P. v. Blanchette

Filed 6/13/08 P. v. Blanchette CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Consolidated with a petition for writ of habeas corpus. Judgment affirmed. Petition denied.

Linda Acaldo, under appointment by the Court of Appeal, for Defendant, Appellant and Petitioner.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, A. Natasha Cortina and Deana Bohenek, Deputy Attorneys General, for Plaintiff and Respondent.

Aaron Lee Blanchette appeals from a judgment after a jury convicted him of second degree vehicular burglary and receiving stolen property. Blanchette argues he received ineffective assistance of counsel, there were instructional errors, and the trial court abused its discretion when it denied him probation. Alternatively, in a petition for writ of habeas corpus, Blanchette contends he received ineffective assistance of counsel because his defense counsel failed to introduce potentially exonerating evidence. We ordered consolidation of the petition with the appeal. None of his contentions have merit, and we affirm the judgment. We deny the petition.

FACTS

One evening about midnight, Ryan Meredith, who lived in a gated community accessible only by a remote control or access key code, gazed out a window of his home. At some point, he heard a vehicle drive by. He saw a Caucasian man walking between two vehicles parked on his neighbors driveway; his neighbors were Asian. The man was wearing jeans and a dark jacket. Meredith saw another Caucasian male wearing jeans and a dark jacket walking and looking into some type of office briefcase. The man holding the bag looked across the street at the other man, made eye contact with him, and nodded. The men walked in opposite directions. Meredith called 911. After waiting five or six minutes and not seeing any police officers, Meredith got into his vehicle to search for the men.

Meanwhile, Officer Gregory Schaller responded to the call. Upon arriving at the gated community, he saw Blanchette, who matched the description of one of the suspects, walking towards the front gate with a black bag. Schaller asked him what he was doing, and Blanchette said he was at a friends house playing poker on Trevino Drive, and he was waiting for his wife to pick him up.

Schaller searched Blanchette and found a Blackberry cellular telephone in his jacket pocket and a blue Nokia cellular telephone in his front pants pocket. Inside the black bag, Officer Mark Turner found paperwork with the name Takahashi on it and compact disks.

Near the entrance to the gated community, Meredith saw officers had arrested the man who he saw in front of his house holding the bag. The bag was on the patrol cars hood. Meredith heard the same vehicle he had heard earlier drive away. Meredith told the officer he was the person who reported the incident, the man was one of the men he saw in front of his house, and he heard the same vehicle he had heard earlier drive away. The officer asked Meredith to go home and wait for the officer. When Meredith returned home, he noticed his neighbors vehicles internal light was on. When he looked inside, the glove box was open and its light was on. Down the street, another vehicles light was on. Meredith knocked on his neighbors door, but got no response, and he left a note.

Officer Alexander Kiilehua, who had also responded to the call, found a white BMW with the door open, and officers determined the black bag belonged to the owner of that car, James Takahashi; the compact disks were not his. Schaller continued to search the area and found a minivan with the glove compartment open. The compact disks belonged to the owner of the minivan, Jim Ko. The two cellular telephones belonged to another nearby resident, Brian McGavin.

Turner drove Blanchette to the police station. He had a wallet with some credit cards, 54 cents, and his own cellular telephone. Turner administered a preliminary alcohol screening on Blanchette, and his blood-alcohol level was .110 percent, but he appeared normal.

An information charged Blanchette with second degree vehicular burglary (Pen. Code,  459, 460, subd. (b))[1] (count 1), and receiving stolen property ( 496,

subd. (a)) (count 2).

The prosecutor offered the testimony of Takahashi, who testified he owned the white BMW. On the night of the incidence, Takahashi left his briefcase on the cars front passenger seat. He stated the briefcase Schaller recovered from Blanchette was his, and was the one he left on the front passenger seat of his car. Takahashi said he did not know Blanchette or give him permission to enter his car or take his briefcase.

The prosecutor also offered the testimony of Ko, who testified the compact disks the officers recovered from Blanchette were in the glove compartment of his minivan. Ko stated he did not know Blanchette or give him permission to go inside his minivan or take the compact disks. At the close of the prosecutions case, the trial court denied Blanchettes motion for judgment of acquittal pursuant to section 1118.1.

Blanchette offered the testimony of three friends. Timothy Salmas testified the poker party was at his house and Blanchette arrived between 8:00 and 9:00 p.m. Sasha Neubauer testified he played poker with Blanchette at one of the Salmas brothers house on the night of the incident. He stated Blanchette drank, and he walked home to try to get sober at approximately 11:00 or 11:30 p.m.

Curtis Marks testified Blanchette worked for him installing garage doors for three or four years. Marks stated Blanchette had the keys to the office and work truck. He said Blanchette would collect checks from customers, and he received letters complementing Blanchette; he never had any complaints. Marks stated he was reliable and totally trust[ed] him. Marks would hire Blanchette to work for him again. On cross-examination, Marks explained he saw Blanchette after he had been drinking and he did not lose control and appeared to have all his faculties.

Blanchette testified on his own behalf. Blanchette said his brother-in-law drove him to the poker party at approximately 9:00 p.m. He had $10. He drank six or seven whiskey and sodas. He left at approximately 11:45 p.m., and decided to walk home to get sober so his wife would not get upset. He had a wallet and a cellular telephone. Because he could be home in 10 minutes, Blanchette decided to take a longer route home, and after approximately 20 minutes, he realized he was lost. He saw a gated community he was familiar with and decided to walk through there, walk across the golf course, and he would be home. After realizing he could not cut through the gated community, he was headed back towards the front gate when he found a briefcase. He testified, And I dont know why, but I picked it up. He walked towards the front gate, and a police officer stopped him. The officer asked him what he was doing and if he had been drinking, and Blanchette told him he was walking home and he had been drinking. The officer asked him if the bag was his and if he knew whether the bag was stolen. Blanchette stated the bag was not his, he did not know whether it was stolen, and he found it on the ground. The officer searched and arrested him. Blanchette said that at the police station, he spoke to three officers and told them what had happened. He admitted he had a 1998 theft-related conviction.

On cross-examination, Blanchette testified he found a blue Nokia cellular telephone and a Blackberry sitting on a bag. He put both items into his jacket pocket; he did not put the Nokia into his pants pocket. He picked up the bag, but he did not open it, look into it, or know there were compact disks in the bag. He testified he knew none of the items were his. He also said he did not know the items were stolen. He did not remember nodding at anyone, but he could have. On redirect examination, Blanchette testified Schaller told him the property was stolen. He said he told the police officer at the station he knew the property was stolen based on what Schaller told him. He never told an officer he was waiting for his wife to pick him up.

On rebuttal, the district attorney offered Kiilehuas testimony. He testified Blanchette told him he knew the property was stolen. The district attorney also offered Schallers testimony on rebuttal. He testified the blue Nokia cellular telephone was in his front pants pocket. He did not believe he told Blanchette the property was stolen.

The jury convicted Blanchette on both counts. The trial court sentenced Blanchette to state prison to the low term of 16 months on count 1. The court stayed his 16 month low-term sentence on count 2 pursuant to section 654.

DISCUSSION

I. Ineffective Assistance of Counsel

On appeal, and in his petition for writ of habeas corpus, Blanchette argues he received ineffective assistance of counsel because his defense counsel failed to question him concerning his intent, which left him without his sole defense[.] We disagree.[2]

In order to establish a violation of the right to effective assistance of counsel, a defendant must show that counsels performance was inadequate when measured against the standard of a reasonably competent attorney, and that counsels performance prejudiced defendants 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 counsels 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 counsels 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 counsels performance, we may reject his ineffective assistance claim without determining whether counsels performance was inadequate. [Citation.] (People v. Sanchez (1995) 12 Cal.4th 1, 40-41.)

Here, after Blanchette had testified, the following discussion concerning jury instructions occurred:

[Trial court]: Any other defense instructions?

[Defense counsel]: [Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM No.] 1751.

[Trial court]: Which is?

[Defense counsel]: That is the defense to receiving stolen property.

[] . . .[]

[Trial court]: What evidence do you see that [CALCRIM No.] 1751 pertains to this?

[Defense counsel]: I would think based upon his testimony -- based upon my clients testimony it would imply what this defense includes.

[Trial court]: Well, I mean, he was up on the stand for, you know, two to three hours, and I dont remember him ever saying that he intended to -- he took the property for the purpose of giving it back. Or I dont hear any statements from police or anything, so --

[Defense counsel]: Well, I am not sure if his officer is going to testify to that.

[Trial court]: Okay. Well, if someone testifies to that, I will give it.

[Defense counsel]: Okay.

[Trial court]: But right now it says, If there is substantial evidence supporting it, and I really dont see it right now. If somebody had asked the question and said, . . . Blanchette, or if there is a statement somewhere saying, I picked it up so I could return it to somebody; I thought it was lost, but that really was not -- really never came up. So at least for now I am going to deny [CALCRIM No.] 1751. I dont believe there is, much less substantial evidence, any evidence.

In his petition, Blanchette included three exhibits. In his declaration, Blanchette stated: 4. Prior to trial, [defense counsel] and I went over my testimony. I had explained to [defense counsel] that when I picked up the stolen property from the street where it was lying, it was my intention to attempt to return the property to its rightful owner(s). I intended to examine the property after I returned to my home for identifying information so that I could either return it to its owner(s) and/or notify police. [] 5. During trial, I explained to the jury that I had found the stolen property on the street and had picked it up. [] 6. During trial, [defense counsel] failed to ask me what my intention was with regard to the property that I picked up from the street even though I wished to tell the jury and I had conveyed that desire to [defense counsel].

Appellate counsel also included two letters she states she sent to defense counsel. In the first letter, she asks defense counsel generally whether he has any suggestions for her to consider on appeal. In the second letter, she asks a more pointed question: Was there some tactical reason why you did not ask . . . Blanchette what his intentions were when he picked up the property from the street? Appellate counsel claims defense counsel did not respond to either letter.

Relying on defense counsels request to instruct the jury with

CALCRIM No. 1751 and the exhibits, Blanchette argues he received ineffective assistance of counsel because defense counsel did not ask him what he intended to do with the stolen property. He asserts had defense counsel asked him what his intent was, and had he answered his intent was to return the property, the trial court would have instructed the jury with CALCRIM No. 1751.[3] Assuming arguendo Blanchette would have testified he intended to return the property and the court instructed the jury with CALCRIM No. 1751, we conclude he was not prejudiced by the absence of this evidence or the instruction.

As we explain above, to prevail on a claim of ineffective assistance of counsel, Blanchette must show he was prejudiced, i.e., there is a reasonable probability that but for defense counsels deficient performance the result of the trial would have been different. Blanchette did not satisfy his burden of demonstrating prejudice as there was not a reasonable probability that had defense counsel asked Blanchette what his intent was, there would have been a different result.

There was overwhelming evidence Blanchette committed count 2. Meredith testified he saw Blanchette look into some type of briefcase, look across the street, and nod at another man. Blanchette testified he was intoxicated and he could not remember whether he nodded at another man that evening, but said he could have. From this evidence the jury could reasonably conclude Blanchette and a confederate targeted the area to commit burglaries. Takahashi testified he left his briefcase on his white BMWs front passenger seat and he did not know Blanchette or give him permission to enter his car or take his briefcase. Ko testified the compacts disks the officers recovered

from Blanchette were in his minivans glove compartment and he did not know Blanchette or give him permission to go inside his minivan or take the compact disks. Kiilehua testified the cellular telephones belonged to another nearby resident, McGavin. From this evidence the jury could reasonably conclude Blanchette burglarized Takahashis car and took his black bag, and was in possession of stolen property, Kos compact disks and McGavins cellular telephones.

When defense counsel asked Blanchette how he ended up in the gated community, he volunteered, among other things, that he did not know why he picked up the items. This was essentially his defense and what defense counsel argued during closing argument. Had defense counsel elicited a different answer from Blanchette as to intent, it would likely have undermined, and not bolstered his credibility. Although the jury did request a readback of Merediths testimony, the jury heard the prosecutions evidence and Blanchettes defense, and resolved the credibility issue against Blanchette. Further, if Blanchette truly intended to return the property as he stated in his declaration, he could have testified to that in the first instance given the narrative nature of his testimony.

Finally, the jury convicted Blanchette of second degree vehicular burglary. Based on the circumstances of this case, we cannot conclude that even had Blanchette testified he intended to return the property, there would have been a different resultthe jury would not have convicted him of burglarizing a vehicle and would have acquitted him of receiving stolen property.

II. Jury Instructions

A. CALCRIM Nos. 220 and 222

Blanchette contends CALCRIM No. 220, Reasonable Doubt, violated his federal constitutional right to due process because it precluded [the jury] from considering the lack of evidence tying [him] to the offense, for example, a lack of [his]

intent regarding the property. He claims the error was compounded by the court instructing the jury with CALCRIM No. 222, Evidence[.] At least three appellate courts have rejected this same or similar argument.[4]

The trial court instructed the jury with CALCRIM No. 220, which stated: The fact that a criminal charge has been filed against the defendant[] is not evidence that the charge is true. You must not be biased against the defendant[] just because he has been arrested, charged with a crime, or brought to trial. [] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise. [] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.

The court also instructed the jury with CALCRIM No. 222, which stated in relevant part, Evidence is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence.

In People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509 (Westbrooks), the Court of Appeal, Fourth District, Division One, stated: CALCRIM No. 220[]

merely instructs the jury that it must consider only the evidence presented at trial in determining whether the People have met their burden of proof. In other words, this instruction informs the jury that the People may not meet their burden of proof based on evidence other than that offered at trial. The instruction does not tell the jury that it may not consider any perceived lack of evidence in determining whether there is a reasonable doubt as to a defendants guilt. Further, the remainder of the instructions clearly conveyed to the jury the notion that the People had the burden of proving [defendants] guilt beyond a reasonable doubt and that the jury was required to determine whether the People had met their burden of proving all of the facts essential to establishing his guilt.[5] (Italics added.) The Westbrooks court rejected the argument, also raised by Blanchette here, that People v. McCullough (1979) 100 Cal.App.3d 169 (McCullough), supports the defendants claim. (Westbrooks, supra, 151 Cal.App.4th at p. 1509.) The Westbrooks court distinguished McCullough: Unlike in McCullough, the trial court in this case did not tell the jury that reasonable doubt must arise from the evidence presented at trial, and, given the courts other instructions, it would not have been reasonable for the jury to interpret CALCRIM No. 220 as stating that the jury was precluded from considering any perceived lack of evidence in determining [defendants] guilt. [Citation.] (Westbrooks, supra, 151 Cal.App.4th at p. 1510, fn. omitted.)

In People v. Flores (2007) 153 Cal.App.4th 1088, 1093 (Flores), the Court of Appeal, Fifth District, addressed the identical issue here. The court stated:Here, the plain language of [CALCRIM No. 220] tells the jury that [u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty. [Citation.] . . . The only reasonable understanding of this language is that a lack of evidence could lead to reasonable doubt. [] Nothing about the instructions given implies to the jury that the defendant must adduce evidence that promotes reasonable doubt or that the defendant must persuade the jury of his or her innocence by evidence presented at trial. [Citation.]

Finally, in People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268-1269 (Guerrero), the Court of Appeal, Third District, stated: CALCRIM No. 220 does not suggest an impermissible definition of reasonable doubt to the jury. The instruction defines reasonable doubt as the absence of an abiding conviction in the truth of the charges. . . . [Citation.] The instruction neither lowers the prosecutions standard of proof nor raises the amount of doubt the jury must have in order to acquit a defendant. [] . . . CALCRIM No. 220 instructs the jury to acquit in the absence of evidence. . . . [Citation.] The jury is instructed to consider only the evidence, and to acquit unless the evidence proves defendants guilt beyond a reasonable doubt. If the government presents no evidence, then proof beyond a reasonable doubt is lacking, and a reasonable juror applying this instruction would acquit the defendant.

Blanchette offers no compelling justification for concluding

CALCRIM Nos. 220 and 222 are unconstitutional. We find the reasoning in Westbrooks, Flores, and Guerrero sound and conclude CALCRIM Nos. 220 and 222 properly define reasonable doubt and the evidence the jury may consider in making its determination whether the prosecutor satisfied its burden.

B. CALCRIM No. 224

Blanchette contends CALCRIM No. 224 lowers the prosecutions burden of proof because it requires the jury to find a defendant innocent rather than finding the prosecutor failed to establish guilt beyond a reasonable doubt. We disagree.

The trial court instructed the jury with CALCRIM No. 224, Circumstantial Evidence: Sufficiency of Evidence, as follows: Before you may rely on circumstantial

evidence to conclude that a fact necessary to find the defendant 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 find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant 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.)

In People v. Crew (2003) 31 Cal.4th 822, 847-848 (Crew), the California Supreme Court addressed the same issue concerning CALJIC No. 2.01 and other instructions referring to innocence. The court stated, The instructions in question use the word innocence to mean evidence less than that required to establish guilt, not to mean the defendant must establish innocence or that the prosecution has any burden other than proof beyond a reasonable doubt. [Citation.] (Id. at p. 848.) CALJIC No. 2.01 and CALCRIM No. 224 are similar.[6] Blanchette does not discuss Crew, but instead relies on a case from this court, People v. Han (2000) 78 Cal.App.4th 797 (Han).

In Han, supra, 78 Cal.App.4th at pages 808-809, this court discussed whether the use of the word innocence instead of lack of finding of guilt was potentially misleading. The court stated that although the instruction standing alone was potentially misleading when read with the standard instructions it was not prejudicial.

(But see People v. Ibarra (2007) 156 Cal.App.4th 1174, 1186-1187 [concluding CALCRIM No. 224 correctly states the law and finding Han unpersuasive].) Based on Crew, and the fact the trial court instructed the jury repeatedly on the correct burden of proof, we conclude the court properly instructed the jury with CALCRIM No. 224.

C. CALCRIM No. 372

Blanchette claims the trial court erroneously instructed the jury with CALCRIM No. 372, Defendants Flight, because there was no evidence he fled. Not so.

The trial court instructed the jury with CALCRIM No. 372 as follows: If the defendant fled or tried to flee (immediately after the crime was committed), that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.

In general, a flight instruction is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt. [Citations.] [F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested. [Citations.] Mere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt [citations], but the circumstances of departure from the crime scene may sometimes do so. [Citations.] (People v. Bradford (1997) 14 Cal.4th 1005, 1055.)

Here, there was sufficient evidence from which the jury could infer Blanchette was fleeing the gated community to escape detection. There was evidence Meredith saw Blanchette, who had no explanation for being in the gated community other than being lost, look into a briefcase, make eye contact with and nod at another man, and

walk towards the front of the gated community. From this evidence the jury could infer Blanchette and a confederate were in the gated community to commit burglaries, and after doing so, they fled. The fact he was walking is of no consequence because flight does not require the physical act of running.

Assuming arguendo the trial court should not have instructed the jury with CALCRIM No. 372, Blanchette was not prejudiced. CALCRIM No. 372 did not assume that flight was established, leaving that factual determination and its significance to the jury. (People v. Visciotti (1992) 2 Cal.4th 1, 61.) Further, the flight instruction benefited Blanchette because it told the jury it could not convict him based solely on the fact he fled if the jury so found. (People v. Jackson (1996) 13 Cal.4th 1164, 1224.)

III. Probation

Blanchette contends the trial court abused its discretion when it denied him probation because it did not give meaningful consideration to the factors listed in [California Rules of Court,] rule 4.14 [sic] as they pertained to [him]. We disagree.

The grant or denial of probation is within the trial courts discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion. [Citation.] [Citation.] In reviewing [a trial courts determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial courts order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances. [Citation.] (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.) Blanchette has not shown the trial court did not consider the factors listed in California Rules of Court, rule 4.414, or that its decision exceeded the bounds of reason.

After reading the probation and sentencing report, and attached letters, the trial court stated: [O]ne of the things in the probation report when I looked at this -- you know, by no means do I think . . . Blanchette is the bad person that I see in here a lot. But

I think he just has no respect for the system. [] When I look at it, hes got low-level drugs and thefts, but he keeps committing the drugs and theft crimes. And when I look at these traffic offenses, he just doesnt care whether he drives with a license or doesnt have a license. He just commits [Vehicle Code section] 14601s repeatedly, one after another. Like who cares about the law. [] . . . [] . . . And part of it is, um, the fact that this is your third felony. You are not John Dillinger by any means, but all the things that you have done -- the felonies that you have committed -- and this is your third -- are something that you have done. And when you violated your probation back in I think 2001 and 2002 and did an additional 220 days, that was as recently as 2002 that you did that -- and you are going to have to take responsibility for your actions and follow the law. [] . . . [] . . . The court read and considered the probation report and all its attachments. The court finds that considering [Blanchettes] -- the court considers [Blanchettes] request for probation and finds that he is not an appropriate candidate. Specifically, his past performance on probation has not been good. He violated his 1998 conviction several times, and as recently as March 25[,] [20]02 he was violated and did an additional 220 days in jail on that probation term. So probation is denied.

The probation report listed the criteria affecting probation that were applicable in this case. The report discussed the nature and seriousness of the offense, the fact Blanchette was not armed, but he was an active participant, the crime was not committed due to unusual circumstances, and the crime demonstrated planning and professionalism. The report also discusses Blanchettes prior record, probation performance, his willingness to comply with probation terms, his ability to comply with those terms, his unwillingness to express remorse, and the possibility of financial danger to the community. The record demonstrates the trial court read and considered the probation report, including the criteria affecting probation provided in California Rules of Court, rule 4.414, and its decision to deny probation was based on legitimate sentencing objectives. The trial court did not abuse its discretion in denying Blanchette probation.

DISPOSITION

The judgment is affirmed. The petition is denied.

OLEARY, ACTING P. J.

WE CONCUR:

FYBEL, J.

IKOLA, J.

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

[2] We will address his claims within the context of his petition for writ of habeas corpus. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding].)

[3] CALCRIM No. 1751, Defense to Receiving Stolen Property: Innocent Intent, states: The defendant is not guilty of receiving (stolen/extorted) property if (he/she) intended to (return the property to its owner/ [or] deliver the property to law enforcement) when (he/she) (bought/received/concealed/withheld) the property. [] If you have a reasonable doubt about whether the defendant intended to (return the property to its owner/ [or] deliver the property to law enforcement) when (he/she) (bought/received/concealed/withheld) the property, you must find (him/her) not guilty of receiving (stolen/extorted) property. [] [This defense does not apply if the defendant decided to (return the property to its owner/ [or] deliver the property to law enforcement) only after (he/she) wrongfully (bought/received/concealed/withheld) the property.] [The defense [also] does not apply if the defendant intended to (return the property to its owner/ [or] deliver the property to law enforcement) when (he/she) (bought/received/concealed/withheld) it, but later decided to (sell/conceal/withhold) the property].

[4] The Attorney General argues Blanchette waived appellate review of this issue because he did not object to the instructions at trial. Because these instructions affect Blanchettes substantial rights, we may review the claim even though defense counsel did not object. ( 1259.)

[5] In Westbrooks, the trial court also instructed the jury with the following instructions: CALCRIM No. 222, Evidence, and CALCRIM No. 223, Direct and Circumstantial Evidence: Defined. Here, the trial court instructed the jury with those instructions and CALCRIM No. 225, Circumstantial Evidence: Intent or Mental State.

[6] CALJIC No. 2.01, Sufficiency of Circumstantial EvidenceGenerally, states, in relevant part: Also, if the circumstantial evidence [as to any particular count] permits two reasonable interpretations, one of which points to the defendants guilt and the other to [his] [her] innocence, you must adopt that interpretation that points to the defendants innocence, and reject that interpretation that points to [his] [her] guilt.