People v. Clotfelter CA1/2 ( 2023 )

Filed 2/7/23 P. v. Clotfelter 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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,
A163460, A165951
v.
BRUCE LEE CLOTFELTER, (Napa County
Super. Ct. No. CR 182578)
Defendant and Appellant.
INTRODUCTION
This matter comes back to us after we reversed and remanded two
separate judgments of conviction against defendant Bruce Lee Clotfelter
arising out of two separate jury trials in Napa County. (People v. Clotfelter
(Feb. 4, 2021, A155134) [nonpub. opn.] 2021 WL 386536 (Clotfelter I); People
v. Clotfelter (2021) 65 Cal.App.5th 30 (Clotfelter II).) On appeal from the
remand proceedings in Clotfelter I, defendant now argues (in A163460;
Clotfelter III) that his aggregate sentence of 75 years to life in prison for
convictions of perjury, identity theft, and forgery was in error on three
grounds: his sentence constitutes cruel and unusual punishment; the trial
court erroneously believed it was required to impose consecutive sentences;
and the trial court failed to recalculate his custody credits. We conclude that
the matter must again be remanded for resentencing.
1
In a separate appeal (A165951) also arising from Clotfelter I, and which
we consolidated with A163460, Clotfelter appeals from an order denying his
post-conviction motion for resentencing (Clotfelter IV). Defendant’s court-
appointed counsel filed a brief asking this court for an independent review of
the record under People v. Wende (1979) 25 Cal.3d 436 (Wende), which applies
to direct criminal appeals. Since then, the Supreme Court has explained the
procedure that applies when appellate counsel finds no arguable issue on
appeal from postconviction matters in People v. Delgadillo (2022) 14 Cal.5th
216 (Delgadillo). Defendant was informed by appellate counsel and by this
court of his right to file supplemental briefing. In part IV of this opinion, we
dismiss appeal A165951 as abandoned under Delgadillo.
FACTUAL AND PROCEDURAL BACKGROUND
We rely primarily on our prior opinions in Clotfelter I, supra, 2021 WL
386536 and Clotfelter II, supra, 65 Cal.5th 30 for the factual and procedural
background.
Brief Overview
Long before Clotfelter I and II, Clotfelter was convicted in 1989 of three
counts of committing lewd or lascivious acts upon a child under the age of 14.
(§ 288, subd. (a).) He was sentenced to 10 years in state prison and was
eventually released in 1995. In 1996, defendant was convicted in federal
court of four counts of false impersonation of a military officer, after dressing
as a naval fighter pilot and visiting various schools. In 1997, he was
adjudicated a sexually violent predator (SVP) and committed to a state
hospital for treatment. While in the state hospital, he volunteered to be
surgically castrated, a procedure that took place in 2001. In June 2007,
defendant was unconditionally released from the state hospital, and subject
2
to lifetime registration as an SVP. Upon his release, defendant moved to
Napa County.
The facts leading to Clotfelter I and Clotfelter II begin nearly a decade
later, when, during a routine sex offender compliance check and search of
defendant’s residence in October 2016, Napa police found a Mexican passport
in the name of Bruce Clotfelter, and a U.S. passport in the name of Bruce
Vail. Pursuant to a warrant, Napa police seized defendant’s computer. The
computer contained altered documents defendant had submitted to the Social
Security Administration (SSA) and to the Department of State, as well as
invoices purportedly placing his residence in Napa at the same time he was
committed to a state hospital as an SVP. This evidence led defendant to be
charged in Clotfelter I with numerous felonies including perjury, identity
theft and multiple theft counts, he was convicted and sentenced to 300 years
in state prison.
Other evidence was seized that showed defendant had formed
relationships with three minor boys (two were brothers) and their respective
families. This evidence led defendant to be charged in a second case
(Clotfelter II) with several sexual offenses. A jury trial was conducted in
Clotfelter II, resulting in convictions on all counts and a sentence of 150 years
to life in state prison. We reversed two of the counts in Clotfelter II for
insufficient evidence and the entire judgment for ineffective assistance of
counsel. (Clotfelter II, supra, 65 Cal.App.5th at p. 37.) We discuss Clotfelter I
and Clotfelter II in more detail below.
Clotfelter I
In June 2007, defendant settled in Napa County, where he registered
as a sex offender with local law enforcement. (Clotfelter I, supra, 2021 WL
3
386536 at *1.) Defendant also applied for Social Security benefits, which
were approved under his own name. (Ibid.)
About this time, defendant decided to change his name. (Clotfelter I,
supra, 2021 WL 386536 at *2.) In January 2008, he petitioned the Napa
Superior Court to change his name to “Andrew Bruce Vail.” (Ibid.) That
petition was denied. (Ibid.) 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.” (Ibid.) This petition was also denied. (Ibid.)
Defendant then resolved to 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.’ ” (Clotfelter I, supra,
2021 WL 386536 at *2.)
Defendant already had a Consular Report of Birth Abroad (CRBA), the
equivalent of a birth certificate for an American citizen born in another
country (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
name. (Clotfelter I, supra, 2021 WL 386536 at *2.) He was told he had to
prove he had been using the new name for at least five years. (Ibid.)
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. (Clotfelter I, supra, 2021 WL 386536 at
*2.)
In June of that year, defendant submitted an application to the SSA to
have his benefits paid under the name of Dalton Bruce Vail. (Clotfelter I,
supra, 2021 WL 386536 at *2.) To an SSA employee defendant “ ‘submitted a
4
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. (Ibid.)
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. (Clotfelter I, supra, 2021 WL 386536 at *2.)
Among the documents defendant admitted submitting was a
“ ‘contribution statement’ ” from the Grace Church he attended in Napa.
(Clotfelter I, supra, 2021 WL 386536 at *2.) 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. (Ibid.)
Another document created by defendant that was submitted with the
amended CRBA application was a UPS invoice dated May 15, 2005,
purporting to record that Dalton Vail of “ ‘Vail Enterprises’ ” paid $11.05 to
ship an item from himself to himself in Napa from Orange County. (Clotfelter
I, supra, 2021 WL 386536 at *2.)
Defendant used the amended CRBA to apply for his California Driver’s
License to show the name Dalton Vail instead of Bruce Clotfelter. Months
later, using the name Dalton Vail, defendant applied for a different type of
operator’s license; on the application defendant answered “ ‘No’ ” to the
question: “ ‘[H]ave you applied for a driver’s license or identification card in
California or another state/county using a different name or number within
the past 10 years?’ ” (Clotfelter I, supra, 2021 WL 386536 at *2.)
Defendant took the stand at his trial in Clotfelter I and began by
admitting his five felony convictions, and the fact that he was an SVP who
5
spent 10 years in state hospitals. He admitted creating and altering
documents to escape his criminal history. But he testified he did not change
his name to “ ‘hide from the police’ ” or avoid the sex offender registration
requirements. The name change was not intended to “ ‘confuse’ ” anyone.
(Clotfelter I, supra, 2021 WL 386536 at *3.)
A jury convicted defendant of one count of perjury (Pen. Code, § 1181
[count 1]); two counts of identity theft—technically the unauthorized use of
personal identifying information of another person—(§ 530, subd. (a) [counts
3 & 4]); two counts of document forgery with intent to defraud (§ 470, subd.
(d) [counts 5 & 6 ]); and seven counts of grand theft (§ 487, subd. (a) [counts
7-13]).2 (Clotfelter I, supra, 2021 WL 386536 at *1.) The jury also found true
allegations that defendant had three prior sex-offense “strike” convictions.
(Ibid.) The trial court denied defendant’s motion to strike one or more of the
previous conviction findings pursuant 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. (Ibid.)
In our unpublished opinion in Clotfelter I, we reversed the seven grand
theft convictions (counts 7-13); affirmed the perjury conviction (count 1), the
two forgery convictions (counts 5-6), and the two identity theft convictions
(counts 3-4); directed the trial court to stay the sentences on the two identity
theft convictions pursuant to section 654; and remanded the matter for
1 All further undesignated statutory references are to the Penal Code.
2 The theft charges consisted of seven separate counts of unlawfully
taking “ ‘more than $950’ ” which was “ ‘the property of the Social Security
Administration,’ ” one count for each year from 2010 through 2016, relating
to Social Security payments he received. (Clotfelter I, supra, 2021 WL 386536at *3.) For each of these counts, defendant had been sentenced to a Three
Strikes sentence of 25 years to life, each to be served consecutively. (Ibid.)
6
resentencing and possible retrial on no more than four of the theft charges.3
(Clotfelter I, supra, 2021 WL 386536 at *21-22.) We determined at that time
that the trial court did not abuse its discretion in denying defendant’s
Romero motion. (Id. at *20.) Finally, we concluded defendant’s cruel and
unusual punishment claim was premature in light of the fact that his final
aggregate sentence would be determined upon remand. (Id. at *22.)
The district attorney elected not to retry defendant on any of the theft
charges.
Clotfelter II
In September 2018, a jury convicted defendant of two counts of
annoying or molesting a child under the age of 18 (§ 647.6, subd. (c)(2)
[counts 1 & 2]), two counts of contacting or communicating with a 14 or 15-
year-old child with the intent to commit a sexual offense (§§ 288.3, subd. (a),
288, subd. (c)(1) [counts 3 & 4]), and two counts of contacting or
communicating with a child under the age of 14 with the intent to commit a
sexual offense (§§ 288.3, subd. (a), 288, subd. (a) [counts 5 & 6]). (Clotfelter
II, supra, 65 Cal.App.5th at pp. 37-38.)
On appeal, defendant claimed there was insufficient evidence to
support his conviction on the counts of annoying or molesting a child under
the age if 18 (counts 1 & 2). (Clotfelter II, supra, 65 Cal.App.5th at p. 38.) He
further argued the entire judgment required reversal due to prejudicial
ineffective assistance of counsel that deprived him of a fair trial. (Ibid.) This
included defense counsel’s consistent failure to object to inadmissible expert
testimony that defendant had the requisite mental states to commit the
3 We grant defendant’s motion to take judicial notice of the appellate
record in Clotfelter I. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).) On our
own motion, we take judicial notice of the appellate record in Clotfelter II.
7
charged crimes and in fact was guilty; failure to object to the admissibility of
expert testimony on child sexual abuse accommodation syndrome that was
irrelevant and prejudicial; and failure to object to irrelevant and prejudicial
testimony about his prior sexual offenses that went well beyond the
parameters of Evidence Code section 1108. (Ibid.)
In a published opinion, we concluded the evidence was insufficient to
establish that defendant’s conduct was objectively irritating or disturbing
under the statute, and reversed counts 1 and 2. (See § 647.6, subd. (c)(2);
Clotfelter II, supra, 65 Cal.App.5th at p. 52.) We also determined that trial
counsel’s deficient performance warranted reversal of the entire judgment.
(Id. at p. 69.) We remanded for further proceedings on the two counts of
contacting or communicating with a 14 or 15-year-old child with the intent to
commit a sexual offense (§§ 288.3, subd. (a), 288, subd. (c)(1) [counts 3 & 4]),
and the two counts of contacting or communicating with a child under the age
of 14 with the intent to commit a sexual offense (§§ 288.3, subd. (a), 288,
subd. (a) [counts 5 & 6].) (Ibid.)
As we discuss below in Clotfelter II, on remand the district attorney
elected not to retry the four felony sex offenses; instead defendant pled no
contest to one misdemeanor count of sexual battery (§ 243) and to simple
felony assault (§ 245), for a sentence of four years, to be served concurrently
with the sentence in Clotfelter I.
Proceedings on Remand
At a hearing on June 22, 2021, “for remittitur and for more comments”
in Clotfelter I, the trial court (Hon. Scott R.L. Young)4 asked defense counsel
4 Different judges presided at the jury trials in Clotfelter I (Hon. Diane
Price) and Clotfelter II (Hon. Mark Boessenecker). And there were two
different prosecutors at each trial.
8
and the prosecutor if the parties would like an indicated sentence. Judge
Young had not presided over the trial in Clotfelter I or Clotfelter II, but
advised counsel he had read this court’s opinion in Clotfelter II, and had read
“the sentencing briefs . . . the appellate court ruling . . . [and] portions of the
court record” in Clotfelter I. The court stated that it “would not be inclined to
strike the prior strikes given the overall pattern of conduct.” Judge Young
also said, “I see these as mandatory [section] 667(c)[(7)][5] sentences of three
consecutive 25 years to life for 75 years to life with Counts Three and Four
[identity theft] being 25 to life on each but stayed pursuant to [section] 654
for a total of 75 to life as it stands at this point.” (Italics added.)
The deputy district attorney present in the courtroom stated that if this
was the court’s indication, the People “would be inclined to proceed to
sentencing” and “dismiss the remaining counts on the case that is before the
court,” referring to Clotfelter I. She added, “I think we can deal with the
other case [referring to Clotfelter II] when it comes back on the remittitur
because I don’t think that affects this analysis.” Defense counsel asked to
continue the matter, so defendant (then on Zoom) could be present in person
and to learn the prosecution’s plans, if any, for Clotfelter II. Additionally, he
wanted to “do another Romero motion, including in that would be the cruel
and unusual punishment arguments.” The trial court continued the hearing,
noting that its indicated sentence would stand “unless there is newer or
5 Section 667, subdivision (c)(7) provides: “If there is a current
conviction for more than one serious or violent felony as described in
paragraph (6), the court shall impose the sentence for each conviction
consecutive to the sentence for any other conviction for which the defendant
may be consecutively sentenced in the manner prescribed by law.” Because
none of Clotfelter’s offenses subject to resentencing on remand—forgery,
perjury, and identity theft—is a violent felony, the trial court’s citation to
subdivision (c)(7) was erroneous.
9
different information.” The trial court stated it would not require new
briefing, but the court would consider anything submitted by the parties.
New Sentencing Hearings in Clotfelter I and Clotfelter II
On August 30, 2021, defendant was resentenced in Clotfelter I and
Clotfelter II. As to the sentence in Clotfelter I, defense counsel, referring to
“the Romero motion and People [v.] Williams” (apparently a reference to
People v. Williams (1998) 17 Cal.4th 148), argued that sentencing defendant
to 75 years to life for property crimes, none of which constitute serious or
violent felonies, fell “way outside the bounds of reason.” Defense counsel
emphasized that the identity theft and forgery charges were wobblers,
meaning they could have been charged as misdemeanors. Further, he
described the perjury charge pertaining to the DMV as “a simple check of a
box,” an apparent reference to the fact that the false statement resulting in
Clotfelter’s conviction was that he checked a box on a DMV form that he had
not applied for a driver’s license in California using a different name within
the past 10 years. Counsel argued, “The Department of Motor Vehicles was
not hurt whatsoever. None of the crimes involved or even hint of violence or
even loss of property caused. Essentially no one was hurt, your Honor . . .
Mr. Clotfelter’s history of criminality is not enough to bring a Draconian
punishment of a life term. Life term is not in the bounds of reason. All of
Mr. Clotfelter’s strikes are from 1988. Put that in perspective. Ronald
Reagan was the president when these crimes were committed and when Mr.
Clotfelter pled to those charges. [¶] Mr. Clotfelter was also convicted in 1996,
in federal court, of four counts of false impersonation of a military officer. No
indication that his shenanigans in that case at the time, and as stupid as it
was at the time, resulted in any act of molestation or caused any real harm.
[¶] In that case, your Honor, there was tons of investigation, and countless
10
children were contacted and talked to, and no allegations whatsoever in 1996
were found that Mr. Clotfelter did anything inappropriate with any children,
other than appear as a military officer, which he was not. [¶] Your Honor,
prior to being released from the federal conviction, Mr. Clotfelter . . . [was]
civilly committed [as a] sexually violent predator and then was civilly
committed, your Honor, to Atascadero and other hospitals for over ten years.
It was approximately 12 years. And that was after already serving time in
1996 and already serving time in 1988. [¶] While in the hospital, your Honor,
Mr. Clotfelter took every class that was available to him and was very honest
with his issues with child molestation. Not only did he take every class in the
hospitals, your Honor. He also elected—he elected to get surgically castrated,
physically castrated, which he did, and then after that, after he was released
and determined no longer to be an S.V.P. . . . [¶] . . . [¶] Your Honor, 75 years
to life is essentially life without the possibility of parole, given the age of Mr.
Clotfelter.”
The trial court denied defendant’s Romero motion and Eighth
Amendment claim, stating: “the Court has read and considered probation’s
pre-sentence report, the briefing submitted by the parties,[6] the appellate
decisions from the First Appellate District, and I’ve really considered these
prior strikes and what the appropriate sentence is. [¶] And when I weigh the
6 It does not appear from the record before us that either Clotfelter or
the district attorney submitted new briefs in connection with the
resentencing in Clotfelter I now before us, or that a new pre-sentence report
was prepared by the probation office in advance of resentencing. We granted
the Attorney General’s motion to augment the record on appeal with these
materials, including Clotfelter’s Romero motion that, according to the
sentencing hearing, included “ ‘cruel and unusual punishment arguments,’ ”
but neither the superior court clerk nor the parties are in possession of any
such documents. As a consequence, we have not seen them.
11
current offenses, the defendant’s background, character, and prospects, the
Court doesn’t find anything exceptional about the present offense or about
the prior convictions that would justify or allow the Court to find that these
strikes are outside—that Mr. Clotfelter is outside of the three strikes
sentencing scheme. [¶] If I were to look at these offenses, the current
offenses alone, whether someone was defrauding the DMV, signing
fraudulent checks, or defrauding UPS alone, it might be a simple felony with
a probation grant. However, there’s been a continuous history of criminality,
and the offenses aren’t remote, given the incarceration. And this really looks
like a larger scheme that’s been continuing since the 80’s.” The court deemed
75 years to life “to be an appropriate sentence, given the continual deception,
deceit, underlying child molestation and continuing to attempt to attain
access to children, and actually getting into schools in the past and having
conduct [sic] with these children.”
Consistent with its indicated sentence, the trial court imposed
“mandatory consecutive sentences” of 25 years to life on the perjury count
(count 1) and on the two forgery counts (counts 5 & 6). (Italics added.) As to
the two identity theft counts (counts 3 & 4), the court imposed and stayed a
term of four years per count (two two-year midterms doubled per § 667, subd.
(b).)
Later at the same hearing, defendant was resentenced in Clotfelter II,
pursuant to a negotiated disposition. The prosecution filed an amended
information that added two additional counts (7 and 8), and dismissed the
counts from Clotfelter II that were reversed on appeal but could have been
retried. Defendant pleaded no contest to assault with force likely to cause
great bodily injury (§ 245, subd. (a)(4)—count 7) and misdemeanor sexual
12
battery (§ 243—count 8). He received an aggregate sentence of four years, to
be served concurrently with his sentence in Clotfelter I.
DISCUSSION
I. Appeal No. A163460
A. Consecutive Sentencing on Remand in Clotfelter I
On remand, the trial court resentenced defendant to a total state prison
term of 75 years to life. The court imposed consecutive 25 years to life “third
strike” terms on one count of perjury and two counts of forgery. Defendant
argues the trial court erroneously believed it had no discretion to impose
concurrent 25 years to life terms on the two forgery counts, referring to those
sentences as “mandatory.” Acknowledging the absence of an objection by his
trial counsel, defendant argues the issue is nevertheless preserved because
the sentence imposed was the result of the trial court’s erroneous
understanding of the Three Strikes law. Alternately, he asserts any
forfeiture of this issue resulted from ineffective assistance of counsel. In
response, the Attorney General makes three arguments: defendant’s claim of
sentencing error is forfeited, defendant did not receive ineffective assistance
of counsel because if there had been an objection the prosecution might have
retried theft charges that were reversed on appeal, and the trial court’s
stated reasons for its sentencing choice demonstrate it would have imposed
consecutive sentences even as a matter of discretion. Notably, the Attorney
General does not dispute defendant’s argument that the trial court erred in
believing consecutive sentences were mandatory on the two forgery counts.
1. Defendant’s Claim is Not Forfeited.
As a preliminary matter, the Attorney General argues we should not
consider this issue because defendant failed to raise it at sentencing. Even
though “a party in a criminal case may not challenge the trial court’s
13
discretionary sentencing choices on appeal if that party did not object at trial”
(People v. Gonzalez (2003) 31 Cal.4th 745, 748; People v. Scott (1994) 9
Cal.4th 331, 356), “[a]n appellate court is generally not prohibited from
reaching a question that has not been preserved for review by a party.”
(People v. Williams, supra, 17 Cal.4th at p. 161, fn. 6.) A trial court’s failure
to exercise the discretion vested in it by law comes within the “narrow class of
sentencing issues that are reviewable in the absence of a timely objection.”
(People v. Leon (2016) 243 Cal.App.4th 1003, 1023.) “ ‘[W]hen the record
shows that the trial court proceeded with sentencing on the . . . assumption it
lacked discretion, remand is necessary so that the trial court may have the
opportunity to exercise its sentencing discretion at a new sentencing hearing.
[Citations.] Defendants are entitled to “sentencing decisions made in the
exercise of the ‘informed discretion’ of the sentencing court,” and a court that
is unaware of its discretionary authority cannot exercise its informed
discretion.’ (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.)” (People v.
McDaniels (2018) 22 Cal.App.5th 420, 425.) Accordingly, we address the
merits of defendant’s claim.7
2. The Trial Court Failed to Exercise Its Sentencing Discretion in
Imposing Consecutive Terms.
Defendant contends the trial court erroneously concluded that the law
required consecutive terms on counts 5 and 6. The record affirmatively
reflects that the trial court believed consecutive terms were “mandatory,”
under section 667, using the word “mandatory” repeatedly. The Attorney
General does not argue otherwise.
7By reason of this holding, we do not reach the issue of whether
defendant received ineffective assistance of counsel.
14
As our Supreme Court recently explained in People v. Henderson (2022)
14 Cal.5th 34 (Henderson), “[w]hen the Three Strikes scheme applies,
sentences for current qualifying offenses must be ordered to run
consecutively to each other if the current offenses occur on separate occasions
and do not arise from the same set of operative facts. (See §§ 667, subd.
(c)(6); 1170.12, subd. (a)(6).)[8] People v. Lawrence (2002) 24 Cal.4th 219[(Lawrence)] explained that, for section 667, subdivision (c)(6) purposes,
felonies are committed ‘on the same occasion’ if they were committed within
‘close temporal and spatial proximity’ of one another. (Lawrence, at p. 233.)
Offenses arise ‘from the same set of operative facts’ when they ‘shar[e]
common acts or criminal conduct that serves to establish the elements of the
current felony offenses of which defendant stands convicted.’ (Ibid.)”
(Henderson, supra, 14 Cal.5th at p. 45.)
On the other hand, “where a sentencing court determines that two or
more current felony convictions were either ‘committed on the same occasion’
or ‘aris[e] from the same set of operative facts’ . . . consecutive sentencing is
not required under the three strikes law, but is permissible in the trial court’s
sound discretion.” (Lawrence, supra, 24 Cal.4th at p. 233; Deloza, supra, 18
Cal.4th at pp. 590-591.)
8 Section 667, subdivision (c)(6) provides: “(c) Notwithstanding any
other law, if a defendant has been convicted of a felony and it has been pled
and proved that the defendant has one or more prior serious or violent felony
convictions as defined in subdivision (d), the court shall adhere to each of the
following: [¶] . . . [¶] (6) If there is a current conviction for more than one
felony count not committed on the same occasion, and not arising from the
same set of operative facts, the court shall sentence the defendant
consecutively on each count pursuant to subdivision (e).” The corresponding
subdivision in section 1170.12, subdivision (a)(6) is virtually identical. (See
People v. Deloza (1998) 18 Cal.4th 585, 588, fn. 3 (Deloza).)
15
Here, both of the forgery offenses were committed around September
2010, when defendant created both documents—the UPS receipt (count 5)
and the Grace Church contributions statement (count 6)—on his personal
computer. Each of these documents was created to make it appear that he
resided at a certain address for a certain period of time so he could obtain
identification documents. Defendant first argues the “close temporal and
spatial proximity” of his crimes compels the conclusion that he committed
them on the same occasion within the meaning of the Three Strikes Law.
Defendant provides no legal authority, nor can we discover any, which
suggests the “same occasion” can be extended to events occurring within the
same month.
Regardless of whether the offenses were committed on the same
occasion, however, we conclude the two forgery convictions involve the same
set of operative facts. As the Attorney General acknowledges on appeal,
“Although the forged documents were created at different times and involved
different victims, they were submitted collectively to the State Department to
obtain a foreign-born birth certificate.”
In light of the undisputed facts, we conclude on the record before us
that the trial court erred in concluding consecutive sentences on the two
forgery convictions were mandatory.
3. Remand is Appropriate.
Here the trial court proceeded with sentencing assuming that it lacked
discretion to sentence defendant to concurrent sentences on the two forgery
counts. When a trial court assumes it lacks discretion, remand is ordinarily
necessary to give the court the opportunity to exercise that discretion at a
new sentencing hearing. The Attorney General argues that we should not
remand, because nothing in the record suggests the trial court would have
16
done anything different, and a remand here would be an “idle and
unnecessary, if not pointless exercise,” citing People v. Coelho (2001) 89
Cal.App.4th 861, 889. Coelho, however, involved “unique circumstances” (id.
at p. 888) not present here. There, the trial court twice imposed 10
consecutive sentences, affirmatively indicating it would impose them “even if
some were not mandatory,” and the record reflected numerous grounds to
support consecutive sentences, any one of which would be sufficient by itself.
(Id. at p. 889.) That is not the case here, where the trial court recognized
that “the current offenses alone, whether someone was defrauding the DMV
. . . or defrauding UPS alone, it might be a simple felony with a probation
grant.” Yet, when it came to imposing consecutive or concurrent sentences
the court gave no reasons, stating “[t]hese are all consecutive, mandatory
consecutive sentences.” Accordingly, we conclude the proper disposition is to
remand for resentencing.
It is not for this court at this time to instruct the trial court how to
resentence on remand. That said, given our familiarity with the records in
Clotfelter I and Clotfelter II, we note the pattern of charging defendant with
crimes that have the most severe sentencing exposures, and then trying
defendant with a focus on crimes he committed over 30 years ago,
notwithstanding that he was later committed to the state hospital, surgically
castrated, and subsequently released.
In Clotfelter I, as we have noted, defendant was initially charged with
11 felony counts and sentenced to 300 years for non-violent theft-related
offenses. We reversed seven theft counts relating to Social Security
payments, which alone removed 175 years from the total sentence based on
the way the case had been charged and sentenced. (Clotfelter I, supra, 2021
WL 386536 at *21.) On remand, after the prosecution decided not to retry
17
defendant on the theft counts, he was sentenced to 75 years to life based on
offenses that could have been charged and punished as misdemeanors. (See,
e.g., Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901-902.) The felony
perjury count (§ 118, subd. (a)) could have been charged as a misdemeanor
under Vehicle Code section 20, which makes it a crime to “knowingly make
any false statement or knowingly conceal any material fact in any document
filed with the Department of Motor Vehicles.” (See People v. Barrowclough
(1974) 39 Cal.App.3d 50, 55.) The forgeries (§ 470, subd. (d)) and related
identity thefts (§ 530.5, subd. (a)) were wobbler offenses, which could have
been sentenced as misdemeanors or felonies. (See § 17, subd. (b); People v.
Guerrero (2020) 9 Cal.5th 244, 248; People v. Mutter (2016) 1 Cal.App.5th
429, 434.)9 On remand in Clotfelter I, the trial court remarked twice during
the sentencing hearing that “[i]f I were to look at these offenses, the current
offenses alone, whether someone was defrauding the DMV,[10] signing
fraudulent checks, or defrauding UPS alone, it might be a simple felony with
a probation grant.” (Italics added.) Yet, the court imposed three consecutive
terms of 25 years to life.
9 An issue on appeal in Clotfelter I was whether as a matter of law
defendant should have been charged with violating Vehicle Code section 20,
rather than perjury. (Clotfelter I, supra, 2021 WL 386536 at *15-16.)
Another issue was whether as a matter of law defendant should have been
charged with violating Welfare and Institutions Code section 11482
(“Fraudulent Representation or Nondisclosure in Attempt to Obtain or
Continue to Receive Aid), a misdemeanor, rather than seven felony theft
charges. The fact that we found no errors as a matter of law does not change
our observations here.
10It should be noted that the DMV charge pertained to perjury, not
fraud. (See Clotfelter I, supra, 2021 WL 386536 at *15-16.)
18
In Clotfelter II, defendant was charged with six felony sexual offenses.
After we reversed the judgments of conviction, Clotfelter pled no contest to a
single misdemeanor and to simple assault. As we noted in our opinion in
Clotfelter II, “[m]uch of the evidence at this trial focused on Clotfelter’s prior
convictions for sex crimes from the 1980’s.” (Clotfelter II, supra, 65
Cal.App.5th at p. 69.) Indeed, the prosecution “led off the first two days of
trial testimony by presenting six witnesses who testified about Clotfelter’s
prior crimes from in the 1980’s.” (Id. at p. 44.) The first witness was an
expert in child sexual abuse accommodation syndrome (CSAAS), who gave
testimony that formed a basis for our holding that defense counsel rendered
ineffective assistance of counsel by failing to object to its admission.11 (Ibid.)
“After that, the next five witnesses testified about Clotfelter’s sexual offenses
in the 1980’s.” (Ibid.) In reversing the conviction for ineffective assistance of
counsel, we wrote that “the jury was bombarded with” inflammatory and
irrelevant testimony. (Id. at p. 67.)12 In the end, the prosecution chose not to
retry the case, and, as we have noted, let defendant plead to a misdemeanor
11 As we wrote: “The CSAAS testimony was not relevant with respect
to the evidence concerning the victims of Clotfelter’s crimes in the 1980’s. It
was undisputed that Clotfelter committed these prior offenses, there was no
testimony that those victims delayed reporting or recanted, and Clotfelter did
not question their credibility at trial. And as to the underlying charges in
this case, it is not at all apparent that the CSAAS testimony was relevant.”
(Clotfelter II, supra, 65 Cal.App.5th at p. 64.)
12 As we wrote, “[w]e assume for purposes of our analysis that some of
the Evidence Code section 1108 evidence of Clotfelter’s prior crimes was
admissible. And in fact, the jury heard voluminous evidence about
Clotfelter’s prior crimes from the 1980’s mostly from his victims. But there
was so much more. The unobjected to testimony [described in the opinion]
was highly inflammatory; it went well beyond the underlying facts of the
prior crimes, which had occurred 30 years ago and long before Clotfelter’s
surgical castration.” (Clotfelter II, supra, 65 Cal.App.5th at p. 67.)
19
sexual battery charge and simple assault. The original 150 years to life in
state prison sentence became a four-year concurrent sentence.
We by no means turn a blind eye to the seriousness of defendant’s prior
convictions for sex crimes in the 1980’s. Or to the fact that defendant stands
convicted of crimes even after our reversals and remands in Clotfelter I and
Clotfelter II that expose him to time in prison even without the application of
the three strikes law.13 On remand, the trial court will have the opportunity
to resentence defendant in light of this opinion.14 At that time, defendant
will be free to renew or make any motions he wishes, including a Romero
motion.
B. Cruel and/or Unusual Punishment
Defendant contends his aggregate term of 75 years to life violates the
state and federal constitutional prohibitions against cruel and unusual
punishment. Because we are remanding to the trial court to exercise its
discretion in resentencing, defendant’s final aggregate sentence is unknown
at this time, making a cruel and/or unusual punishment analysis impossible.
When we were last presented with the issue of cruel and/or unusual
punishment in Clotfelter I, defendant’s sentence was 300 years in state
13At the resentencing in Clotfelter I, defense counsel noted that if the
Romero motion was granted as to two strikes, Clotfelter could still be
sentenced to 10 years, eight months on the remaining charges in that case.
14 In that regard, we note that although the trial court suggested that
the triggering offenses in Clotfelter I were part of defendant’s plan to gain
access to children, we are aware of no evidence to support this accusation. In
Clotfelter II, the prosecution that also arose after the same search that
resulted in the Clotfelter I prosecution, there was no evidence that defendant
concealed his true identity or his status as a registered sex offender when he
contacted the minors and their families. (See, e.g., Clotfelter II, supra, 65
Cal.App.5th at pp. 40, 42, 49.)
20
prison. We refrained from resolving the issue at the time because the case
was still in flux. More than half of the total sentence (175 years) had been
removed as the result of our determination. The length of Clotfelter’s current
sentence in light of the prosecutions and outcomes in Clotfelter I and II is still
a matter of legitimate concern, all of which may be raised by defendant in the
resentencing that will follow this remand.
C. Post-Sentence Custody Credits
Defendant contends the trial court erred in failing to recalculate
defendant’s post-sentence custody credits on remand. The Attorney General
concedes the error, and we agree with the parties.
“When . . . an appellate remand results in modification of a felony
sentence during the term of imprisonment, the trial court must calculate the
actual time the defendant has already served and credit that time against the
‘subsequent sentence.’ ” (People v. Buckhalter (2001) 26 Cal.4th 20, 23
(Buckhalter); In re Martinez (2003) 30 Cal.4th 29, 31 [applying Buckhalter to
resentencing after reversal of conviction]; see also § 2900.1 [when a sentence
is modified while being served, the time already served “shall be credited
upon any subsequent sentence [the defendant] may receive upon a new
commitment for the same criminal act or acts”].)
Here, the trial court gave defendant the same credit award he received
with his original sentence and neglected to recalculate his actual custody
credits. Defendant is entitled to all of the days he spent in custody from the
date of his original sentencing (August 14, 2018) through the date of the
amended abstract of judgment (September 10, 2021). (See Buckhalter, supra,26 Cal.4th at p. 37.) The trial court is directed to recalculate defendant’s
post-sentence custody credits at the time of resentencing.
21
II. Appeal No. A165951
On August 26, 2022, after briefing in this appeal (A163640) was
complete, Clotfelter filed a motion for constructive filing of a late notice of
appeal from a May 12, 2022 order denying his motion to recall his sentence in
Clotfelter I and to resentence him in accordance with Senate Bill No. 81
(2021-2022 Reg. Sess.) (Senate Bill 81), which amended section 1385.15 Over
the Attorney General’s opposition, we granted the motion, and consolidated
Clotfelter’s latest appeal (A165951) with the one then pending (A163640).
Subsequently, Clotfelter’s court appointed counsel filed a no issues brief and
asked this court for an independent review of the record pursuant to Wende,
supra, 25 Cal.3d 436.) Appellate counsel advised Clotfelter that he had the
right to file a supplemental brief, but he did not file one.
Since the completion of the briefing in A165951, our Supreme Court
decided Delgadillo, supra, 14 Cal.5th 216 on December 19, 2022. Delgadillo
holds that when appointed counsel determines that an appeal from an order
15 Senate Bill 81 became effective on January 1, 2022, and amended
section 1385 “to specify factors that the trial court must consider when
deciding whether to strike enhancements from a defendant’s sentence in the
interest of justice.” (People v. Sek (2022) 74 Cal.App.5th 657, 674; see Stats.
2021, ch. 721, § 1.) Section 1385, subdivision (c) now provides: (1)
Notwithstanding any other law, the court shall dismiss an enhancement if it
is in the furtherance of justice to do so, except if dismissal of that
enhancement is prohibited by any initiative statute. [¶] (2) In exercising its
discretion under this subdivision, the court shall consider and afford great
weight to evidence offered by the defendant to prove that any of the
mitigating circumstances . . . are present. Proof of the presence of one or
more of these circumstances weighs greatly in favor of dismissing
the enhancement, unless the court finds that dismissal of the enhancement
would endanger public safety. . . . [¶] . . . [¶] (7) This subdivision shall apply
to sentencings occurring after January 1, 2022.” (Italics added.)
22
denying postconviction relief lacks arguable merit, “Wende procedures are not
constitutionally compelled.” (Delgadillo, supra, 14 Cal.5th at p. 233.)
However, “[w]hen appointed counsel submits notice that such an appeal lacks
arguable merit, the Court of Appeal should provide notice to the defendant
that counsel was unable to find any arguable issues; the defendant may file a
supplemental brief or letter raising any argument the defendant wishes the
court to consider; and if no such supplemental brief or letter is timely filed,
the court may dismiss the appeal as abandoned.” (Id. at p. 222.) “If the
appeal is dismissed as abandoned, the Court of Appeal does not need to write
an opinion but should notify the defendant when it dismisses the matter.”
(Ibid.)
On January 4, 2023, we gave Clotfelter Delgadillo notice, advising him
that this court might dismiss the appeal as abandoned if he failed to file a
supplemental brief. As Clotfelter has not filed any such supplemental brief,
we dismiss the appeal.16
16Although Clotfelter has not filed a supplemental brief, Delgadillo
does not prohibit us from independently reviewing the record. (Delgadillo,
supra, 14 Cal.5th at p. 232 [“[w]hile it is wholly within the court’s discretion,
the Court of Appeal is not barred from conducting its own independent
review of the record”].)
While amended section 1385 addresses “enhancements,” the
“Three Strikes law is a penalty provision, not an enhancement. It is not an
enhancement because it does not add an additional term of imprisonment to
the base term” (People v. Williams (2014) 227 Cal.App.4th 733, 744). Instead,
the “Three Strikes law is a separate sentencing scheme. As the court
explained in Romero: ‘The Three Strikes law, when applicable, takes the
place of whatever law would otherwise determine a defendant’s sentence for
the current offense. (Romero, supra, 13 Cal.4th at p. 524.)” (Henderson,
supra, 14 Cal.5th at p. 43.) Thus, by its plain language, amended section
1385 does not apply to Clotfelter’s sentence, which includes no
enhancements.
23
DISPOSITION
In case No. A163460, the matter is remanded for resentencing
consistent with this opinion. Pursuant to the full resentencing rule, the court
may revisit all of its sentencing choices. (People v. Valenzuela (2019) 7
Cal.5th 415, 424-425; People v. Buycks (2018) 5 Cal.5th 857, 893.) At the
time of resentencing, the trial court is directed to recalculate defendant’s
custody credits pursuant to Buckhalter, supra, 26 Cal.4th 20.) In all other
respects, the judgment is affirmed.
In case No. A165951, we dismiss the appeal.
24
_________________________
Miller, J.
WE CONCUR:
_________________________
Richman, Acting P.J.
_________________________
Markman, J.*
A163460, A165951, People v. Clotfelter
*Judge of the Alameda Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
25