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Case 1:15-cr-00058-CMA Document 131 Filed 11/25/16 USDC Colorado Page 1 of 9

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Action No. 15-cr-00058-CMA
UNITED STATES OF AMERICA,
Plaintiff,
v.
1.

MICHAEL TODD OSBORN,

Defendant.
________________________________________________________________
GOVERNMENT’S RESPONSE TO DEFENDANT’S REQUEST
TO VOLUNTARILY SURRENDER
________________________________________________________________
The United States of American hereby responds to that portion of the defendant’s
sentencing statement (Doc. #127) in which he requests to remain on bond after he is
sentenced. 1
1.

The government opposes the defendant’s request for permission to self-

report to the Bureau of Prisons after he is sentenced. At the conclusion of the
sentencing hearing, the government intends to request that the defendant be remanded
to custody. The defendant is a flight risk and has not fled to date, only because
incarceration has not been imminent.
2.

18 U.S.C. § 3143(a) provides, in pertinent part, that the judicial officer

should order that a person who has been found guilty of an offense and who is awaiting
execution of sentence be detained, unless the judicial officer finds by clear and

1

The government has set forth its position relating to the other topic addressed in the defendant’s Sentencing
Statement in its Memorandum Regarding the U.S.S.G. § 3B1 Role in Offense Adjustment (Doc. #128).

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Case 1:15-cr-00058-CMA Document 131 Filed 11/25/16 USDC Colorado Page 2 of 9

convincing evidence that the person is not likely to flee if released under § 3142 (b) or
(c).
3.

In support of his request, the defendant states that he has “successfully

remained on bond,” and that his conduct since he was arrested supports a finding by
the Court that he is not a flight risk if he is allowed to self-surrender to the Bureau of
Prisons. Doc. 127 at 7.
4.

While it is true that the defendant has remained free on bond until now, it

is also true that he has had no immediate reason to flee. It is significant, however, that
he has fled in the past when he became aware that his arrest could be imminent. On
February 11, 2015, he was charged in a restricted indictment in this case. The
government had information that the defendant was likely living at that time in
Connecticut. The case agent confirmed with the owner of the house located at 19 Duck
Pond Road, Westport, Connecticut that the defendant lived there with his family. The
agent also had a phone number believed to be the defendant’s.
5.

On or about February 26, 2015, the case agent contacted Mr. Osborn by

phone and asked him to meet S.A. Hegarty or another agent to look at some
documents. Osborn initially agreed and gave the 19 Duck Pond Road, Westport, CT
address. SA Hegarty told Osborn that he would contact him again soon with an agent’s
name with whom Osborn would meet during the week of March 2, 2015. 2 Shortly after
this call, Osborn left a message on SA Hegarty’s telephone advising that Osborn
wanted all contact to go through Osborn’s attorney. Following SA Hegarty’s call with
Osborn, Hegarty contacted the owner of the 19 Duck Pond Road rental house, and was

2

Osborn had previously been interviewed twice in California by Agent Hegarty in connection with this case, once in
August 2011, and once in June 2012.

2

Case 1:15-cr-00058-CMA Document 131 Filed 11/25/16 USDC Colorado Page 3 of 9

told that the landlord had just received a text from Osborn stating that Osborn would pay
the back rent owned and would be moving that weekend.
6.

On Sunday, March 1, 2015, SA Hegarty and local police officers

attempted to arrest Osborn at the rental house, but instead found that Osborn’s family’s
belongings were being moved by movers from Noah’s Ark Moving and Storage. The
movers advised that Osborn had been at the 19 Duck Pond Road house at 9:00 a.m.
that morning, had let them into the house, signed the moving contract, and left after five
minutes. At the officers’ request, the movers attempted to call Osborn and ask that he
return to the rental house to sign additional papers but Osborn refused, stating that he
was already in New York.
7.

On March 4, 2015, S.A. Hegarty spoke with Frank Land, the salesperson

from Noah’s Ark Moving and Storage who had previously spoken with Osborn. Land
explained that Osborn had called on February 28, 2015 and asked if Osborn could
move that same day. Land told Osborn that the earliest he could move him would be
March 1, 2015, the next day. Osborn’s belongings were delivered to Noah’s Ark,
Moving and Storage’s storage facility in the Bronx. Mr. Osborn failed to pay the moving
bill and has never retrieved his family’s household goods, furniture and other personal
belongings. They were auctioned off by the moving company.
8.

No arrests in this case were made until Defendant Osborn could be found.

He was ultimately located in New York City on May 12, 2015 by the U.S. Marshal’s
Service, who had called numerous hotels. The defendant was arrested at the Beacon
Hotel, 2130 Broadway, New York, New York, where he was staying with his family. He
had no permanent residence.

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Case 1:15-cr-00058-CMA Document 131 Filed 11/25/16 USDC Colorado Page 4 of 9

9.

It is not clear to the government where the defendant now lives, or that his

current address is permanent. To the government’s knowledge, since he so quickly
vacated the Duck Pond Road address in Connecticut that he was renting, he has had
no permanent address. He owns no real estate, and his children are said to be homeschooled. The Presentence Investigation Report (“PSR”) provides conflicting statements
on this point. See Doc. #129 at page 2, and Paragraphs 66-69 and 86. Although the
defendant states that the income he has been receiving has given him the ability to
obtain a permanent residence, it is not clear that he has done so.
10.

What is clear is that since the defendant has been on bond in this case, he

has moved numerous times, often without notice, and usually to hotels or short-stay
residences. Doc.# 129 at Paragraphs 4, 66-69. Attachments 1 and 2 (Memoranda from
Pretrial Services Officer).
11.

These Memoranda also rebut the defendant’s assertions that apart from

his living conditions, he has “maintained all bond conditions imposed upon him without
issues.” Doc.# 127-1. To the contrary, his compliance with pretrial supervision has been
“marginal at best.” Doc.# 129 Paragraphs 4 and 44, fn.2. The defendant was, among
other things, required to provide verification of any income or funds received, prohibited
from conducting any financial transactions through any other individual’s account, and
prohibited from co-mingling personal and business funds. Doc. 34 at 3. He has
apparently submitted only a few bank statements, and these were for accounts held in
his wife’s name, not his. Attachment 2 at 1. He has also stated that he received
payment for work through his wife’s account, Attachment 2 at 1, which was not
permitted by the conditions of his release. The defendant also received money through

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Case 1:15-cr-00058-CMA Document 131 Filed 11/25/16 USDC Colorado Page 5 of 9

a PayPal account, also in violation of the conditions of release. Attachment 2 at 2.
Further, in his letter to the Court, he reveals that since the beginning of 2016, his
clientele has grown considerably, and he references the income he has received from
this work. The government is not aware that he provided verification of all or any of this
income to the Pretrial Services officer as he was required as he was earning it. The
income is substantial, as it apparently enabled him to pay over $11,000/month in rent,
as well as pay off prior obligations. Doc. #129 at Paragraph 85. In addition, the
defendant has failed to consistently provide financial records when requested by the
supervising officer. Attachment 2 at 2. The government also questions whether the
defendant revealed to Pretrial Services any business entities he registered, as required.
A number of entities with which he states he is now associated appear are listed in the
PSR. Doc.# 129 at Paragraphs 87 and 88. Nor is the government satisfied that the
defendant has revealed the true nature of his income-producing activities. The
defendant’s statements about what he has been doing for a living have been
consistently evasive and obfuscatory. Doc. #127 at 2; Doc. #127-1; Doc. #129 at
Paragraphs 4, 44 fn. 2 and 80-82.
12.

The defendant states that he needs to remain free on bond so that he can

come up with the money to pay full restitution in this case. There are several problems
with this. First, according to the PSR, the defendant has substantial net worth and is
clearly capable of paying restitution in this case without remaining free on bond after he
is sentenced. Doc. #129 at Paragraph 85. Not all of his securities are restricted, and any
claim that he cannot liquidate them at this point is suspect, that having been to the
reason he gave the Magistrate in June 2015 for being unable to pay for an attorney.

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Case 1:15-cr-00058-CMA Document 131 Filed 11/25/16 USDC Colorado Page 6 of 9

Even if the shares are restricted, restitution can be paid while the defendant is serving
his sentence, at such time that they become unrestricted.
13.

Second, the defendant does not assure the Court of the payment of full

restitution if he is permitted to remain free on bond. His Sentencing Statement refers to
“Mr. Osborn’s belief that he may be able to repay the full amount of restitution.” Doc.#
127 at 8. And Mr. Osborn’s description of where the money would be coming from is
conspicuously vague. Doc. 127-1 (stating only that he has “several client projects” on
which he is “set to get paid.”) His promises to pay-- if only he is given more time-- are
woefully similar to his offense conduct in this case. He was a master at leading his
investors, time and again, to believe that they would soon be paid. Doc. #129 at
Paragraph 21. They never were.
14.

Of significant concern is the fact that the defendant has a proven record of

paying restitution and civil judgments with stolen funds. In this case, he used money he
fraudulently obtained from investors to pay back Mr. Eckert, one of the victims in People
of the State of California v. Michael Osborn Ison, 2011 WL 610196 (Cal. App. 4 Dist.)
(unpublished), Attachment 3. Mr. Osborn caused Co-defendant Engelen to wire this
$15,000 to Mr. Eckert’s attorney, and this conduct was charged in Courts 11 and 14 of
the Indictment. Doc. # 3. at 5-6. Counts 9 and 12 relate to the defendant’s use of
investor’s money to pay $50,000 toward the civil judgment in Sharp v. Victory Capital
Holding Corp., et. al. Attorney Harter represented the plaintiff in that case.
15.

Defendant Osborn also has a history of committing offenses while on

bond. Indeed, he committed the instant offenses while he was free on bond in People v.
Michael Osborn Ison, the grand theft auto/insufficient funds checks case referenced

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Case 1:15-cr-00058-CMA Document 131 Filed 11/25/16 USDC Colorado Page 7 of 9

above. He was arrested on August 5, 2009 and posted bail through Mehr Bail Bonds.
Doc. # 119 at 6-7. He was convicted in that case on July 2, 2010, and remanded to
custody. In fact, when he committed the offenses of conviction in this case, he was also
serving a sentence of probation in Superior Court in California Case No. CD158553.
Doc. # 129 at Paragraph 54.
16.

The defendant also has a history of failing to appear for court proceedings.

In Sharp v. Victory Capital Holding Corp., Case Number 05CC10976 in the Superior
Court of California, the defendant, as judgment debtor, failed to appear on December
10, 2009, and a warrant was issued for his arrest. Attachment 4. He also failed to
appear in January 2010 in his California grand theft auto case. His bond was increased
from $100,000 to $150,000, and he was again bailed out by Mehr Bail Bonds.
17.

Although he does not address it in his sentencing statement, the

defendant has recently received notice from the Securities and Exchange Commission
that the Commission may sue him in connection with a matter which could constitute
securities fraud. That matter is not related to the case at bar.
18.

Finally, while it is clearly true that the defendant admitted his fraudulent

acts after he was charged and arrested, the government would not agree that he
“readily” did so, given the statements he made to the case agent in 2011 and 2012
relating to this case and his sudden flight from Connecticut to New York in 2015.
However, the government does not dispute the fact that the defendant provided
substantial assistance in this case, and has accordingly filed its Motion Recommending
U.S.S.G. § 5K1.1 Departure (Doc #126), which clearly describes his assistance that
proved to be of value. The fact that he assisted in this way does not, however, in the

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Case 1:15-cr-00058-CMA Document 131 Filed 11/25/16 USDC Colorado Page 8 of 9

government’s considered opinion, negate the fact that he remains a flight risk, now that
his incarceration appears imminent.
19.

In sum, and for the reasons stated above, the government’s position at

sentencing will be that the defendant should be remanded to custody. The evidence is
neither clear nor convincing that he would not flee if released on bond after he is
sentenced.

Respectfully submitted,
ROBERT C. TROYER
Acting United States Attorney

By: s/ Linda Kaufman
Linda Kaufman
Assistant United States Attorney
U.S. Attorney’s Office
1225 17th Street, Suite 700
Denver, CO 80202
Telephone: (303) 454-0100
FAX: (303) 454-0401
E-mail: linda.kaufman@usdoj.gov
By: s/ Bishop Grewell
Bishop Grewell
Assistant United States Attorney
U.S. Attorney’s Office
1225 17th Street, Suite 700
Denver, CO 80202
Telephone: (303) 454-0100
FAX: (303) 454-0401
E-mail: bishop.grewell@usdoj.gov

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Case 1:15-cr-00058-CMA Document 131 Filed 11/25/16 USDC Colorado Page 9 of 9

CERTIFICATE OF SERVICE
I certify that on this 25th day of November, 2016, I electronically filed the
foregoing with the Clerk of the Court using the CM/ECF system which will send
notification of such filing to all counsel of record.
Mr. Matthew Belcher
Matthew_Belcher@fd.org
Mr. Jeffrey Pagliuca
jpagliuca@hmflaw.com

By: s/ Harmony Ragland
Harmony Ragland
Legal Assistant
U.S. Attorney’s Office
1225 17th Street, Suite 700
Denver, CO 80202
Telephone: (303) 454-0100
FAX: (303) 454-0401
E-mail: harmony.ragland@usdoj.gov

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Case 1:15-cr-00058-CMA Document 131-1 Filed 11/25/16 USDC Colorado Page 1 of 2

%,^o

,l
STATES

MEMORANDUM
To

Linda Kaufman
Assistant United States Attorney

From: Sherrie Blake
U.S. Probation Officer
Date

Aptil21,2016

Rer

t\/ichael Todd Osborn
Docket No. 15-cr-00058-CMA-01
NOTICE OF VIO LATION OF PRETRIAL RELEASE

On March 11,2016, a memorandum was submitted advising the parties of issues surrounding
the defendant's numerous residential address changes. The current memorandum is to provide
further updates regarding his residential status and to provide additional information regarding
new violations of pretrial release.
The defendant was instructed to provide a copy of his lease to u.s. Probation offlcer Rothman
onMarch 11,2016, and he failed to provide the lease on that date. The defendant stated he
would then provide the lease on Nilarch 15, 2016 and then again on March 17,2016, and failed
to do so. Asof the completion of this memorandum, there is no indicatlon thatthe defendant
has provided any form of documentation related to a lease or rental agreement for a residential
address in the Southern District of New York.

Additionally, bond condition (t) requires the defendant to provide the Pretrial Services Office with
verification of employment. Between the dates of August 15, 2015, and December 2, 201 5,
U.S. Probation Officer Rothman requested employment verification from the defendant on
approximately 6 occasions. The defendant stated he would provide a 1099 and failed to do so
upon each request. As of the date of this memorandum, the defendant has failed to provide a
paycheck, a 1099 or any other documentation to verify employment to U.S. Probation Officer
Rothman.
Bond condition (z) requires the defendant to not conduct any financial transactions through the
financial account of any business entity not previously disclosed to the supervision officer or
through any other individual financial account. ln April 2016, the defendant provided U.S.
Probation Officer Rothman with his wife's, Shenae Catherine Osborn's, bank statements for
January and February 2016. The defendant stated this is a joint account; however, only lvlrs.
Osborn's name is on the account statement. He indicated he had received payment for work
through her account, which is in violation of the bond condition. The defendant did not seek
approval, nor did U.S. Probation Officer Rolhman give approval for the defendant to use i/'lrs.
Osborn's checking account to receive funds.
Further, in reference to the aforementioned condition, in April 2016, the defendant plovided U.S.
Probation officer Rothman with a PayPal statement for Jan uary 7 , 2016, throug! Aprtl 6, 201 6.

Arrh.-*MEJ1 Z-

Case 1:15-cr-00058-CMA Document 131-1 Filed 11/25/16 USDC Colorado Page 2 of 2

That statement indicated the defendant received money through a PayPal account, which is
again in violation of the bond condition. The defendant did not seek approval, nor did U.S.
Probation Officer Rothman give approval for the defendant to receive funds through PayPal.
Bond condition (v) requires the defendant to provide access to any financial records requested
by the supervision probation officer. ln September 2015, U.S. Probation Officer Rothman
requested copies of the defendant's financial records. Twice in the month of September 201 5
the defendant told U.S. Probation Officer Rothman he would provide a financial statement and
he failed to do so.
Based on the aforementioned, it is recommended a bond review hearing be requested to
address the above violations of bond. U.S. Probation Officer Rothman is requesting the
defendant be directed to provide business account documentation, tax lnformation for 2015,
employment verification and a modification to the conditions stating the defendant shall maintain
a residence approved by Pretrial Services and provide 48 hours notice of any issues that would
require relocation.
Respectfully submitted,

s/ Sherrie Blake
Sherrie Blake
United States Probation Officer
APPROVED

s/ Garret Pfalmer
Garret C. Pfalmer
Supervisory United States Probation Officer

Cc

Christine M. Arguello
United States District Judge
Nina Y. Wang
United States l\ilagistrate Judge
[,4atthew Belcher

Federal Public Defender

Case 1:15-cr-00058-CMA Document 131-2 Filed 11/25/16 USDC Colorado Page 1 of 2

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14

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MEMORANDUM
To

Linda Kaufman
Assistant United States AttorneY

From: Sherrie Blake
U.S. Probation Officer

Date: March 11,2016
Re

Michael Todd Osborn
Docket No. 1 5-cr-00058-CMA-o1
NOTICE OF VIOLATION OF PRETRIAL REIEASE

On May '12, 2015, the above named defendant was arrested in the Southern District of New
York on charges emanating from the District of Colorado. On May 15, 2015, he was granted
pretrial release by the Honorable Sarah Newburn in the Southern District of New York On June
3, ZOtS, ne appeared before the Honorable Nina Y. Wang in the District of Colorado and was
granted release for charges including: eight (8) counts of wire Fraud, three (3) counts willfully
dausing Another to Engage in l\ilonetary Transactions in Property Derived from Specified
untawfut Activity, and three (3) counts Engaging in Nilonetary Transactions in Property Derived
from Specified Unlawful Activity.
On February 9, 2016, the defendant entered a plea of guilty to Count 5: Wire Fraud and Count
10: willfully causing Another to Engage in a Monetary Transaction in Property Derived from
Specified Unlawful Activity. Sentencing is set for May 24,2016.
One of the conditions of bond ordered on June 3, 2015, requires the defendant to be restricted
to his residence under a curfew to be determined by his pretrial services officer. To best
address this condition and to effect meaningful supervision, Prekial Services requires a stable
residence.
The defendant is currently supervised by U.S. Probation Officer Joshua Rothman in the
Southern District of New York.
Between the dates of June 2015 and March 2016, the defendant moved a minimum of seven

times. Most of these addresses were hotels or short stay residences, which are not considered
stable residences. Between February 29, 2016, and lvlarch 6, 2016, the defendant emailed
USPO Rothman five times stating he would be moving and then emailed again stating he either
did not move or when he moved he found the residence unacceptable and would be moving
again.
On March 7, 2016, the Probation Offlce in New York completed a home visit at which time the
defendant advised he would be moving again to a permanent address, would be signing a lease
and would provide the lease documentation to the Probation Office. The defendant has been
instructed to provide verification of the lease to the Probation Office by March 1 1 , 2016.

krrricr*nrtlf-

t

Case 1:15-cr-00058-CMA Document 131-2 Filed 11/25/16 USDC Colorado Page 2 of 2

The supervising probation officer in New York has been exceedingly patient with the defendant
regarding his many address changes. He has spoken with the defendant on numerous
occasions regarding the need to have a stable address and to provide verification of the
address through a lease agreement. The defendant's numerous moves have made supervision
very difficult, have made it almost impossible to verify the numerous addresses and nearly
impossible to conduct meaningful home visits. The numerous changes in residences in the last
6 days are considered unacceptable for supervision purposes.
Recently, as noted above, the defendant stated he will be moving into a permanent residence.
lf that does not occur, a request will be made for a bond violation hearing to address the
defendant's failure to maintain a stable address.
Respectfully submltted,

s/ Sherrie Blake
Sherrie Blake
United States Probation Officer

APPROVED

sl Garret Pfalmer
Garret C. Pfalmer
Unites States Supervising Probation Officer

Cc

Christine M. Arguello
United States District Judge
Nina Y. Wang
United States Magistrate Judge
Ivlatthew Belcher

Federal Public Defender

Case 1:15-cr-00058-CMA Document 131-3 Filed 11/25/16 USDC Colorado Page 1 of 2
SUPERIOR 6OURT OF CALIFORNIA,
COUNTY OF ORANGE
CENTRAL JUSTICE CENTER
MINUTE ORDER

Date:12l10/2009

Time; 09:00:00

AM

Dept: C64

Commissioner: Jane D, Myers
Clerk: Vicki Lorenz, Nancy Parker
Reoorter/ERM: Alice Wilbur /CSR#9538
Bailifi/court Attendant: J. McMillion

0SCG10976

Case lnit. Date: 10/06/2005
Case No:
Case Title: Sharp vs. Victory Capital Holding Gorp
Case Category: Civil -

Unlimited

Case Type: Breach of ContractAflarranty

EVENT ID/DOCUMENT lD: 70870345,80376604
EVENT TYPE: Appearance and Examination of Judgment Debtor
MOVING PARTY: GEORGE A SHARP
CAUSAL DOCUMENT/DATE FILED: Application and Order for Appearance
Judgment Debtor, 0E/O6/2009

and Examination of

APPEARANCES
GEORGE SHARP, Plaintiff is present.

No appearance by Judgment Debtor Michael Osborn

JUDGMENT DEBTOR EXAMINATION TE: MICHAEL OSBORN
The Court finds that proper notice was given as required by law and that Judgment Debtor MICHAEL
OSBORN received notice of the Order for Appearance of Judgment Debtor examination set this date at
9:00 a.m. in Department C64. Said party having failed to appear the Court orders:
BENCH WARRANT PREVIOUSLY ISSUED t{-19-2009 AND HELD TO THIS DATE, RE:
JUDGMENT DEBTOR MICHAEL OSBORN
RELEASED FOR SERVICE FORTHWITH / Bail set at $50,00.00
The Court orders counsel for Judgment Creditor to givE notice of the Bench Warant released for
service, bail amount and possiblB arrest, including the warning contained in CCP 708.1 1 0(e)

Annrm^2i- +
Date: 12110/2009

Dept: Cti4

MINUTE ORDER

Page: 1
Calendar No.:

Case 1:15-cr-00058-CMA Document 131-3 Filed 11/25/16 USDC Colorado Page 2 of 2
ATIAENEY

OFI PARTY WTFIOUT ATTORNE.{ fNsn]e &

A&.*3):

FOR COURI USE OAILY

George ShaD
7660 Fay Averue, Suite H122
La

lolla,

Telephon
E

CA

9207

No.:

Fer No. (OpIoMI)

310-498.11455

l4dl Addl966 (opliorBl):

ATToRNEY FOR

Bor }lo:

i?Varr?'.),'

SUPERIoR couRT oF CAUFoRNIA, COIrNTY OF ORANGE
JUSTICE CENTFRi

Santa Ana, c4927014045
a Central- 700 Civic Center Dr. West,
tr CMI Complex Center - 751 W Santa Ana Bvd., Santa Ana, cA927014512
Facllry -2314'l Moulton Pl$,vy., Laguna Hills, CA 9265&,1251
n Harbor-Laguna Hills
Rd., Newport Beach, CA 9266&2595
tr Harbor.t{owport Beach Facilrty - 4601 Jamboree
- 341 The City Dfue, Orange, CA 928693205
n l€rnoreaux
North - 1225 N. BerkeleyAve., P. O. Box 5000, Fullerton, CA 983&0500
n West
- 8141 13D Street, Westminster, cA 926834593

tr

CASE NUMBER:

PLAINTIFFIPETITIONER: George Sharp

05cc10976

DEFENDANT/RESPONDENT: Victory Capital Holdings Corp, et al
Cass assEned to:

BENCH WARRANT

Jd!E: l'tFrg
Departmeoi: c67
Date compbl lt filed: $n6rzoo5

Headng/lial date:

TO: M SHERIFF OF

COUNTY E

Orange

YOU ARE COMMANDED TO ARREST (NAME):

s/lulzt

x,

ANY PEAGE OFFICER OF THIS STATE

Midrael Osbom aka Michael Osbom ison

and bring him or her to the above named Juslice Center, or the nearest court if in session, for the setting of bail in the
amount of the wa,rant or to release on the petson's own reGogniancr" Any person arresid pursuant 10 Codo of Civil
Procedure 51993, snall be rcleased ffom cuslody if he or she cannot be brought before the court within 12 hours of aftest,
and the person shall not be arested if the courtwill not be in session during the 12-hour period following the arest,

n F Heighl: 5' rv
Age: :s
Eye Cobr: mwn

Ser E M

Physicaldescription:
Hair Co

Brown

The last known aodrcss of lhe person to be arresled is 1410
To be completed by the

Pine

Tree

weight;
(brrt,

16v

Race' GucasEm
Date of Birth: $[/5lrglu

La Habra, CA 90631

cle*:
This warrant expires on (date);

BAIL SET AT: $

Upon posting bail or promlsing to appear, set appearanca on (date)
lo€axed at the above Juatace Csnter,

at

E

Good cause is shown as provided in Penal Coda $ 840 for nighttime sewice.
This person may be released upon a promlse to sppear as provided by Code of Civil Procedure S 1993.1.
The issuance of lhis wanant is for the following reason:
Failure to appear on (date): 12-1u-ue for an €xamination hearing (CCP481.160, ?08.170), served on (daie):
pursuant to a subpoena (CCP 1993), served on
Faiturs to appear on (date):
Contempt lccP 1209), serwd on (date):
Failure of witness to attend hearing {CCP 1993) on (date):
served on (date):
Othor
, served on (dats):

-

I

E
I
I

tr

u

_

(daie):_

_

_,

(specify):

_

u1-zwj
-t

-Seal

lssued In the County of Ot'ange on (date):
Form

Miloatory ttae

1525 (Rov. Juty ,l, 2006)

*--."--BENC H WARRANT

JUDICiAL OFFICER
Code of CIVII Proesdure, 5s 491.160,
708.170, ,t209, 19S3

Case 1:15-cr-00058-CMA Document 131-4 Filed 11/25/16 USDC Colorado Page 1 of 8
rage z or 6

W'estlaw
Page

I WL

1

6101916 (Cal.App.4 Dist.)
Nonpublished/Noncitable (Cal. Rules ofCourt, Rules 8.1105 and 8.1110,8.11fO
(Cite as: 2011 WL 6101916 (Cal.App.4 Dist.))

Not Reported in Cal.Rptr.3d, 201

>
Onlv the Westiaw citation is currentlv available

Eckert. He also argues the court erred in splitting
the issuance of the NSF checks to Eckert into two
separate offenses. We disagree and

California Rules of Court, rule 8.1 I 15, restricts
citation of unpublished opinions in Califomia courts

affrm.

I
FACTS
A. Car Purchases:

Court ofAppeal, Fourth District, Division 3, Cali-

fomia.
The PEOPLE, Plaintiff and Respondent,
v.

Michael Osborn ISON, Defendant and Appellant.
No. G0,M000.
(Super.Ct.No. 09NF2293)
Dec. 8,2011.

Appeal from a judgment of the Superior Court of
Orange County, Richard M. King, Judge. Affirmed.
William D. Farber, under appointment by the Court
ofAppeal, for Defendant and Appellant.
Kamala D. Harris, Auomey General, Dane R. Gillette, Chief Assistant Attomey General, Gary W.
Schons, Assistant Attomey General, Collette C.
Cavalier and Steve Oetting, Deputy Attomeys General, for Plaintiff and Respondent.

OPINION

On July 3,2009, defendant told CarMax sales
representative Alexandra Chavez that he wanted to
buy a $47,485.15 Mercedes Benz. He sought to
purchase tle vehicle with 515,000 down, the rest to
be financed. Defendant told Chavez that he eamed
S78,753 per month and lived at a Fullerton address.
Defendant gave Chavez a $15,000 check drawn

on the business account of Principal Capital Group
and postdated to July 7, 2009. He asked Chavez to

hold the check until July 7, 2009, because

he

needed to transfer funds into the account on July 5,

2009 in order to cover the check. Defendant pulled
up a Morgan Stanley bank account statement on a
CarMax computff to show that he had funds in that
account sufficient to transfer to the Principal Capital Group account to cover the $15,000 check. As
proof that he was authorized to use the company

checking account, defendant showed Chavez

a

credit card on which both his name and the name of

Principal Capital Group appeared. Defendant
signed a "held check" form in connection with the
postdated check, and took possession of the Mercedes Benz on July 3, 2009.

MOORE, Acting P.J.

*l

Michael Osbom Ison (defendant) obtained
two vehicles, a Mercedes Benz and a BMW, from
CarMax without paying for them. He was convicted
of two counts of grand theft auto (Pen.Code, $ 487,
subd. (d)(l )) and two counts of fraudulently obtain-

ing property by false pretenses (Pen.Code, $ 532,
subd. (a)). With respect to a sepamte matter, defendant was also convicted of two counts of issuing
insufficient funds checks (Pen.Code, r\ 476a. subd.
(a)) payable to Steven Eckert. Defendant contends
the court erred in admitting evidence that he issued
an insufficient funds check (tJSF check) to his
landlady shortly before he issued the NSF checks to

On July 7,2009, defendant contacted Chayez
and told her that he wanted to purchase a second
vehicle, a BMW. Defendant gave Chavez a check
for the S5,000 down payment and requested that
Chavez hold the check until the following day. Just
as previously, he needed to transfer flrnds liom another account in order to cover the check. He again
pulled up the Morgan Stanley bank account statemellt on a CarMax computer to show that he had
enough funds to cover both the down payment on
the Mercedes Benz and the down pa).rnent on the

BMW. He completed another "held check" form,

/.rrAc*nae#r- 3
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Page J oI 6

Page 2

Not Reported in Cal.Rptr.34 2011 WL 6101916 (Cal.App.4 Dist.)
Nonpublished^loncitable (Cal. Rules ofCourt, Rules 8.1105 and

8.1110,8.lll5)

(Cite as: 2011 WL 61019l6 (Cal.App.4 Dist.))
this one with respect to the check given in connection with the purchase of the BMW. Defendant took
possession ofthe BMW on July 7, 2009.

able

Both the $15,000 check and the $5,000 check
were later rejected for processing due to insufficient funds. On August 5,2009, a CarMa,r repres-

When defendant gave Eckert the replacement
checks, he did not say that they wer€n't good, that
he needed to transfer funds to cover them, or that
Eckert needed to hold them. Eckert attempted to
cash the checks on April 3,2009, but leamed from

entative reported the matter to the Buena Park Po-

the bank that there were insufficient funds in the

lice Department, and stolen vehicle reports were
prepared. The police advised CarMax to have the
tracking devices on the cars activated. That day, the
police recovered the cars at a residence in San Diego.

*2 Defendant appeared shocked when the police showed up. He told them that he was unemployed, had no money, and had been liying at the
San Diego residence for the preceding six months.
Defendant initially claimed to have been unaware
that his two checks had bounced. Then he changed
his story. He acknowledged not having the money
in the checking account to cover the deposit checks
at the time he wrote them. He stated that he had intended to wke sufficient funds to cover the checks,
but never got around to it.

As the police were transporting defendant to
Orange County, he repeatedly asked how they
found him. The police explained that the cars had
tracking systems. Defendant displayed surprise.
B. Eckert NSF Checks:

In March 2009, Eckert, a business acquaintance, loaned defendant $12,000. Defendant promised to pay Eckert S15,000 in retum-S 12,000 in
principal and $3,000 in interest. Defendant wrote a
$15,000 chec( postdated to April 1, 2009, and told
Eckert the money would be available by April l,
2009. On April 1, 2009, Eckert asked defendant to
replace the single $15,000 check with two checks,
so that he could deposit them into different accounts. Defendant agreed, and exchanged two
checks, in the respective amounts of $12,000 and
$3,000, payable to Eckert, for the one $15,000
check. The new checks were dated April l, 2009,
the date defendant agreed the funds would be avail-

@ 2015

checking account to cover the checks. Eckert made
numerous unsuccessful attempts to obtain payment
on the checks. Interestingly, the $15,000 was repaid
on June 14, 2010, the day before the trial began.
C. Charges and Trial:

Defendant was charged by information wirh
committing grand theft auto on July 3,2009, in violation of Penal Code sectioo 487, subd. (d)(l)
(count one), fiaudulently obtaining property by
false pretenses on July 3, 2009, in violation of Penal Code section 532, subdivision (a) (count two),
committing grand theft auto on July 7, 2009, in yiolation of Penal Code section 487, subd- (d)(l)
(count three), fraudulently obtaining propefiy by
false pretenses on July 7, 2009, in violation of Penal Code section 532, subdivision (a) (count four),
receiving stolen property iD violation of Penal Code
section 496d, subdivision (a) with respect to a 2007

Mercedes Benz CL450 (count five), receiving
stolen property in violation of Penal Code section
496d, subdivision (a) with respect to a 2007 BMW
550i (count six), issuing an NSF check in the
amount of $12,000 on or about April l, 2009 in violation of Penal Code section 476a, subdivision (a)
(count seven), and issuing an NSF check in the
amount of $3,000 on or about April 1, 2009 in violation of Penal Code section 476a, subdivision (a)
(count eight).

*3 The jury found defendant guilty as charged
on counts one, two, three, four, seven and eighg
and not guilty as to altemative counts five and six.
The court sentenced defendant to state prison for
the middle term of two years on each of count one
and count three, the sentence on count three to be
served concurrently with the sentence on count one.
The court stayed the sentences on counts two and

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Page 3

Not Reported in Cal.Rptr.3d, 201 1 WL 6101916 (Cal.App.4 Dist.)
Nonpublished^loncitable (Cal. Rules ofCourt, Rules 8.1I05 and E.1110,8.1115)
(Cite as: 2011 WL 610l9l6 (Cal.App.4 Dist.))

four. The court sentenced defendant to eight
months on count seven, to be served consecutively
to the sentence on count one. It sentenced him to
two years on count eight, to be served concurrently
with the sentence on count one. The total term in
state prison was two years and eight months.
Defendant filed a notice ofappeal.

The court gave the jury two limiting instrucIt gaye CALCRIM No. 303, which provides:
"Dudng the trial, certain evidence was admitted for
a limited purpose. You may consider that evidence
tions.

only for that purpose and for no other."
The court also used CALCRIM No. 375 and instucted the jury: "The People presented evidence

Before trial, defendant moved to exclude evidof unpaid checks to his landlady and opposed
the People's motion to admit such evidence. De-

that the defendant committed the offense of issuing
a check with insufficient funds that was not charged
in this case. ['lf] ... [']ll If you decide that the defendant committed the offense, you may, but are not required to, consider that evidence for the limited
purpose of deciding whether or not: ['ll] The defendant knew that there were insufficient funds available in his account when he allegedly acted in this
case. [![ Do not consider this evidence for any other purpose except for the limited purpose of whether the defendant knew he had insufficient funds to
coyer the checks that are the basis of the crimes
charged in Counts seven and eight. [!f] Do not conclude from this evidence that the defendant has a
bad character or is disposed to commit crime."

evidence should be excluded under Evidence Code
section 352 because its probative value was outweighed by its prejudicial impact.

Analysis*4 On appeal, defendant says th€ court erred in
admitting evidence of the Saucedo NSF check. He
contends that the probatiye value of the evidence
witl respect to counts seven and eight was outweighed by the prejudicial impact with respect to

II
DISCUSSION
A. bidence ofNSF Check to Landlady:
(I)

BackgroundOn March 18, 2009, defendant gave a $10,300

check to his landlady, Rose Saucedo. Saucedo received a notice dated March 26, 2009 from her
bank, retuming d€fendant's check for insufficient
funds. Saucedo contacted defendant immediately
and informed him that the check had bounced.

ence

fendant argued that the evidence of the Saucedo
NSF check violated the proscription of Evidence
Code section ll0l, subdivision (a) against the use
of character evidence to prove conduct and that the

In ruling on defendanfs motion, the trial court
observed that the People, with respect to the Eckert
NSF charges, had the burden of proving that defendant knew there were insufficient funds in his
checking account when he wrote the S12,000 and
$3,000 checks to Eckert. It found that the evidence
that defendant was put on notice that the Saucedo
check had bounced was probative of the issue of
defendant's knowledge of the insufficiency of funds
to cover the Ecken checks. It fufiher found that the
prejudicial effect of the evidence did not substantially outweigh its probative value. In exercising its
discretion under Evidence Code section 352, the
court ruled that evidence of the Saucedo NSF check
was admissible.

(2) Argunent and

counts one and three. He asserts that the court committed prejudicial error that denied him his rights to
a lair trial and to due process of law.

" Evidence Code section 1101, subdivision (a)
generally prohibits the admission of evidence of a
prior criminal act against a criminal

defendant

'when offered to prove his or her conduct on a spe-

cified occasion.' Subdivision (b) of that

section,

however, provides that such evidence is admissible
when relevart to prove some fact in issue, such as

... knowledge...."

(

People r,. Lindberg (2008) 45

c?1.4rh 1,22,82 Cal.Rptr.3d 323, 190 P.3d 664.)

"

'The admissibility of other crimes evidence
(l) the materiality of the facts sought to

depends on

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Case 1:15-cr-00058-CMA Document 131-4 Filed 11/25/16 USDC Colorado Page 4 of 8
rage

Not Reporred in cal.Rptr.3d, 2011 wL 6101916 (cal.App. 4 Dist.)
Nonpublished,t{oncitable (Cal. Rules ofCourt, Rules 8.1105 and 8.1110,8.1115)

) or 6

Page 4

(Cite as: 2011 WL 6101916 (Cal.App.4 Disr))
be proved, (2) the tendency of the uncharged crimes

to prove those facts, and (3) the existence of any
rule or policy requiring exclusion of the evidence.'
[Citation.] Evidence may be excluded under Evidence Code section 352 if its probative value is
'substantially outweighed by the probability that its
admission would cr€ate substantial danger of undue
prejudice, of confusing the issues, or of misleading
the jury.' [Citation.] 'Because substantial prejudice
is inherent in the case of uncharged offenses, such
evidence is admissible only it if has substantial probative value.' [Citation.]" ( People v. Lindberg,
supra, 45 Cal.4lh at pp. 2223, 82 Cal.Rptr.3d 323,
190 P.3d 664.) "The decision whetler to admit other crimes evidence rests within the discretion of the
trial court. [Citation.]" (td. at p.23,82 Cal.Rptr.3d
323. 190 P.3d 664.)
Here, the court determined that the evidence in
question, having to do with the NSF check written
to Saucedo, was probative with respect to the issue
of whether defendant knew that there were insufficient funds in the checking account to cover the two
checks to Eckert at the time he wrote them. Inas-

much as this knowledge was an element of the
crime for which defendant was charged (Pen.Code,
$ 476a. subd. (a)), it was clearly a material fact to
be proved at trial. Furthermore, the evidence that
Saucedo had told defendant the $10,300 check had
bounced had a tendency to prove defendant knew
there were insufficient funds in the account to cover
the two additional checks totaling $15,000 payable
to Eckert. Having satisfied the f,irst two prongs of

the

jury." (Evid.Code, $ 352.) Defendant claims the
of undue prejudice is clear. Along those

danger

lines, he cites United States v. Lewis (9th Cir-1986)
787 F.2d 1318. in which the court observed: "'Our
reluctance to sanction the use of evidence of other
crimes stems from the underlying premise of our
criminal justice system, that the defendant must be
tried for what he did, not for who he is. Under our
system, an individual may be convicted only for the
offense of which he is charged and not for other unrelated criminal acts which he may have committed.' " (ld. at p. 1321.)

*5 In order to ensure that a defendant is convicted only of the offense of which he is charged, a
court may give limiting instructions. ( People v

Lindberg, supra, 45 Cal.4th al pp. 25-26, 82
Cal.Rptr.3d 323, 190 P.3d 664.) Here, the court instructed the jury that it was not pernitted to consider the evidence of the uncharged NSF check "for
any other purpose except for the limited purpose of
whether the defendant knew he had insufficient
funds to cover the checks that are the basis of the
crimes charged in Counts seyen and eight." It also
specifically instructed the jury that it could "not
conclude from this evidence that the defendant
[had] a bad character or [was] disposed to commit
crime." The instructions in this matter were simple
enough

to follow. "we presume the jury fotlowed
( People v. Lindherg,

these instructions. [Citation.]"

supra. 45 Cal.4th at p. 26, 82 Cal.Rptr.3d 323. 190
P.3d 664.)

the test discussed in People v. Lindberg, suPra. 45
cal.4th 1, 82 Cal.Rptr.3d 323, 190 P.3d 664. we
tum to the third prong-" 'the existence of any rule

Defendant disagrees. He says: "The trial court
ened by failing to consider that it would be impossible for the jury to compartmentalize limited

(

evidence of the March 2009 Saucedo check exclusively to counts 7 and 8. Ineyitably---rven with limiting instructions----once evidence of appellant's bad
check to Saucedo became known, the jury would
necessarily conclude that appellant had a propensity
to write nonsuffrcient fund checks, that if he did it
once to his landlord, and again to Eckert, he must
certainly have done it again on counts I and 3 in regard to the CARMAX purchases, and that he was

or policy requiring exclusion of the evidence.'
Id. atp.22,82 Cal.Rptr.3d 323, 190 P.3d 664.)

"

The applicable rule here is Evidence Code section 352, which, as noted above, permits the court
to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will ... create substantial danger of undue
prejudice, of confusing the issues, or of misleading

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Not Reported in cal.Rptr.3d, 201 I wL 6101916 (cal.App.4 Dist.)
Nonpublished/Noncitable (Cal. Rules ofCourt, Rules 8.1105 and
(Cite as: 2011 WL 6101916 (Cal.App.4 DisL))

Page 5

E.tll0,8.1ll5)

hence guilty as well on those counts."

out, the two checks were paft and parcel of a single
transaction. Defendant acknowledges that the issue

However, as the People point out, defendant
was not charged with writing NSF checks in connection with the procurement of the two cars fiom
CarMa,y. Rather, in counts one and three, he was
charged with grand theft auto. Indeed, when he obtained tho caxs from CarMax, defendant specifically
disclosed that he did not have the funds in the
checking accounts to cover the deposit checks. The
$and theft auto charges were not based on issuing
NSF checks, but rather on defendant's disclosing
that he did not have the cash to cover the down pay-

here is one

ments but falsely representing that he intended to
transfer the necessary cash.

We conclude that the court did not abuse its
discretion in admitting the evidence of the NSF
Saucedo check with limiting instructions. Even
were we to conclude otherwise, we would hold that
any error was harmless. ( People v. Lindberg,
supra, 45 Cal.4th at p.26, 82 Cal.Rptr.3d 323. 190
P.3d 664 lharmless error standard].) At the time defendant obtained the two cars, be falsely represented that he had a monthly income of $78,753, when
he was unemployed, and he gave a false address,
apparentty believing that CarMax would be unable
to locate him, and the vehicles. He represented that
he did not have the cash in the checking account
upon which he was writing the deposit checks to
cover those checks, but that he intended to transfer
funds to cover the checks later on. He did not do so.
We conclude that "a result more favorable to defendant was not reasonably probable absent admission of the prior crime [ ] evidence. [Citations.]" (
Id atp.26,82 Cal.Rptr.3d 323, 190 P.3d 664.)
B. Splitting of Charges with Respect to Eckert NSF
Checl<s:

*6 Defendant claims the state impermissibly
split the NSF check charge in two. He emphasizes
that he initially wrote only one check, in the
amount of $15,000, to Eckert and that Eckeft later
asked him to replace that check with two checks,
one in the amount of $12,000 and the other in the
amount of $3,000. However, as defendant points

@

of multiple convictions, not

multiple

punishments.

Defendant cites, People v. Rouser (1997) 59
Cal.App.4th 1065,69 Cal.Rptr.2d 563, which states

the general rule: "A single crime cannot be fragmented into more than one offense. [Citations.]" (
]d ar p. 1073, 69 Cal.Rprr.2d 563.) At the same
time, "[u]nless one offense is necessarily included
in the other [citation], multiple convictions can be
based upon a single criminal act or an indivisible
course of criminal conduct ( [Pen.Code,] S 954.)" (
People v. Benavicles (2005) 35 Cal.4th 69, 97,24
Cal.Rptr.3d 507, I05 P.3d 1099.)

In the

matter before us, the convictions

are

based upon Penal Code section 476a. Section 476a

provides in pertinent part: "(a) Any person who...
willfully, with intent to defiau4 makes or draws or
utters or delivers any checlq ... upon any bank or
depositary ..., for the payment of money, knowing
at the time of that making, &awing, uttering, or delive ng that the maker or drawer ... has not suflicient funds in, or credit with the bank or depositrry,
... for the palment of that check, ... and all other
checks, ... upon firnds then outstanding, in full upon
its presentation,... is punishable by imprisonment
in a county jail for not more than one year, or in the
state pdson. fifl @) However, if the total amount of
all such checks, ... that the defendant is charged
with and convicted of making, drawing, or uttering
does not exceed four hundred fifty dollars (5450),
the offense is punishable only by imprisonment in
the countyjail for not more than one year...."

The California Supreme Court addressed this
in In re Dick (1966) 64 Ca1.2d 272, 49
Cal.Rptr- 673, 411 P.zd 561. As that court obsewed: "Prior to 1955 the issuance of any one
check or each subsequent check, regardless of the
amounts, constituted violations of section 476a and
each violation was a felony. ln that year the section
was amended by the addition of subdivision (b) to
the former language.... [Citation.]" ( In re Dick,
statute

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Page 6

Not Reported in cal.Rptr.3d,20l I wL 6101916 (cal.App.4 Dist.)
Nonpublished/Noncitable (Cal. Rules ofCourt, Rules 8.1105 and 8.1110,8.1115)
(Cite as: 201I WL 6101916 (Cal.App. 4 Dist.))
supra, 64 Cal.2d at p. 273, 49 CaLRptr. 673, 411
P.2d 561.) Subdivision (b) "purports to quali! subdivision (a) only in the case where the total amount
of the checks 'that the defendant is charged with
and convicted of making ... does not exceed [four
hundredl fifty dollars (5[450] ).' Where the tot l
exceeds $[450] subdivision (b) does not purport to

affect the established law and, ... the writing of

with insufficient funds prior to
the amendment constituted a felony." ( In re Dick.
supra, 64 Cal.2d at p. 276, 49 CaLRplr. 613, 4ll
P.2d 56r.)
each and any check

In short, the California Supreme Court conto Penal Code section 476E
felon
continues
to issue fi'audulent
"when the
cluded with respect

checks he cannot do so with complete immunity.
Accordingly, after having committed a felony either
by the issuance of a single check or a series of
checks the total of which exceeds $[450], his issu-

ance

of

further liaudulent checks

or

series of

checks must be deemed to expose him for a second
time to the same penalties as in the case of an original wrongdoer." ( In re Diclg xtpra, 64 Cd.2d at

p.276, 49 Cal.Rptr.673,411 P.2d 561.) As applied
to this case, when defendant issued the first check
in an amount exceeding M50, he committed a
felony, and when he thereafter issued the second
check, also in an amount exceeding M50, he committed a second felony. Defendant cites no case
construing this statute differently and indeed, he
does not acknowledge In re Dick, supra, 64 Cal.zd
2'72,49 Cal.Rp$.673,41I P.2d 561 ar all.

*7 Rather, deiendant cites cases having to do
with different crimes, and seeks to have us apply
those cases by analogy. He cites: .L re Joltnson
(1966) 65 Cal.2d 393. 54 Cal.Rptr. 873,420 P.2d
393 [under Health

&

Saf.Code. S 11501, delendant

guilty of a single sale of heroin where he delivered
a sample first with the remainder to follow if the
sample was found to be good]; People v. Stephens
(1889) 79 Cal. 428,21 P. 856 [defendant cannot be

for sepamte statements made
one purportedly libelous article); People y.

repeatedly prosecuted

in

Rouser, suprq, 59 Cal.App.4th 1065, 69
Cal.Rptr.2d 563 [possession of two different controlled substances while in prison is construed as
one offense under Pen.Code, S 4573.61; People v.
Bowie (1977) 72 Cal.App.3d 143, 140 Cal.Rptr. 49
fuossession of ll blank checks with intent to defraud is only one crime under Pen.Code, $ 475];
and. People v. Schroeder (1968) 264 Cal.App.2d
217, 70 Cal.Rptr. 491 [possession of various quant-

ities of opiates is a single offense and possession of
various quantities of morphine derivatives is a
second offense, under Health & Saf.Code, $ 11500
]. However, defendant does not address any of the
statutes relied upon in those cases or state hor their
wording compares to the wording of Penal Code
section 476a, at issue in the matter before us.

The People mention the case of People v.
Bailey (196\) 55 Cal.2d 514, l l Cal.Rptr. 543, 360
P.2d 39. "ln Bailey, t}le court explained: 'Whether a
series of wrongful acts constitutes a single offense
or multiple offenses depends upon the facts of each
case, and a defendant may be properly convicted
upon separate counts charging gand theft from the
same person

if

the evidence shows that the offenses

are separate and distinct a.nd were not committed
pursuant to one intention, one general impulse, and
one plan.' lcitation.]" ( People v. Mitchell (2008)
164 Ca1.App.4th 442, 456, 78 Cal.Rptr.3d 855.)

However, the Bailey doctrine is not applied in
contexts. As the court ia People v. Mitchell,
supra, 164, Cal.App.4th 442 observed, "the Bailqt
doctrine should [not] be extended to forgery. That
doctrine was developed for the crime of theft.... The
essential act in all O?es of theft is taking. If a certain amount of money or property has been taken
pursuant to one plan, it is most reasonable to con-

all

sider the whole plan rather than to differentiate
each component part. lcitation.] The real essence
of the crime of forgery, however, is not concemed
with the end, i.e., what is obtained or taken by the

forgery; it has to do with the means, i.e., the act of
signing the name of another with intent to defiaud
and without authority, or of falsely making a docu-

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Page U oI E

Not Reported in Cal.Rptr.3d, 201

I WL

Page 7

6101916 (Cal.App.4 Dist.)

Nonpublished,t{oncitable (Cal. Rules of Court, Rules 8.1I05 and
(Cite as: 20ll WL 6101916 (Cal.App.4 Dist.))
ment, or of uttering the document with intent to defraud. Theft pursuant to a plal cal be viewed as a
large total taking accomplished by smaller takings.
It is difiicult to apply an analogous concept to forgery. The designation of a series of forgeries as one
forgery would be a confusing fiction.' [Citation.]" (
Id. atp.45'1, I I Cal.Rptr. j43, 360 P.2d 39.)

8.1

I10, E.1115)

Not Reported in Cal.Rptr.3d, 201I WL

6101916

(Cal.App. 4 Dist.)
END OF DOCUMENT

The crime of issuing an NSF check is similar to
the crime of forgery in that the crime has to do with
the means, i.e., the act of issuing the check. where
the Bailey doctrine is concemed, it makes sense for
a different rule to apply in the context of theft than
in the context of negotiable instruments or, in particular. the context of the contemporaneous issuance of multiple NSF checks. Although in this case
the payee, Eckert, \das the same with respect to
each check, it is not necessarily the case that only
Eckert stood to be harmed by the issuance of the
NSF checks. Eckert could have put the checks into
the stream of commerce in different fashions. That
is to say, he could have endorsed the checks over to
different payees, or he could have deposited them at
different banking institutions. Each check, as a ne-

gotiable insfiument, had the potential to harm different persons or entities. Consequently, we find
tie issuance of a single NSF check to be analogous
to the forging of a single instrument, such that the
two crimes should be treated the same where the
Bciley doctrine is concemed.

"8 We decline to apply the Bailey doctrine in
this case and instead apply the rules enunciated in
h re Dick, supra, 64 Cal.?d 272,49 Cal.Rptr. 673.
4l I P.2d 561. Defendant was properly convicted of
two counts of issuing NSF checks in violation of
Penal Code section 476a, subdivision (a).

III
DISPOSITION
The judgment is affirmed.

WE CONCUR: ARONSON and IKOLA, JJ.
Cal.App. 4 Dist.,20l I
People v. Ison

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Case 1:15-cr-00058-CMA Document 131-4 Filed 11/25/16 USDC Colorado Page 8 of 8
Yage 2 ot 19

Westtaw.
Cal.Rules ofCourt, Rule 8.

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Formerly cited as CA ST MISC Rule 977

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Formerly cited as CA ST MISC Rule 977
West's Annotated Califomia Codes Cunentness

Califomia Rules of Court (Refs & Annos)
(g Title 8. Appellate Rules(Refs & Amos)
\a Division 5. Publication ofAppellate Opinions (Refs & Annos)
.+ Rule 8. 1l15. Citation of opinions

(a) Unpublished opinion

Except as provided in (b), an opinion of a Califomia Court of Appeal orsupe or court appellate division that is
not certified for publication or ordered published must not be cited or relied on by a court or a party in any other
action.

(b) Exceptions
An unpublished opinion may be cited or relied on
(l ) When the opinion is relevant under the doctrines of law ofthe case, res judicata, or collateml €stoppel; or
(2) When the opinion is relevant to a criminal or disciplinary action because it states reasons for a decision affecting the same defendant or respondent in another such action.

(c) Citation procedure

A copy ofan opinion citable under (b) or ofa cited opinion of any court that is available only in a computerbased source ofdecisional law must be fumished to the court and all parties by aftaching it to the document in
which it is cited or, ifthe citation will be made orally, by letter within a reasonable time in advance ofcitation
(d) When a published opinion may be cited
A published Califomia opinion may be cited or relied on as soon as it is certified for publication or ordered published.

CREDIT(S)
(Formerly Rule 977, adopted, eff. Jan. l, 2005. Renumbered Rule 8. 1115 and amended, eff. Jan. l, 2007.)

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