of california just don't ordinarily receive high court attention in this case we're looking at a bad checks case matter which seldom comes before the high court  it was last reviewed by the california supreme court in one thousand nine hundred sixty six it has that is bad checks charges have in common with all false document cases under the common law throughout the united states in state and federal jurisdiction a single gravel meant a common element which is the intent to defraud they are different from theft cases that distinct prohibited acts must be alleged and separate counts if there is a aggregation at the charging stage separate criminal acts particularly false documents then the defendant can object to the charging document as duplicitous thus there is a common law or rule against charging aggregation this is the background this is  the common law bed out of which this case arises this is not a case in which there was a well established exception indeed there is no it afshan none of the stage is permitted under california law it hasn't happened and tell this case and it's more than suspicious that tactically in this situation what the state wishes is one felony conviction they don't they say well we're you know the defendants jumping out of the pirate frying pan into the fire he's going to be convicted of multiple felony offenses if that were true if that were a realistic threat undoubtedly that's how it would have been charged but that's not a realistic threat the realistic concern for the prosecution and for the defendant here was that he saw for one  had the volume's up here it's i i don't want to make this sound too simplistic but i made this argument over and over again and it hasn't it hasn't been recognized but there is  court permitted aggregation at sentencing that's ok that's in the federal sentencing guidelines part three d that's after you've been convicted you know the case came up while we were briefing this this is all the more there's a different goal and this case there's a goal of sentencing this man imprisoned for life on a single felony count all of a sudden we have charging aggravation that's never and it's not authorized by the statute  the state court and they are and they're going to i'm sure take refuge under the aid d p a that this is just a matter of state court concern and the federal court should stay out of it that what was said in the about that era there was a case called bailey which was decided by the supreme court in which permitted aggregation of of cases in other words you can steal a number of items from one individual one victim and under bailey those can be aggravated i'm sorry aggregate it whereas in the document cases those diskin wish bailey they say and i've cited a number of them that said that does not apply or you have false documents each of them is a separate offense this aggregation sentencing is a red herring it is not a charging provision it dick was answering a question that was left open by prior cases how do we aggregate once we have somebody convicted of all these offenses how do we take the sentence and and dick set for number one the number and this is what and we seem to get the second base here without touching first number one is you've got to convict the guy now dick was acquitted on six counts you cannot read asserted repeatedly that there is some inherent prohibition against aggregating i certain number of violations regular to fair notice is it whether he's been given fair notice that he's going to charged with this and tried on it isn't that the question of the constitutional question as i believe but this seems to be no constitutional issue or at least be the the district court has not acknowledged that the statute provided that it was a generic felony for passing a bad check it was an exception then built into the statute which provided that in the event that the check was under fifty dollars it would not constitute a felony certainly the misdemeanor provision was an add on to a statute which contemplated that the act underlying the statute and perhaps at some point common law was the passing of the bad check and that exception was increased i'm sorry was increased from thirty dollars to two hundred dollars in one thousand nine hundred two that's what we're dealing with now in this particular circumstance  as observed by both the appellate court and federal district court part of the argument is moot in that how among the twenty some odd checks that was charged to exceeded the amount required by statute and one of the two was one of the checks which was submitted to the jury testified upon and there was there was evidence as to the extent there's the check the verification of the individual is the sam's club check for this opposed to any others recall that the defense was an all or nothing defense it was somebody stole the checks i never received the checks i got i would want to put the checks out in the mailbox i've never seen any of th charging violation that mr bonno got correct when oh ok argued and maybe what he's arguing is that he had a state created liberty interest in having these  checks separately charged and again i was going back to that the history of the statute where in the offense was a felony threshold then increased to two hundred dollars threshold in any instance there were among these checks two checks which exceeded two hundred dollars so once again i'm not in frankly entirely argument about well the one check was more than a felony amount that we don't need aggregation yes i'm prepared to do that first of all there was no defense evidence at all the defendant didn't testify so this is not a question of accepting or rejecting defense evidence  defense just put a prosecution on their burden of proof that's all now as far as it being moved because of one check that's not the case the sam's club check that's where there was confusion at the handwriting expert that's what he's talking about he's right he's talking about three checks which at one of which the handwriting expert was real sure about but the but the other was he was unsure about he was not sure about the sam's club check not enough to say beyond the reasonable doubt now maybe some jurors would have said well it least that's checked we have a clerk so i'm going to buy that one jurors would say no i need a handwriting expert i'm not going to convict unless this guy is clear other jurors are going to say well forget that all look at the whole panoply of checks myself and decide they're going to get use different routes to get to conviction on different checks and if they're permitted and if there's no requirement of unanimity then there is going to