account, and there was also testimony Holt told Hayes to hold the check. Holt claimed she did not intend to defraud Hayes.
Holt testified she told Coke not to deposit the check but someone deposited it despite her instructions. Holt denied intending to cheat Regal Theatres.
Heidi Hollos searched Fletcher Jones records back to 1994 and found no record of Holt purchasing a vehicle. Coke denied Holt asked her to hold the check.
During jury deliberations, the trial court granted the prosecutor's motion to dismiss count 7. The jury convicted Holt of all remaining counts, except count 11. The trial court suspended imposition of the sentence. The court sentenced Holt to five years formal probation and ordered her to among other things pay restitution to the victims.
I. Jury Instructions
A. CALCRIM No. 3406, "Mistake of Fact"
Holt argues the trial court erroneously failed to instruct the jury sua sponte with CALCRIM No. 3406 as to counts 1, 2, 3, 5, 6, 8, and 9. We disagree.
Trial courts "must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial." (People v. Ervin (2000) 22 Cal.4th 48, 90.) The duty to instruct on defenses such as mistake of fact absent a request arises "'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.'" (People v. Barton (1995) 12 Cal.4th 186, 195.) Evidence is substantial when, if believed by the trier of fact, it would be sufficient to raise a reasonable doubt about the defendant's guilt. (People v. Salas (2006) 37 Cal.4th 967, 982.) There is no obligation to instruct a jury on a defense if the evidence supporting the defense is minimal or insubstantial. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.) If the defense is supported by substantial evidence and is inconsistent with the defendant's theory of the case, the trial court should ascertain whether defendant wishes instruction on this alternate theory. (People v. Breverman (1998) 19 Cal.4th 142, 157.)
The standard CALCRIM No. 3406 provides as follows: "The defendant is not guilty of violating section 476a if she did not have the intent or mental state required to commit the crime because she did not know a fact or mistakenly believed a fact. [¶] If the defendant's conduct would have been lawful under the facts as she believed them to be, she did not commit a section 476a offense. [¶] If you find that the defendant believed that her account had or would have sufficient funds, she did not have the specific intent or mental state required for section 476 a offense. [¶] If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for a section 476a offense, you must find her not guilty of that crime/those crimes."
CALCRIM No. 3406's Bench Notes state that if the mental state at issue is specific criminal intent a trial court should not use the bracketed language requiring the belief to be reasonable.
Mistake of fact can impact criminal responsibility in two common situations. First, where a defendant is charged with a general intent crime, a good faith mistake of fact may constitute a defense. (Cf. Ceja v. Rudolph & Sletten, Inc. (2011) 194 Cal.App.4th 584, 603 (Ceja); People v. Russell (2006) 144 Cal.App.4th 1415,
1425- 1426 (Russell).) In this situation, mistake of fact constitutes a defense only if it is also objectively reasonable. (Ceja, supra, 194 Cal.App.4th at p. 603.) At common law, an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which the person was indicted an innocent act, was always a good defense. (People v. Hernandez (1964) 61 Cal.2d 529, 535.) Second, mistake of fact can operate to negate an element of specific intent in a specific intent crime, whether or not the mistake of fact is reasonable. (Russell, supra, 144 Cal.App.4th at pp. 1420, 1424, 1426- 1427, 1431; cf. Ceja, supra, 194 Cal.App.4th at p. 603.)
With respect to counts 1, 8, and 9, Holt was not entitled to the mistake of fact instruction. Holt's explanation as to those counts was that she knew she did not have sufficient funds to cover those checks but stated she asked each of the recipients to hold the checks until she had sufficient funds to cover them. Thus, she did not mistakenly believe she had sufficient funds, she knew she did not, and the mistake of fact defense was inapplicable.
As to counts 2, 3, 5, and 6, there is an issue as to whether a trial court has a sua sponte duty to instruct on mistake of fact when mistake of fact can operate to negate an element of specific intent in a specific intent crime, whether or not the mistake of fact is reasonable.
In Russell, supra, 144 Cal.App.4th at pages 1425, 1431, the court characterized receiving stolen property as a specific intent crime to the extent it required knowledge the property was stolen and concluded a trial court erred by failing to instruct sua sponte on mistake of fact as negating knowledge. The court did not discuss whether the fact the evidence of mistake of fact was presented merely to negate the specific intent element of a specific intent crime and not as a defense to a general intent crime impacted the determination of whether the trial court had a sua sponte duty to instruct.
Although People v. Jennings (2010) 50 Cal.4th 616 (Jennings), concerned the defense of accident, we find it instructive. In that case, the California Supreme Court stated: "In People v. Saille (1991) 54 Cal.3d 1103 . . . , we held that evidence 'proffered in an attempt to raise a doubt on an element of a crime which the prosecution must prove beyond a reasonable doubt' may, but only upon request, justify the giving of a pinpoint instruction that 'does not involve a "general principle of law" as that term is used in the cases that have imposed a sua sponte duty of instruction on the trial court.' [Citation.] 'Such instructions relate particular facts to a legal issue in the case or "pinpoint" the crux of a defendant's case . . . . They are required to be given upon request when there is evidence supportive of the theory, but they are not required to be given sua sponte.'" The Jennings court explained defendant's claim the victim was killed by accident amounted to a claim they lacked the specific intent to kill. The court concluded it was defendant's burden to request the pinpoint instruction and "his failure to do so forfeited any claim of error in this regard." (Jennings, supra, 50 Cal.4th at pp. 674-675.)
Here, Holt does not dispute she wrote all the checks in question and they were all returned for insufficient funds. She asserts the only issue is whether she had the intent to defraud the victims when she wrote the checks. But she offered different evidence as to the lack of intent on counts 1, 8, and 9, than she did on counts 2, 3, 5, and 6.
Holt admits it is "well established" section 476a is a specific intent crime. (People v. Pugh (2002) 104 Cal.App.4th 66, 73 (Pugh); People v. Turner (1971) 22 Cal.App.3d 174, 180, fn. 2.) Because Holt did not contest she delivered the checks but only contested whether she possessed the necessary intent to commit the crimes, it was her burden to request a detailed instruction on whether she mistakenly believed her bank accounts included sufficient funds to cover the checks. Holt does not claim and our review of the record fails to establish Holt requested the trial court to instruct the jury with CALCRIM No. 3406. By failing to request the instruction, Holt forfeited appellate review of this issue.
Apparently, the majority of discussion concerning the jury instructions occurred at an unreported discussion in chambers. The only instruction discussed at length on the record was CALCRIM No. 1970, which we discuss anon.
In any event, even if the trial court had a sua sponte duty to give CALCRIM No. 3406, it is not reasonably probable the giving of the instruction would have produced a more favorable result for Holt. (People v. Zamani (2010) 183 Cal.App.4th 854, 866.) Holt passed multiple insufficient funds checks over a roughly three year period. As to some of the counts, she blames the payee for cashing the check too soon. It is unlikely all of these payees violated an agreement with Holt to hold the check. And the evidence demonstrates the money was almost never forthcoming so even if the checks had been held for days or even weeks, in most cases there would have been insufficient funds for payment. On other counts Holt claimed her frequent moves prevented her from receiving her financial statements and remaining advised of her current balances. But this is refuted by the evidence her financial statements were sent to a post office box and not her various residences. Investigators found in the car financial statements addressed to a post office box. Thus, we conclude the result would have been the same even had the court instructed the jury with CALCRIM No. 3406.
B. CALCRIM No. 1970, "Check with Insufficient Funds"
Holt contends that with respect to counts 1, 5, 8, and 9, CALCRIM No. 1970 was erroneous because it included an objective element that is improper in insufficient funds check cases. Specifically, she claims that because section 476a is a specific intent crime, the trial court should have omitted the word "reasonably." Assuming there was error, Holt was not prejudiced.
CALCRIM No. 1970 provided: "The defendant is charged in [c]ounts 1, 2, 3, 5, 6, 7, 8, 9[,] and 11 with making, or drawing, or delivering, or using, or attempting to use a check knowing that there were insufficient funds for payment of the check in violation of . . . section 476a. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully made, or drew, or delivered, or used or attempted to use a check on a bank or firm or corporation for the payment of money; [¶] 2. The defendant acted herself; [¶] 3. When the defendant made, or drew or delivered or used or attempted to use the check, there were insufficient funds in the bank or firm or corporation to cover full payment of the check and all other outstanding checks on that account; [¶] 4. The defendant knew that there were insufficient funds or credit available in that account; [¶] AND [¶] 5. When the defendant made or drew or delivered or used or attempted to use the check she intended to defraud. [¶] A check is a written document directing a bank or firm or corporation to pay the indicated amount to a person named as payee or to someone designated by that person. [¶] A person makes or draws a check when he or she writes it or causes it to be written and signs it to authorize payment.
Credit, as used here, is an arrangement or understanding with a bank or firm or corporation for payment of money authorized by check. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. [¶] 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 corporation/a business.
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 uses or attempts to use a check if he or she represents to someone that the instrument is genuine. The representation may be made by words or conduct and may be either direct or indirect.
Even if the defendant made or drew or delivered or used or attempted to use a check or order knowing that there were insufficient funds for payment of the check, the defendant did not intend to defraud if, at the time she acted, [s]he reasonably and actually believed that the check would be paid by the bank or firm or corporation when presented for payment. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant intended to defraud. If the People have not met this burden, you must find the defendant not guilty of this crime. [¶] If, when the defendant made or drew or delivered or used or attempted to use the check she told the person designated to receive the payment on the check that there were insufficient funds to allow the check to be paid, then the defendant is not guilty of this crime. [¶] The People have the burden of proving beyond a reasonable doubt that when the defendant made or drew or delivered or used or attempted to use the check she did not tell the person designated to receive payment that there were insufficient funds to allow the check to be paid. If the People have not met this burden, you must find the defendant not guilty of this crime." (Italics added.)
In Pugh, supra, 104 Cal.App.4th at page 73, the court addressed the issue of whether sufficient evidence supported his convictions for violating section 476a. The court concluded he could not be convicted of one of the counts because it was undisputed he told the recipient to not cash the check because he did not have sufficient funds to cover the check. As to the other check, the court concluded that after defendant initially told the recipient to not cash the check, the defendant told the recipient to resubmit the check. The court stated: "By that time appellant by his own admission knew that his expected windfall was not forthcoming at least in the immediate future. In any event, his claim of expected funds was based solely on his own impeachable testimony and could be reasonably rejected by the jury." (Italics added.)
CALCRIM No. 1970's Bench Notes reference Pugh, supra, 104 Cal.App.4th 66, in requiring the trial court to sua sponte instruct with the bracketed portion concerning when defendant informed the payee about insufficient funds. The Bench Notes to that instruction do not, like the Bench Notes for CALCRIM No. 3406, state that if the crime is a specific intent crime the trial court must omit the bracketed language requiring the belief to be reasonable.
Even if the trial court erred by failing to omit the word "reasonable" from CALCRIM No. 1970, the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18; Johnson v. United States (1997) 520 U.S. 461, 468-469 [evidence relevant to proof of omitted element overwhelming and thus no reasonable juror could have come to contrary conclusion]; People v. Flood (1998) 18 Cal.4th 470, 500-501 [same].)
Here, the trial court instructed the jury intent to defraud was an essential element of the crime and also fully instructed the jury on the role of circumstantial evidence in the proof of such specific intent (CALCRIM No. 225, "Circumstantial Evidence: Intent or Mental State"). And as we explain above, there was overwhelming evidence of Holt's guilt. She passed multiple insufficient funds checks over a roughly three year period. Her various explanations, i.e., she asked the payee to hold the check, she thought she had enough money, and she was confused because she had too many accounts, were simply unbelievable when compared to the overwhelming evidence of her guilt. Even if the court should have omitted the word "reasonably," there is no likelihood the jury would have found Holt actually believed the checks would be paid. Finally, the use of the word "reasonably" in CALCRIM No. 1970 did not prevent the jury from acquitting Holt of count 11, where she offered the same explanation as she did in counts 1, 5, 8, and 9—she asked the recipient to hold the check and the recipient failed to do so.
C. Limiting Instruction
Holt argues the trial court erroneously failed to give the jury a limiting instruction, telling the jury not to consider the evidence concerning the dismissed counts, former counts 2, 12, 13, and 15. The Attorney General responds Holt waived appellate review of the issue because she did not request a limiting instruction, and she did not object to the admission of that evidence. We agree with the Attorney General.
The trial court instructed the jury, "The counts charging the defendant with [u]nlawful [t]aking of a [v]ehicle [count 2], [p]erjury by [d]eclaration [count 12], [a]id by [misrepresentation [count 13], and [u]se of a [d]evice to [d]efraud [t]elephone [c]ompany [count 15] no longer need to be decided in this case." Holt did not request any further instruction, and her claim the trial court erred in failing to instruct the jury to disregard the evidence concerning counts 2, 12, 13, and 15 is waived. (People v. Vera (1997) 15 Cal.4th 269, 276, overruled on other grounds in People v. French (2008) 43 Cal.4th 36, 47; People v. Hernandez (2004) 33 Cal.4th 1040, 1051 [trial court no sua sponte duty to give limiting instruction].)
As to her claim the trial court erred in permitting the testimony concerning counts 2, 12, 13, and 15 to remain in evidence, Holt did not move to have that evidence excluded. Thus, her claim the trial court erroneously permitted that testimony in evidence, her claim is waived. (People v. McDaniel (1976) 16 Cal.3d 156, 176; Evid. Code, § 353.) Although the trial court excluded the applicable exhibits, it was incumbent upon defense counsel to move to exclude any other evidence and his failure to do so waives appellate review of the issue. Finally, Holt states admission of the evidence violated Evidence Code section 1101, subdivision (a)'s prohibition on the admission of character evidence. Holt did not object to the admission of the evidence on this ground and therefore her claim is waived. (Evid. Code, § 353; People v. Samuels (2005) 36 Cal.4th 96, 113.)
II. Ineffective Assistance of Counsel
Holt argues her defense counsel was ineffective for failing to request the trial court to instruct the jury not to consider the evidence concerning the dismissed counts and move to exclude that evidence from the jury's consideration. As we explain below, Holt suffered no prejudice.
"In order to establish a violation of the right to effective assistance of counsel, a defendant must show that counsel's performance was inadequate when measured against the standard of a reasonably competent attorney, and that counsel's performance prejudiced defendant's case in such a manner that his representation 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' [Citations.] Moreover, 'a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.' [Citation.] Prejudice is shown when there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.] If defendant fails to show that he was prejudiced by counsel's performance, we may reject his ineffective assistance claim without determining whether counsel's performance was inadequate. [Citation.]" (People v. Sanchez (1995) 12 Cal.4th 1, 40-41, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390.)
Here, there is not a reasonable probability the result of the proceedings would have been different had the trial court excluded the evidence concerning counts 2, 12, 13, and 15 and instructed the jury to not consider that evidence. The trial court properly instructed the jury the prosecutor had to prove each of the offenses beyond a reasonable doubt (CALCRIM No. 220) and on the elements of the offense (CALCRIM No. 1970). CALCRIM No. 1970 required the jury to conclude beyond a reasonable doubt that Holt intended to defraud as to each count. That instruction required the jury to find Holt "intend[ed] 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." Further, the court instructed the jury that if anything the attorneys said conflicted with the instructions, the jury must follow the court's instructions (CALCRIM No. 200), and that nothing the attorneys said was evidence (CALCRIM No. 222). Finally, the court instructed the jury to not be influenced by bias, prejudice, or public opinion (CALCRIM No. 200). Based on the instructions, we are confident the jury properly weighed the facts against the applicable law and was not influenced by the evidence concerning counts 2, 12, 13, and 15.
Holt relies on the fact that during deliberations, the jury asked to view the exhibits concerning the dismissed counts and thus, the jury must have considered the testimony regarding those counts. The trial court properly responded they were not to consider those exhibits. We presume the jury was not influenced by bias, prejudice, or public opinion in evaluating the evidence. (People v. Butler (2009) 46 Cal.4th 847, 873 [presume jurors intelligent people capable of understanding instructions and applying them to facts of case].)
The success of Holt's defense rested entirely on her credibility. As we explain above, the jury heard evidence that over nearly three years Holt did not have sufficient funds to cover checks and she did in fact have her financial account records, in the Mercedes Benz she drove to a police interview no less. Had the jury believed Holt's version of the events, the jury as instructed could have concluded she did not intend to defraud any of the victims. Holt's numerous explanations for why each of the checks bounced were simply unbelievable, and the jury rejected her explanations.
The judgment is affirmed.
O'LEARY, ACTING P. J. WE CONCUR: MOORE, J. ARONSON, J.