People v. Clotfelter

• Decision Date: 04 February 2021
• Docket Number: A155134
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. BRUCE LEE CLOTFELTER, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. BRUCE LEE CLOTFELTER, Defendant and Appellant.

A155134

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

February 4, 2021

ORDER MODIFYING OPINION AND DENYING REHEARING

BY THE COURT:

It is ordered that the opinion filed herein on February 4, 2021, be modified as follows:

On page 33, insert the following after the first full paragraph under the heading "Substantial Evidence":

"In his petition for rehearing, defendant attacks this reasoning as 'superficial' because it 'fails to meaningfully address appellant's sufficiency of the evidence claim (the most important issue in this case), and because it is inconsistent with (and does not even mention) our Supreme Court's controlling decision in People v. Kunkin (1973) 9 Cal.3d 245, 250-251.'

"Kunkin entered this case in an unusual fashion. In response to defendant's contention that his theft by larceny convictions were not supported by substantial evidence, the Attorney General conceded that theft by larceny was an incorrect characterization of what defendant did, which should have been treated as theft by false pretense. The Attorney General then proceeded to argue that we should reject defendant's claim because the record did have ample substantial evidence that defendant had committed multiple counts of theft by false pretense. It was in response to this argument that Kunkin (along with Pennington, Chiarella, and McCormick) was first cited, by defendant in his reply brief.

"Kunkin was convicted of receiving stolen property. The question on appeal was whether there was substantial evidence to prove that the property (1) was stolen, and (2) Kunkin knew that it was stolen. The Supreme Court answered the first question in the affirmative, the second in the negative. Before commencing its analysis, the court quoted the language of section 496 and stated:

" 'This broad language is intended to include property which has been obtained not only by theft by larceny (i.e., stealing) but also by such other forms of theft as embezzlement. We note at the outset, however, that the jury in this case was instructed on the elements of theft by larceny only. Thus even though section 496 applies by its terms to the receipt of property obtained by embezzlement, the convictions below could only have been predicated on the jury's finding that the [property] was stolen, not embezzled. We, of course, cannot look to legal theories not before the jury in seeking to reconcile a jury verdict with the substantial evidence rule. [Citation.] The immediate question, accordingly, is whether there is substantial evidence that Reznick committed a theft by larceny apart from the suggestion that, because of his employment, he might have committed theft by embezzlement.' (People v. Kunkin, supra, 9 Cal.3d, at pp. 250-251, italics added, fns. omitted.) There are compelling reasons why the italicized language should not be treated, in defendant's characterization, as 'controlling.' "First, unlike here, the Attorney General in Kunkin was not attempting to have the conviction upheld on a new theory of the crime. Thus, the italicized. language was simply the statement of a truism that might well qualify as dictum. Second, and again unlike this case, there was no claim in Kunkin that the jury had been misinstructed, still prejudicially so. Thus, we are not 'seeking to reconcile a jury verdict with the substantial evidence' because we have already determined that the theft convictions must be reversed for instructional error. We simply do not reach the substantial evidence issue. Third, Kunkin does not, as defendant apparently believes, actually hold that a reviewing court must always address a substantial evidence claim. Defendant does not cite, and our research has not found, a single reported instance where Kunkin has been applied to preclude retrial by a properly instructed jury."

This modification does not effect a change in the judgment. The Petition for Rehearing is denied.

Date: __________

/s/_________

Kline, P.J.

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.

(Napa County Super. Ct. No. CR182578)

Defendant was adjudicated a Sexually Violent Predator (SVP). That status burdened defendant with numerous statutory disabilities that he wished to evade by changing his name. His attempt to do so came to the attention of state and federal authorities, and resulted in criminal charges. A jury convicted him of one count of perjury (Pen. Code, § 118¹); two counts of identity theft—technically the unauthorized use of personal identifying information of another person—(§ 530, subd. (a)); two counts of document forgery with intent to defraud (§ 470, subd. (d)); and seven counts of grand theft (§ 487, subd. (a)). The jury also found true allegations that defendant had three prior sex-offense "strike" convictions. The trial court denied defendant's motion to strike one or more of the previous conviction findingspursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), and sentenced him to state prison for an aggregate term of 300 years to life.

On this timely appeal, defendant contends: (1) in accordance with In re Williamson (1954) 43 Cal.2d 651, his perjury and grand theft convictions must be invalidated because he could only be convicted under more specific misdemeanor statutes; (2) his grand theft convictions are not supported by substantial evidence; (3) only one grand theft conviction was proper because there was only a single continuous offense; (4) there were two instances of prejudicial instructional error; (5) the trial court abused its discretion in denying his Romero motion; (6) section 654 precludes separate sentences for forgery and identity theft; and (7) the aggregate sentence constitutes cruel and unusual punishment under both the federal and the state constitutions.

With respect to the seven theft convictions, we conclude that defendant could be convicted of no more than four counts, but all the convictions must be reversed because the jury was not instructed on theft by false pretenses, the particular form of the crime advanced at trial. The convictions for perjury, identity theft, and forgery will be affirmed, but two of the sentences must be stayed pursuant to section 654. Because we remand for possible retrial of the theft charges, and resentencing, we do not address the cruel and unusual punishment claim.

BACKGROUND

The evidence heard by the jury is virtually without dispute, making it necessary only to summarize it here, viewed most favorably in support of the verdicts (People v. Nelson (2011) 51 Cal.4th 198, 210), as follows:

In 1989 defendant was convicted of three counts of committing lewd or lascivious acts upon a child under the age of 14 (§ 288, subd. (a)). In 1997, hewas adjudicated an SVP, and civilly committed to a state hospital for treatment. He was released in June 2007 and settled in Napa County. As required by law, he registered as a sex offender with local law enforcement.

Defendant also applied for SSI benefits from the Social Security Administration (SSA), which was approved under his own name. He began receiving monthly payments in February 2008 (but backdated to November of 2007). Defendant was repeatedly told that he must report all sources of income; that benefits could terminate if his income rose above $2,000 a month; and that there would be periodic "redetermination" interviews to confirm his eligibility for continued benefits.

About this time, defendant decided to change his name. In January 2008, he petitioned the Napa Superior Court to change his name to "Andrew Bruce Vail." That petition was denied. In January of 2009, he filed another petition, this time asking to change his legal name to the one he used for writing, "Dalton Bruce Vail." This petition was also denied.

Desperate to escape his criminal past, defendant then resolved to simply rename himself: "I looked on the Internet and I just simply searched . . . ways to change your name without the court. And there were a number of publications . . . that you could do it by customary usage. That you simply chose another name and begin using that name and then you can claim that that is your name."

Defendant already had a Consular Report of Birth Abroad (CRBA), the equivalent of a birth certificate for an American citizen born in another county (in defendant's case, Mexico), issued by the U.S. Department of State. Defendant wrote to that agency asking how to amend his CRBA to his new, self-bestowed name. He was told he had to prove he had been using the new name for at least five years.

Because defendant was told he had to have a passport before it could be amended with a different name, defendant applied for a passport in his own name. He received it in March 2010.

In June of that year, defendant submitted an application to the SSA to have his benefits paid under the name of Dalton Bruce Vail. To an SSA employee defendant "submitted a court-ordered name change document" (defendant called it a "document that I had created that was entitled Affidavit for Common Law Name Change"). Based on this bogus document, SSA accepted defendant's application.

The same thing occurred several months later, allowing defendant to obtain an amended CRBA in the name of Dalton B. Vail from the Department of State.

Among the "doctored" documents defendant admitted submitting was a "contribution statement" from the Grace Church he attended in Napa. This document, which was dated January 14, 2005, purported to show that in 2004 (while he was actually in Atascadero State Hospital) Dalton Vail made specified donations to the church.

Another document created by defe...