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Filed 9/13/21 P. v. Osbourn CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID OSBOURN,

Defendant and Appellant.

 A161126

 (Mendocino County

 Super. Ct. No. 

 SCUK-CRCR-202033913)

Defendant David Osbourn appeals from a judgment entered after he 

pled no contest to one count of possession of child pornography. Defendant’s

court-appointed counsel has filed a brief asking this court for an independent 

review of the record under People v. Wende (1979) 25 Cal.3d 436. Defendant 

was informed of his right to file supplemental briefing and has not filed such 

a brief. We have reviewed counsel’s brief and independently reviewed the 

record, and we find no errors or other issues requiring further briefing. 

Accordingly, we affirm.

On January 2, 2020, defendant was charged by a two-count felony 

complaint with possession of matter depicting sexual conduct of a child under 

18 years of age (Pen. Code,

1 § 311.11, subd. (a)), and sale or distribution of 

1 All further references are to the Penal Code unless otherwise stated.
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obscene matter depicting a person under the age of 18 years engaging in 

sexual conduct (§ 311.1, subd. (a)). 

At a preliminary hearing, Ukiah police detective Ronald Donohue 

testified that the investigation into the charges against defendant began in 

2018 when the police department received a CyberTipLine Report (CTR) from 

the National Center for Missing and Exploited Children about child 

pornography images uploaded to a Twitter account. The CTR contained a 

name, phone number, and six IP addresses. An investigation ensued that 

eventually linked the IP addresses to places where defendant had been (his 

father’s residence and a Motel 6). Subsequently, when a Motel 6 manager 

told Donahue that defendant was staying at the motel, Donahue obtained a 

warrant to search defendant, the motel room, the vehicle defendant had 

parked at Motel 6, as well as the residence in the address listed in 

defendant’s DMV record and all vehicles associated with him. Defendant was 

present on the day of the search at Motel 6 (May 9, 2018) but not arrested. 

The search of defendant, his room at Motel 6 and the minivan 

defendant had been driving resulted in the seizure of, among other things, 

two cell phones and a digital camera. Subsequent manual searches and data 

extractions from the phones disclosed multiple images of child pornography, 

child erotica, and adult pornography. One of the images was a video on the 

telephone of a man about age 60 having sexual intercourse with a girl who 

was about 10 years old. Another was a prepubescent boy 6 to 10 years old

penetrating the vagina of a nude teenage female. On one seized cell phone 

there were web history searches, social media apps and chat apps evidencing

that defendant searched for and solicited child pornography and was looking 

for other people searching for the same type of material.
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At later points in the investigation, and after defendant had received 

his Miranda rights and was not under arrest, defendant told detectives who 

interviewed him that he viewed child pornography, that he had done so more 

than once, that he searched for it online, and that he asked others to 

masturbate to images after sending them to other people. He admitted 

trading child pornography five times. 

At the conclusion of the preliminary hearing, defendant was held to 

answer on both counts alleged in the complaint. Defendant was arraigned on 

the two-count felony information on February 10, 2020. The case was set for 

trial on a no-time-waiver basis. 

At a pretrial conference on March 11, and again on March 18 at a bail 

motion (which successfully resulted in defendant’s release to home 

confinement with a promise to appear), the district attorney would not make 

an offer to resolve the case. 

On April 2, with defendant’s agreement, the court vacated the jury trial 

date and reset the trial for June 1, with motions in limine on May 28 and a 

pretrial conference on May 7. At the May 7 pretrial conference, the trial was 

rescheduled for July 6, with the concurrence of counsel and in light of the 

public health emergency. 

The district attorney continued to refuse to make any offers to resolve 

the case. Eventually the parties reached a disposition. On July 2, the 

rescheduled date for hearing on motions in limine, defendant entered a 

change of plea. Defendant pled no contest to count 2, a violation of section 

311.11, subdivision (a), with a maximum term of confinement of three years 

in state prison. The district attorney agreed to dismiss count 1 (§ 311.1, 

subd. (a)), with a Harvey2 waiver. The plea was open, with no agreement as 

2 People v. Harvey (1979) 25 Cal.3d 754.
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to sentence. The trial court made clear the range of sentencing options, from 

probation to a state prison commitment, and the sentencing consequences. 

Defendant completed a Judicial Council plea form, with explanations and 

waiver of rights. The form was signed and initialed by defendant, and signed

by defense counsel, the deputy district attorney and the trial judge. In 

addition to the change of plea form, the court engaged in extensive colloquy 

with defendant. With the concurrence of counsel, the court found that the 

preliminary hearing transcript provided a factual basis for the no contest 

plea. The court found defendant knowingly, voluntarily and intelligently

waived his rights and entered a plea of no contest. 

The court appointed Dr. Kevin Kelly, a psychologist, to examine 

defendant and prepare a presentence report as to defendant’s mental 

condition pursuant to section 288.1. Dr. Kelly’s detailed report, written 

without benefit of the probation office’s presentence report which had not yet 

been prepared, concluded that defendant “fits within DSM-V criteria for 

Pedophilic Disorder.” Dr. Kelly opined that defendant “knows his behavior is 

wrong and illegal, but he shows limited insight and remorse regarding the 

negative impact on children.” Dr. Kelly recommended at least one year and 

perhaps five years of treatment, and assessed defendant as having a “low risk 

of re-offense during the period of treatment” if he were treated within the 

community on probation. 

The probation officer prepared a comprehensive presentence report and 

recommended that defendant be sentenced to state prison for the middle term 

of two years. 

At the sentencing hearing on August 21, defense counsel argued at 

length that defendant should receive probation. Defendant was 54 years old 

at the time of sentencing, had no prior criminal record, and had a number of 
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physical conditions. He had no previous experience in a sexual relationship 

with another person. In defense counsel’s view, defendant, contrary to the 

probation officer’s observations, did make statements in the probation report 

that were tantamount to expressing remorse and wrongdoing, perhaps 

masked by the fact that defendant had a “very lethargic demeanor,” and was 

not the “most demonstrative or the most emotional or the most verbal of men 

and that may have had an impact on probation’s recommendation as well.” 

Defense counsel informed the court that defendant’s life revolved around 

taking care of his father and providing transportation to him, and that 

defendant had orthopedic problems and cardiac problems, with a surgical 

procedure for atrial fibrillation scheduled for September 16. Defense counsel 

also expressed concern that the nature of the offense would make defendant 

vulnerable in the prison population and that because of his physical 

conditions and age he would be at risk for COVID-19 in custody.3

The prosecutor argued that the general objectives of sentencing under 

California Rules of Court, rule 4.410 militated in favor of a state prison term, 

and that, balancing the aggravating and mitigating factors, the middle term

of two years was appropriate. The prosecutor discussed the underlying facts 

of the case in detail, a subject he noted defense counsel had avoided.

The trial court gave defense counsel an opportunity to respond, and he 

did, again at length. Defense counsel focused on defendant’s admissions in 

the probation report as actual statements of remorse. He stressed the 

relatively limited period of time that defendant was involved with child 

pornography (2017 to 2018), and he disagreed with the probation office’s 

conclusion that the crime was sophisticated and on public property. 

3 Defense counsel referred to a sentencing memorandum that he had 

prepared, but it is not in the record. 
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Upon receiving documents at the sentencing hearing that defendant 

was scheduled for surgery, the court continued the sentencing hearing until 

after the surgery. But before the hearing concluded, the court stated, “I think 

this case really teeter totters on a grant of probation and the low or midterm 

prison sentence. And Dr. Kelly’s report doesn’t provide a lot of answers, 

certainly [the prosecutor] read some of the relevant information, but the 

defendant[’]s lack of insight into how this type of crime really does victimize 

other people, children in particular concerns me because it leaves me lacking 

the confidence that you can really control your behavior in the future if you 

don’t understand the magnitude of the harm that child pornography really 

imposes on young people.” 

At the continued sentencing hearing on October 2, the court clarified 

that it had read and considered the probation officer’s report filed on August 

21 in advance of the first sentencing hearing. The court permitted defense 

counsel to make any further argument. Defense counsel accepted the 

invitation, and succinctly noted that defendant had experienced “intense 

isolation” throughout his life, that his job as a night stocker at Wal-Mart 

(from which he retired) did not require much “interpersonal contact or

interpersonal intellectual stimulation,” and that he had never had a sexual 

relationship. Defense counsel characterized Dr. Kelly’s report as “positive.” 

He reemphasized defendant’s vulnerability in prison because of his medical 

condition, age, impairment, and the nature of the offense. And he noted 

defendant’s care and transportation of his father. Defense counsel also 

referred to two letters to the court—one from defendant and one from his 

sister—and reiterated that defendant was remorseful and would, per Dr. 

Kelly, respond to treatment and have a low risk to reoffend. 
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The prosecutor responded that defendant’s electronic devices had 42 

images of juveniles as young as two years old engaging in sexual acts and 

that defendant was “actively involved in trading those images.” The 

prosecutor also contended that defendant “took advantage of his employment 

at [a local skating rink] to target young girls in the community and take 

photographs of them without their consent and send them to others that are 

like minded and exchanged rather graphic responses to—from these other 

folks that he was trading these images to” and that they would masturbate 

on the photographs and then send them back to defendant.4 The prosecutor 

disputed that the defendant’s belated letter to the court stating “I am sorry 

for what happened to the kids and being part of the process” was evidence of 

insight or that he understood the impact of his conduct. The prosecution 

argued that “probation got it right” and asked the court to sentence 

defendant to state prison. 

Defense counsel responded that the point of treatment was to gain 

insight, and that it was “not a criminal offense to be aroused by minors. The 

offense is possession of child pornography, for which he certainly is 

responsible . . . .” 

After this extended argument on the second day of the sentencing 

hearing, the court gave a lengthy exposition on the reasons for the sentence it

was about to impose. The court acknowledged defendant’s lack of a prior 

criminal record, age, and health concerns. But the court found the 

4 The presentence investigation report prepared by the probation officer 

summarizes a Ukiah Police Department report of the investigation which 

goes into detail about the social media contacts defendant had with local 

juveniles he met when he worked for a local skating rink, his sexual 

messages to at least one of them, and nonpornographic images of two of them. 

One of the photographs in the CTR was a photograph of a phone with semen 

on it and a local girl depicted on the screen of the phone. 
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circumstances of the offense “extremely troubling” and did not consider Dr. 

Kelly’s report “actually all that positive” for defendant. Even the belated 

letter of apology from defendant did not “satisfy [the court’s] concerns about 

the lack of insight.” 

The trial court sentenced defendant to the low term of 16 months in 

state prison, “because of his lack of record.” That sentence would “carry out 

the objectives of sentencing” to “deter future conduct” and “deterrence in the 

community.” In so doing, the court stated it was balancing the circumstances 

in aggravation and in mitigation. Defendant was given credit for 72 actual 

custody credit and 72 credits pursuant to section 4019, for a total of 144 days 

credit for time served. The court did not impose the penal fine under section 

311.11 recommended by the probation office. The court imposed a $300 

restitution fine (§ 1202.4), a $40 security fee (§ 1465.8, subd. (a)(1)), and a 

$30 conviction assessment (Gov. Code, § 70373) (collectively, fines and fees). 

After judgment was entered and while this appeal was pending, the 

trial court issued a written order granting defendant’s request to strike/stay

the fines and fees, “[g]iven the court’s findings and related statements on the 

record at the time of sentencing regarding this defendant’s ability to pay.” 

The court issued an amended abstract of judgment reflecting this order. 

We have reviewed the record on appeal for any arguable issues. 

Defendant was sentenced after a no contest plea and did not obtain a 

certificate of probable cause. Any issues as to the validity of his plea are not 

before us. (§ 1237.5.) Before entering his no contest plea, defendant was 

advised of his rights, and there is no indication he did not understand his 

rights, including the rights he was waiving. The court found defendant had 

knowingly, voluntarily, and intelligently waived his rights and his plea was

voluntary. There was a factual basis for the plea.
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The sentence imposed is authorized by law. Custody credits appear to 

have been calculated correctly.

Based on our review of the record, defendant was represented by 

competent counsel who acted to protect his rights and interests.

We conclude there are no arguable issues within the meaning of People 

v. Wende, supra, 25 Cal.3d 436. 

The judgment is affirmed.
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_________________________

Miller, J.

WE CONCUR:

_________________________

Richman, Acting P.J.

_________________________

Stewart, J.

A161126, People v. Osbourn