Opinion
G044000 Super. Ct. No. 09NF2293
12-08-2011
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL OSBORN ISON, Defendant and Appellant.
William D. Farber, 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, Collette C. Cavalier and Steve Oetting, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed.
William D. Farber, 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, Collette C. Cavalier and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
Michael Osborn 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)(1)) and two counts of fraudulently obtaining property by false pretenses (Pen. Code, § 532, subd. (a)). With respect to a separate matter, defendant was also convicted of two counts of issuing insufficient funds checks (Pen. Code, § 476a, subd. (a)) payable to Steven Eckert. Defendant contends the court erred in admitting evidence that he issued an insufficient funds check (NSF check) to his landlady shortly before he issued the NSF checks to Eckert. He also argues the court erred in splitting the issuance of the NSF checks to Eckert into two separate offenses. We disagree and affirm.
I
FACTS
A. Car Purchases:
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 the vehicle with $15,000 down, the rest to be financed. Defendant told Chavez that he earned $78,753 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 computer 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.
On July 7, 2009, defendant contacted Chavez and told her that he wanted to purchase a second vehicle, a BMW. Defendant gave Chavez a check for the $5,000 down payment and requested that Chavez hold the check until the following day. Just as previously, he needed to transfer funds from another account in order to cover the check. He again pulled up the Morgan Stanley bank account statement on a CarMax computer to show that he had enough funds to cover both the down payment on the Mercedes Benz and the down payment on the BMW. He completed another "held check" form, this one with respect to the check given in connection with the purchase of the BMW. Defendant took possession of the BMW on July 7, 2009.
Both the $15,000 check and the $5,000 check were later rejected for processing due to insufficient funds. On August 5, 2009, a CarMax representative reported the matter to the Buena Park Police 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.
Defendant appeared shocked when the police showed up. He told them that he was unemployed, had no money, and had been living 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 wire 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 $15,000 in return—$12,000 in principal and $3,000 in interest. Defendant wrote a $15,000 check, postdated to April 1, 2009, and told Eckert the money would be available by April 1, 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 1, 2009, the date defendant agreed the funds would be available.
When defendant gave Eckert the replacement checks, he did not say that they weren'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 learned from the bank that there were insufficient funds in the 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 with committing grand theft auto on July 3, 2009, in violation of Penal Code section 487, subd. (d)(1) (count one), fraudulently 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 violation of Penal Code section 487, subd. (d)(1) (count three), fraudulently obtaining property by false pretenses on July 7, 2009, in violation of Penal Code section 532, subdivision (a) (count four), receiving stolen property in violation of Penal Code section 496d, subdivision (a) with respect to a 2007 Mercedes Benz GL450 (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 1, 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).
The jury found defendant guilty as charged on counts one, two, three, four, seven and eight, and not guilty as to alternative 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 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 of appeal.
II
DISCUSSION
A. Evidence of NSF Check to Landlady:
(1) Background
On 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, returning defendant's check for insufficient funds. Saucedo contacted defendant immediately and informed him that the check had bounced.
Before trial, defendant moved to exclude evidence of unpaid checks to his landlady and opposed the People's motion to admit such evidence. Defendant argued that the evidence of the Saucedo NSF check violated the proscription of Evidence Code section 1101, subdivision (a) against the use of character evidence to prove conduct and that the evidence should be excluded under Evidence Code section 352 because its probative value was outweighed by its prejudicial impact.
In ruling on defendant's 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 $12,000 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 Eckert checks. It further 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.
The court gave the jury two limiting instructions. It gave CALCRIM No. 303, which provides: "During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other."
The court also used CALCRIM No. 375 and instructed the jury: "The People presented evidence that the defendant committed the offense of issuing a check with insufficient funds that was not charged in this case. [¶] . . . [¶] 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: [¶] 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 cover the checks that are the basis of the crimes charged in Counts seven and eight. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime."
(2) Argument and Analysis
On appeal, defendant says the court erred in admitting evidence of the Saucedo NSF check. He contends that the probative value of the evidence with respect to counts seven and eight was outweighed by the prejudicial impact with respect to counts one and three. He asserts that the court committed prejudicial error that denied him his rights to a fair 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 specified occasion.' Subdivision (b) of that section, however, provides that such evidence is admissible when relevant to prove some fact in issue, such as . . . knowledge . . . ." (People v. Lindberg (2008) 45 Cal.4th 1, 22.)
"'The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to 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 create 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.4th at pp. 22-23.) "The decision whether to admit other crimes evidence rests within the discretion of the trial court. [Citation.]" (Id. at p. 23.)
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. Inasmuch 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 first two prongs of the test discussed in People v. Lindberg, supra, 45 Cal.4th 1, we turn to the third prong—"'the existence of any rule or policy requiring exclusion of the evidence.'" (Id. at p. 22.)
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 the jury." (Evid. Code, § 352.) Defendant claims the danger of undue prejudice is clear. Along those 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.'" (Id. at p. 1321.)
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 at pp. 25-26.) Here, the court instructed the jury that it was not permitted 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 seven 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 followed these instructions. [Citation.]" (People v. Lindberg, supra, 45 Cal.4th at p. 26.)
Defendant disagrees. He says: "The trial court erred 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. Inevitably - even 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 nonsufficient fund checks, that if he did it once to his landlord, and again to Eckert, he must certainly have done it again on counts 1 and 3 in regard to the CARMAX purchases, and that he was hence guilty as well on those counts."
However, as the People point out, defendant was not charged with writing NSF checks in connection with the procurement of the two cars from CarMax. Rather, in counts one and three, he was charged with grand theft auto. Indeed, when he obtained the cars from CarMax, defendant specifically disclosed that he did not have the funds in the checking accounts to cover the deposit checks. The grand 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 payments 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 [harmless error standard].) At the time defendant obtained the two cars, he falsely represented that he had a monthly income of $78,753, when he was unemployed, and he gave a false address, apparently 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. at p. 26.)
B. Splitting of Charges with Respect to Eckert NSF Checks:
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 Eckert 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 out, the two checks were part and parcel of a single transaction. Defendant acknowledges that the issue here is one of multiple convictions, not multiple punishments.
Defendant cites, People v. Rouser (1997) 59 Cal.App.4th 1065, which states the general rule: "A single crime cannot be fragmented into more than one offense. [Citations.]" (Id. at p. 1073.) 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,] § 954.)" (People v. Benavides (2005) 35 Cal.4th 69, 97.)
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 defraud, makes or draws or utters or delivers any check, . . . upon any bank or depositary . . . , for the payment of money, knowing at the time of that making, drawing, uttering, or delivering that the maker or drawer . . . has not sufficient funds in, or credit with the bank or depositary, . . . for the payment of that check, . . . and all other checks, . . . upon funds 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 prison. [¶] (b) 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 ($450), the offense is punishable only by imprisonment in the county jail for not more than one year . . . ."
The California Supreme Court addressed this statute in In re Dick (1966) 64 Cal.2d 272. As that court observed: "Prior to 1955 the issuance of any one check or each subsequent check, regardless of the amounts, constituted violations of section 476a and each violation was a felony. In that year the section was amended by the addition of subdivision (b) to the former language . . . . [Citation.]" (In re Dick, supra, 64 Cal.2d at p. 273.) Subdivision (b) "purports to qualify subdivision (a) only in the case where the total amount of the checks 'that the defendant is charged with and convicted of making . . . does not exceed [four hundred] fifty dollars ($[450]).' Where the total exceeds $[450] subdivision (b) does not purport to affect the established law and, . . . the writing of each and any check with insufficient funds prior to the amendment constituted a felony." (In re Dick, supra, 64 Cal.2d at p. 276.)
In short, the California Supreme Court concluded with respect to Penal Code section 476a, "when the felon continues to issue fraudulent 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 issuance of further fraudulent 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 Dick, supra, 64 Cal.2d at p. 276.) As applied to this case, when defendant issued the first check in an amount exceeding $450, he committed a felony, and when he thereafter issued the second check, also in an amount exceeding $450, 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.2d 272 at all.
Rather, defendant cites cases having to do with different crimes, and seeks to have us apply those cases by analogy. He cites: In re Johnson (1966) 65 Cal.2d 393 [under Health & Saf. Code, § 11501, defendant 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 [defendant cannot be repeatedly prosecuted for separate statements made in one purportedly libelous article]; People v. Rouser, supra, 59 Cal.App.4th 1065 [possession of two different controlled substances while in prison is construed as one offense under Pen. Code, § 4573.6]; People v. Bowie (1977) 72 Cal.App.3d 143 [possession of 11 blank checks with intent to defraud is only one crime under Pen. Code, § 475]; and People v. Schroeder (1968) 264 Cal.App.2d 217 [possession of various quantities 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 how 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 (1961) 55 Cal.2d 514. "In Bailey, the 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 grand theft from the same person if the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan.' [Citation.]" (People v. Mitchell (2008) 164 Cal.App.4th 442, 456.)
However, the Bailey doctrine is not applied in all contexts. As the court in People v. Mitchell, supra, 164, Cal.App.4th 442 observed, "the Bailey doctrine should [not] be extended to forgery. That doctrine was developed for the crime of theft . . . . The essential act in all types of theft is taking. If a certain amount of money or property has been taken pursuant to one plan, it is most reasonable to consider the whole plan rather than to differentiate each component part. [Citation.] The real essence of the crime of forgery, however, is not concerned 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 defraud and without authority, or of falsely making a document, or of uttering the document with intent to defraud. Theft pursuant to a plan can be viewed as a large total taking accomplished by smaller takings. It is difficult to apply an analogous concept to forgery. The designation of a series of forgeries as one forgery would be a confusing fiction.' [Citation.]" (Id. at p. 457.)
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 concerned, 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, was 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 negotiable instrument, had the potential to harm different persons or entities. Consequently, we find the 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 Bailey doctrine is concerned.
We decline to apply the Bailey doctrine in this case and instead apply the rules enunciated in In re Dick, supra, 64 Cal.2d 272. 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.
MOORE, ACTING P. J. WE CONCUR: ARONSON, J. IKOLA, J.