People v. Gonzalez-Buttner CA4/1 ( 2023 )

Filed 5/18/23 P. v. Gonzalez-Buttner CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079065, D079435
Plaintiff and Respondent,
v. (Super. Ct. No. JCF001818)
ANNETTE GONZALEZ-BUTTNER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County,
Christopher J. Plourd, Judge. Reversed and remanded.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistance Attorney General, Robin
H. Urbanksi and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff
and Respondent.
Annette Gonzalez-Buttner appeals from a judgment after a jury
convicted her on four separate charges involving her use of an allegedly false
address to qualify as a candidate for a position on the governing board of the
Imperial County Office of Education (ICOE). The charges, and the appeal,
turn primarily on the elusive and variable legal meaning of the word
“residence.”
To run for a position on the ICOE board, Buttner had to maintain a
“residence” within the designated trustee area in Imperial County. Although
“residence” often means something broader, in this specific context, the
relevant statutes defined “residence” to mean “domicile.” Buttner did live
with her parents in Imperial County when she was first elected in November
2013, but, about a year later, she obtained a temporary job in Santa Clara
and, thereafter, she signed a lease on an apartment and enrolled three of her
four children in public schools in Santa Clara. Meanwhile, Buttner kept her
old room at her parents’ apartment, and continued to receive mail and
maintain her voter’s registration there. Buttner ran again for the same
position in November 2017 and used her parents’ apartment address on her
candidacy forms. She also used that same address on an application for a
driver’s license she submitted around the same time.
The District Attorney for Imperial County filed a complaint against
Buttner in 2019, charging her with two counts of perjury by declaration
(Counts 1 and 4), one count of false declaration of candidacy (Count 2), and
one count of grand theft by fraudulent misappropriation (Count 3), based on
allegations that she knowingly used a false address on the various forms.
Buttner did not testify at trial, but the defense asserted she had—or at least
honestly believed she had—maintained her domicile at her parents’
2
apartment and therefore did not knowingly provide a false address on any of
the forms. The jury convicted Buttner on all four counts.
On appeal, Buttner argues the trial court made numerous
instructional, evidentiary, and other errors, including several related to the
definitions of “residence” and “domicile,” and that the verdicts were not
supported by substantial evidence. We agree that the trial court did not
adequately instruct the jury as to the meaning of “residence” and “domicile.”
And we conclude, further, that the error was prejudicial and requires reversal
of all four counts. At the same time, we conclude there was sufficient
evidence to support the verdicts. We therefore reverse the convictions and
remand the matter to the trial court for further proceedings.
In a second, now consolidated appeal, Buttner asserts that she is
entitled to resentencing under recent changes to Penal Code section 654,
enacted by Assembly Bill No. 518 (Stats. 2021, ch. 441, § 1) (Assembly Bill
518), and that the trial court erred in ordering her to pay substantial sums in
restitution.1 Because we reverse the convictions based on the instructional
error, we need not address these additional arguments. If Buttner is retried
and convicted on remand, she shall be entitled to new hearings on sentencing
and restitution and amended Penal Code section 654 will necessarily apply.
1 Buttner filed two separate notices of appeal and this court initially
assigned two different case numbers, D079065 and D079435. The court has
since consolidated the two appeals under case number D079065.
3
FACTUAL AND PROCEDURAL BACKGROUND
I. Evidence Presented at Trial2
Buttner grew up in the city of Calexico, in Imperial County, California.
Buttner’s parents, Juan and Yolanda Gonzalez, moved into a three-bedroom
apartment on Rockwood Avenue (the Rockwood Apartment) in the early
1980’s. The Gonzalez’s had three children, including Buttner, and each lived
at the Rockwood Apartment at various times over the years. But, for the
majority of the time they lived there, including at the time of trial, Juan and
Yolanda Gonzalez were the only ones listed on the lease agreement. The
Gonzalez’s received federal housing assistance, and met with a
representative from the Housing Authority annually to verify their income
and confirm that they continued to qualify for subsidized housing.
Buttner graduated from high school in Calexico in 1983. She attended
college at the University of California, Santa Cruz for about three years, but
continued to “come and go” at the Rockwood Apartment. Buttner moved back
to Calexico sometime around 2010, to be closer to her parents. By that time,
Buttner had four children of her own, and, at least initially, they all stayed at
the Rockwood Apartment with Buttner’s parents.
Buttner asked to be added to the lease for the Rockwood Apartment,
but her request was denied. The maximum number of residents for the
apartment was six. If Buttner and her four children lived there along with
2 “In light of the sufficiency of the evidence contentions that follow, we
set forth the facts here in the light most favorable to the judgment,” while
also providing additional details relevant to the asserted instructional errors.
(People v. Lee (2011) 51 Cal.4th 620, 625, fn. 5; see Henderson v.
Harnischfeger Corp. (1974) 12 Cal.3d 663, 674 (Henderson) [“in determining
whether or not the instructions given are correct, we must assume that the
jury might have believed the evidence upon which the instruction favorable to
the losing party was predicated”].)
4
her two parents, there would be seven, and the apartment manager would
consider the apartment overcrowded. As a result, Buttner and her children
were not legally allowed to live at the Rockwood Apartment. The manager
testified the complex was “pretty lenient,” but if the tenants did not follow
the rules, they could be evicted.
Buttner and her children moved into their own apartment on McKinley
Street, also in Calexico, for a year or two, but then moved back to the
Rockwood Apartment sometime around 2012 or 2013. When they left the
McKinley Street apartment, they moved all their things, including their
furniture, to the Rockwood Apartment. Buttner’s parents kept their same
bedroom, Buttner and her two daughters shared the second bedroom, and
Buttner’s two sons shared the third.
Buttner worked for the Calexico Unified School District at the time,
and her four children all went to Calexico Unified School District schools.
Her oldest daughter, Analise, attended a home school program for one year in
7th grade, but returned to Calexico public schools for her 8th grade year.
Buttner registered to vote using the Rockwood Apartment address in
May 2013. The Registrar of Voters mailed voter registration documents to
Buttner at the Rockwood Apartment, which Buttner signed and returned.
The 2013 Election
Buttner first ran for a position on the ICOE board, as a representative
from Trustee Area One, in the November 2013 election. To be placed on the
ballot, Buttner had to be a resident of Trustee Area One and had to submit
several forms to the Registrar of Voters verifying her residency and other
details about her candidacy.
Buttner filed a California Form 460, Recipient Committee Campaign
Statement, identifying loans her campaign had received from July 1 to
5
December 31, 2013. Buttner listed herself as a lender to her own campaign
and listed the apartment on McKinley Street as her “street address.” The
form itself was not dated, but Buttner listed August 20, 2013 as the date the
loan was incurred. Buttner also filed a form 410, Statement of Organization
Recipient Committee, which was dated, December 30, 2013. On that form
Buttner listed the Rockwood Apartment as her “street address.” The parties
stipulated that both the McKinley Street apartment and the Rockwood
Apartment fell within Trustee Area One.
Buttner won the election, and obtained a seat on the ICOE governing
board. As a board member, she was eligible to receive health and welfare
benefits at the same rate as certificated management employees of the ICOE.
She also received a stipend of $210 a month for attending board meetings and
compensation for the cost of travel to qualifying conferences. However, the
position created a conflict that disqualified her from maintaining her job with
the Calexico Unified School District.
Buttner Begins Spending Time in Santa Clara
Meanwhile, Buttner’s partner, Christopher Stampolis was living in
Santa Clara. Stampolis applied for a post office box in Santa Clara on
October 9, 2012. He put Buttner’s name on the application and listed an
apartment on Kiely Boulevard in Santa Clara as his address.
Buttner obtained a temporary job working for a local labor union in
Santa Clara and, in the summer of 2014, she took her two daughters to Santa
Clara and enrolled them in a “College for Kids” summer program. They
stayed with Stampolis and his two children at his apartment on Kiely
Boulevard. At first, the girls thought they were just visiting for the summer,
but, eventually, Buttner enrolled them and their brother, Julian, in public
school in Santa Clara. Lenise started 6th grade, Analise started 9th grade,
6
and Julian started 11th grade, all in Santa Clara, in the fall of 2014. Buttner
believed the public schools in Santa Clara were better than those in Calexico.
Not long after, on October 8, 2014, Buttner and Stampolis submitted a
rental application for a different, larger apartment in the same apartment
complex on Kiely Boulevard in Santa Clara. Buttner stated she was working
for the Laborer’s Union in San Jose on the application. Buttner and
Stampolis each signed a one-year lease for an apartment on Kiely Boulevard,
from October 2014 to October 2015.
Buttner’s oldest son, Christian, stayed in Calexico to finish high school.
Certified records from Calexico High School listed Christian’s home and
mailing address as 1149 Cabana Street. Buttner’s brother, Ruben Gonzalez,
lived at the Cabana Street address, and Ruben was listed as Christian’s
emergency contact. However, Christian’s girlfriend testified that he was
actually living at the Rockwood Apartment with his grandparents.
Buttner would return to Calexico at least once a month to attend ICOE
board meetings, and to visit Christian and her parents. Stampolis and her
other children would go with her to Calexico sometimes, but other times they
stayed in Santa Clara so the children would not miss school. When the
children did go to Calexico, they would only stay a few days, because they had
to get back for school, but when Buttner went alone, she would sometimes
stay in Calexico for a week or more.
Buttner filed additional Form 460, Recipient Committee Campaign
Statements with the Registrar of Voters, declaring campaign contributions
and expenses received from July 2013 through the end of 2014. She listed
the Rockwood Apartment as her street address on each of the forms.
7
The Investigation
In April of 2015, the County Superintendent of Schools for Imperial
County, Dr. Todd Finnell, received a complaint about Buttner. According to
Finnell, “[t]he nature of the complaint was that . . . Ms. Buttner and
Mr. Stampolis had enrolled their children -- had established residency in the
district and enrolled their children in the schools of the Santa Clara Unified
School District, . . . and yet [Buttner] was also an elected official in Imperial
County.” The initial complaint came from Susan Harris, a principal at a
school in Santa Clara.
Finnell e-mailed Buttner on Tuesday, May 12, 2015. He told Buttner
that he had become aware of concerns regarding the requirement that she be
a resident of the district to serve on the ICOE Board. He said he would like
to have a meeting about it with her and the Board President. Finnell
testified that Buttner refused to discuss the issue with him. But, that same
day, May 12, 2015, Buttner applied to take courses at West Valley College,
near Santa Clara. She listed the Rockwood Apartment in Calexico as her
“permanent address” on the application, and listed Santa Clara as her
“Current Mailing City.”
Finnell spoke to Rodolfo Moreno, an investigator from the district
attorney’s office over the phone the next day. Defense counsel played a
recording of the call for the jury. During the call, Finnell told Moreno that an
administrator in Santa Clara had reported that Buttner signed school
enrollment forms verifying her residence in Santa Clara, which raised
questions as to her residency as a member of the ICOE board. He said that
Buttner’s response was that her domicile remained in Calexico. He thought
her use of the term “domicile” was strange because “no one uses that word . . .
unless they’re reading statutes.” He expressed concerns that Buttner was
8
continuing to receive compensation and medical benefits for a position he
believed she was no longer qualified to hold. Finnell explained that Buttner
had to sign an affidavit under penalty of perjury stating she lived in Calexico
to run for the ICOE board position, but “also had to do the same thing in
order to enroll her kids . . . up in Santa Clara and so clearly we know that she
is either lying here or lying there.”
The district attorney’s office opened an investigation into the
allegations. On May 22, 2015, an investigator for the district attorney’s office
in Santa Clara went to the Kiely Boulevard apartment to interview Buttner.
He told Buttner he would like to talk to her about an investigation but did
not initially say what the investigation was about. He asked how long
Buttner had been living at the apartment, and she said she had been co-
renting the apartment since October or November. She said she was doing
that so her children could go to school in Santa Clara, but then explained
that she was actually from Calexico. She explained that her oldest child was
still in school in Calexico, and she continued to split her time between Santa
Clara and Calexico, spending about 10 to 12 days a month in Calexico. She
told the investigator that she had a temporary job with a local labor union in
Santa Clara but the job had ended, so she was going to start taking classes at
West Valley College.
When the investigator eventually disclosed that he was there to
investigate complaints about whether Buttner remained qualified to
maintain her position on the ICOE board in Calexico, she explained that her
life was still in Calexico, she was registered to vote in Calexico, she had a
room in Calexico, and, thus, her domicile remained in Calexico. She
explained further that the elected position disqualified her from her previous
job in Calexico, and there were not a lot of other opportunities for work there.
9
She said she had been looking at the law, and, specifically, a portion
discussing how domicile is determined, including when a person leaves their
home for temporary purposes, such as school or work.3 A recording of the
interview was played for the jury.
Buttner sent the investigator from Santa Clara an e-mail later that
same day, showing that she had been enrolled at West Valley College since at
least May 14. Buttner continued attending classes at West Valley College,
and later at DeAnza College. She also drove for Uber and Lyft, in both Santa
Clara and Calexico. The lead investigator for the district attorney’s office in
Imperial County, David Frazier, testified Buttner was “consistent throughout
this entire investigation saying that she believes her domicile is in Calexico.”
The district attorney’s office obtained records from the Santa Clara
Unified School District regarding Buttner’s children. Included among the
records was a letter, dated February 5, 2015, from the Coordinator of Student
Services for the Santa Clara Unified School District to Stampolis and
Buttner, requesting verification of their children’s residency within the school
district, and a number of medical and utility bills listing Buttner as a
resident at the Kiley Boulevard address.
At some point in or around 2015, the media in Calexico began reporting
the allegations regarding Buttner’s residency. And, in December 2015,
Finnell received a second complaint from Susan Harris’s husband, Greg
Harris. That same month, Mr. Harris sent an e-mail to Debra Porter, the
Registrar of Voters in Calexico, making similar allegations. Porter responded
3 Buttner said she thought it was Education Code section 220, or 2020,
through 2035, but it appears she was referring to the Elections Code, as
Election Code sections 2020 through 2035 address “[d]etermination of
Residence and Domicile,” and contain similar language.
10
by stating it was her understanding that Buttner was domiciled in the correct
area for her candidacy.4
According to Finnell, “[t]hings began to escalate” by early 2016. The
Board of Supervisors, the Registrar of Voters, and other elected officials also
received complaints regarding Buttner’s residency. After meeting with
Finnell, legal counsel for the ICOE drafted a letter, under Finnell’s signature,
setting out the concerns regarding Buttner’s residency. Finnell sent the
letter to Buttner via e-mail on January 29, 2016. He copied the other ICOE
board members on the e-mail, and noted that the attached letter was also
being sent by certified mail.
In the letter, Finnell requested that Buttner provide information in
response to “recent credible allegations regarding your eligibility to serve as a
member of the County Board of Education.” He explained that “school
records at the Santa Clara Unified School District indicate that you maintain
permanent residency in the City of Santa Clara where your children are
enrolled in school,” and that, pursuant to Education Code section 35107, “a
member of the governing board of a school district must be a resident of the
district [in which they serve] during the entire term.” He asserted:
4 In her written response to Greg Harris’s e-mail, Porter cited Elections
Code section 2021, subdivision (a), and explained, “a person that leaves his or
her home to go into another state or precinct in this state for temporary
purposes merely, with the intention of returning, does not lose his or her
domicile.” The trial court sustained objections as to hearsay and calling for a
legal conclusion when defense counsel attempted to question Porter about her
response, and later refused to admit the e-mail into evidence, finding that it
would be confusing to the jury under Evidence Code section 352 because it
addressed legal issues in the case.
11
“In determining the place of residence, the following rules
apply:
“1. A place where one remains when not called
elsewhere for labor or special or temporary
purpose and to which he or she returns in seasons
of repose;
“2. There can be only one residence;
“3. A residence cannot be lost until another one is
gained;
“4. The residence can only be changed by the union
of act and intent;
“5. A married person shall have the right to retain
his or her legal residence in the state of
California, notwithstanding the legal residence or
domicile of his or her spouse. (Gov. Code, § 244.)”
He stated, further, that a board member “must prove their residence or
domicile is located within the County’s boundaries,” that “ ‘[d]omicile’ is a
place of physical presence coupled with the intention to make that place one’s
permanent home,” and that a person may have only one domicile at a given
time.
He asked Buttner to respond in writing by February 5, 2016, and to
provide the following information:
“1. Evidence that you reside in your elected district and
have done so since being elected to office.
“2. An explanation as to your children’s registration at the
Santa Clara schools. . . .
“3. An explanation of how you are able to be a resident of
Imperial County while declaring residency in Santa
Clara for your children’s enrollment.”
12
Buttner responded to the letter via her own letter, dated January 31,
2016. Buttner’s letter was six pages long, but Finnell did not believe the
response was sufficient.5
Despite the allegations, the other ICOE board members elected Buttner
as President of the Board in 2016.
The Traffic Stop
From at least 2016 to 2018, Buttner also served as an elected official on
the Imperial County Democratic Central Committee. Buttner received no
stipend or benefits for this work. It was purely a volunteer position. The
committee met in person twice a month in Calexico. Another member of the
committee, Raul Urena, was attending college in Santa Clara, and he and
Buttner would often drive together from Santa Clara to Calexico. According
to Urena, they would typically stay one to two nights in Calexico, and
Buttner would stay with her parents at the Rockwood Apartment. However,
on approximately 10 to 15 separate occasions, Urena either flew down to
Calexico or back to Santa Clara, because Buttner spent more time in Calexico
than his schedule allowed.
Buttner was driving Stampolis’s van on one such trip on the evening of
March 10, 2016. Urena was in the passenger seat. At approximately 10:00
p.m., a California Highway officer pulled the van over, while heading south
on the 101 freeway, away from Santa Clara towards Calexico. Buttner gave
5 As with Porter’s response, the trial court declined to let Finnell discuss
Buttner’s response in any detail and refused to admit the response into
evidence. Buttner cited Elections Code section 349, subdivision (c) in the
response, and pointed out that a person may have more than one residence.
Although she asserts, more generally, that the trial court was inconsistent in
its evidentiary rulings, Buttner does not contend that the court erred by
excluding her response on appeal.
13
the officer her driver’s license and the registration for the vehicle (which
belonged to Stampolis). Buttner received a verbal warning regarding a
broken taillight and a citation for violation of Vehicle Code section 14600,
which requires drivers to notify the DMV within 10 days of moving to a new
residence. The officer who wrote the citation did not testify at trial, but told
an investigator that he did not have any independent recollection of the stop
beyond what was written on the citation itself.
Buttner did not appear in court to contest the ticket. However, on June
8, 2017, she wrote a letter to the court asking the Traffic Commissioner to
set-aside her conviction. Buttner explained that the officer on the stop had
asked her why she had a Calexico address on her license when she was
present in Santa Clara County, and she told the officer she attended classes
in Santa Clara but maintained her domicile in Calexico. Buttner wrote, “I
continue to allege that I am not required to change my driver’s license
address to a temporary address I use while attending school away from my
domicile.” She asserted, further, that she did not receive any notice or
communication regarding the citation at the Rockwood Apartment, which
was her domicile address.
The 2017 Election
Buttner and Stampolis signed a lease agreement for a new apartment,
on Granada Avenue, in Santa Clara, from July 2016 to July 2017. They later
renewed the lease for another year, from July 2017 to July 2018, and, again,
both Buttner and Stampolis signed the renewal contract.
Meanwhile, in 2017, Buttner ran for re-election of her position on the
ICOE Board. Buttner filed a Form 501, Candidate Intention Statement with
the Registrar of Voters on July 25th, 2017. The former Registrar of Voters
for Imperial County explained that the form is required for candidates to
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accept money for their political campaigns but is not used to verify residency,
or, as the statute requires, domicile. Buttner listed the Rockwood Apartment
as her “street address” on the form. She signed the form under penalty of
perjury, certifying that “the foregoing is true and correct.” This document
formed the basis for the charge of perjury by declaration in Count 1 of the
operative amended complaint.
That same day, Buttner filed a Declaration of Candidacy form,
declaring herself a candidate for the Imperial County Board of Education,
Trustee Area One. She listed her “Residence Address” as the Rockwood
Apartment and signed the document, confirming that she was “a registered
voter residing in the above named trustee area.” The form contained an
“OATH OF ALLEGIANCE” below the declaration, which Buttner also signed,
but did not contain any statements indicating either signature was under
penalty of perjury. This document formed the basis of Count 2, filing a false
declaration of candidacy.
Buttner submitted a check for $300 along with her Candidate Intention
Statement. The check was returned based on insufficient funds. The
Registrar of Voters sent a certified letter to Buttner at the Rockwood
Apartment informing her that the check was returned. The letter was
returned to the Registrar of Voters on August 18, 2017 as “unclaimed.” The
Registrar of Voters mailed a ballot to Buttner at the Rockwood Apartment
address for the November 2017 election. The ballot was also returned as
undeliverable on December 28, 2017. As a result, the Registrar of Voters
changed Buttner’s voter registration to “inactive.”
Buttner was re-elected to her position on the ICOE Board for Trustee
Area One on November 7, 2017.
15
Just one week later, on November 15, 2017, Buttner submitted a form
DL 44 application to renew her driver’s license. She listed the Rockwood
Apartment as her “residence address.” The form indicated the “residence
address” is “where you live,” in contrast to a “mailing address,” which is
“where you receive mail.” (Capitalization omitted.) Buttner signed the form
under a statement that read, “I certify that I have read, understand and
agree with the contents of this form. I acknowledge that I have received a
copy of the declarations and certification statements pertaining to the
issuance of a driver’s license or identification card. I certify (or declare)
under penalty of perjury under the laws of the state of California that the
foregoing is true and correct.” This document formed the basis of Count 4,
perjury by declaration.
On April 5, 2018, Buttner went to the Registrar of Voters office and
asked to have her name removed from the inactive list. She submitted a
handwritten note that read: “Please remove inactive status from my
domicile. I have not changed domiciles, and any postal return was in error.”
She signed the note and wrote the address for the Rockwood Apartment
below her signature. The Registrar of Voters activated her registration in
Calexico at that time.
On August 1, 2018, Buttner signed a Residency Declaration for her
daughter, Lenise, in Santa Clara. She listed the Granada Avenue apartment
as her “Current Street Address” and the Kiely Boulevard apartment as her
last previous address. The document stated: “My student resides with me
full time (or legally mandated residency of 50% or more) at the address listed
above, which is my full time primary residence. I agree to notify the District,
within 15 calendar days, if the student or I, move.” Buttner signed the
document under penalty of perjury. Buttner filed a similar form the next
16
year, after she was charged, and, on that form, she crossed out the words “full
time, primary residence.”
On September 10, 2018, several investigators from the district
attorney’s office set out to ascertain where Buttner would be traveling to
following an ICOE Board meeting. Supervising district attorney investigator,
Carl Armstrong explained, “[a]fter the Board meeting, [Buttner] was picked
up by a white Nissan and then she traveled to the City of Calexico, and then
she traveled to the City of El Centro and then subsequently northbound on
Highway 86 out of Westmorland.” The investigators followed the car long
enough to determine Buttner was leaving town that same evening.
On November 30, 2018, Buttner filed a form with the postal service
changing her mailing address from the apartment on Granada Avenue in
Santa Clara to the P.O. Box in Santa Clara.
Buttner did not testify at trial.
II. Instructions and Closing Arguments
As we discuss in more detail below, the parties had extensive
discussions throughout the trial about instructions to the jury as to the
meaning of the words “residence” and “domicile.” The trial court instructed
the jury, in part, that “[r]esident means domicile,” and, “[a]t any given time, a
person may have only one domicile.” Defense counsel argued strenuously to
restrict that definition to the context of voting and elections, and to also
instruct the jury that, in other contexts, “residence” can mean “a place where
a person’s habitation is fixed for some period of time, but where she does not
have the intention of remaining,” and, under this definition, a person may
have more than one residence. The trial court refused to give these
additional instructions, but did instruct the jury that a person does not lose
their domicile by going to another place “for temporary purposes.”
17
During closing arguments, the prosecutor told the jury: “ ‘The domicile
of a person is that place where a person’s habitation is fixed.’ What does that
mean? It simply means habitation. It’s where the person is living, that’s it.
Okay? And ‘fixed’ means for a time. Right? So where is the person living.”
He then asserted the evidence proved Buttner established her residence, and
thus her domicile, in Santa Clara, because “[h]er habitation or where she was
living was fixed when she moved [to Santa Clara].” And, he argued, further,
“she legally enrolled her kids in school there because that’s where she was
living.”
In response, defense counsel asserted Buttner did not have the intent
necessary to commit any of the alleged crimes because she always believed
her domicile remained in Calexico.6 She argued the evidence showed Buttner
was “doing her job and her life in Calexico, representing the people, going to
her meetings, doing work,” and had consistently maintained her domicile in
Calexico. And, although the court had refused to so instruct the jury, she told
them that the law was complicated, that “residence” did not always mean
“domicile,” and that a person could have more than one residence at a given
time. Finally, she told the jury it did not need to determine Buttner’s actual
residence or domicile, and only needed to decide what Buttner believed when
she signed the various forms.
III. Verdict and Sentencing
The jury found Buttner guilty on all charges. The trial court sentenced
her to a combined sentence of four years, with three years to be served in
6 We set forth the elements of the asserted causes of action in more detail
post, but note here that the parties agree, and the jury was instructed, that
perjury and theft by false pretenses are specific intent crimes, and the false
declaration of candidacy charge required that Buttner knowingly included a
false statement on the form.
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county prison and one year to be served under mandatory probation. In
addition, the court ordered that Buttner pay $39,800.94 in restitution to the
ICOE, for compensation received during her second term, and $124,499.07 in
restitution to the Imperial County School Voluntary Employee Benefit
Association (ICSVEBA), for medical benefits received during the same period.
DISCUSSION
I. The Trial Court Erred by Providing an Incomplete Instruction as to
the Meaning of the Key Terms “Residence” and “Domicile”
Buttner raises a multitude of alleged errors on appeal, but her primary
contention is that the trial court failed to adequately instruct the jury as to
the nuances surrounding the legal definitions of “residence” and “domicile.”
She contends the omitted instructions were critical because her primary
defense was that she did not have the requisite mens rea for the alleged
crimes and, instead, always believed based on her own review of the law that
she could legally maintain her domicile in Calexico despite having a
temporary residence in Santa Clara. As we explain, we agree that the trial
court’s instructions left out key provisions of the statutory law relevant to the
legal meaning of the terms, particularly the variable meaning of the term
“residence” in different contexts. And because the legal meaning of those
terms was fundamental to both the charges and Buttner’s defense, the error
requires reversal of all four counts.
A. Standard of Review
We consider de novo whether the trial court’s jury instructions correctly
stated the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) “ ‘In deciding
whether an instruction is erroneous, we ascertain at the threshold what the
relevant law provides. We next determine what meaning the charge conveys
in this regard. Here the question is, how would a reasonable juror
understand the instruction. [Citation.] In addressing this question, we
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consider the specific language under challenge and, if necessary, the charge
in its entirety. [Citation.] Finally, we determine whether the instruction, so
understood, states the applicable law correctly.’ ” (People v. Pearson (2013)
56 Cal.4th 393, 476.) “ ‘The test is whether there is a “reasonable likelihood
that the jury . . . understood the charge,” in a manner that violated
defendant’s rights.’ ” (Ibid.)
Although we view the evidence in the light most favorable to the
verdict when considering the sufficiency of the evidence, “in determining
whether or not the instructions given are correct, we must assume that the
jury might have believed the evidence upon which the instruction favorable to
the losing party was predicated, and that if the correct instruction had been
given upon that subject the jury might have rendered a verdict in favor of the
losing party.’ ” (Henderson, supra, 12 Cal.3d at p. 674; accord Strouse v.
Webcor Construction, L.P. (2019) 34 Cal.App.5th 703, 713.)
B. Legal Definitions of Residence and Domicile
We begin with the threshold question of what the law provides. As our
high court has long recognized, “[r]esidence, as used in the law, is a most
elusive and indefinite term. It has been variously defined, and means one
thing under [one set of] laws, another under [a different set of] laws, and still
another under [a third set of] laws.” (Briggs v. Superior Court of Alameda
County (1947) 81 Cal.App.2d 240, 245.)
“Courts and legal writers usually distinguish ‘domicile’ and ‘residence,’
so that ‘domicile’ is the one location with which for legal purposes a person is
considered to have the most settled and permanent connection, the place
where [s]he intends to remain and to which, whenever [s]he is absent, [s]he
has the intention of returning, but which the law may also assign to [her]
constructively; whereas ‘residence’ connotes any factual place of abode of
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some permanency, more than a mere temporary sojourn. ‘Domicile’ normally
is the more comprehensive term, in that it includes both the act of residence
and an intention to remain; a person may have only one domicile at a given
time, but [s]he may have more than one physical residence separate from
[her] domicile, and at the same time. [Citations.] But statutes do not always
make this distinction in the employment of those words. They frequently use
‘residence’ and ‘resident’ in the legal meaning of ‘domicile’ and ‘domiciliary,’
and at other times in the meaning of factual residence or in still other shades
of meaning.” (Smith v. Smith (1955) 45 Cal.2d 235, 239 (Smith); accord
Estate of El Wardani (2022) 82 Cal.App.5th 870, 883 [discussing Smith];
Whittell v. Franchise Tax Bd. (1964) 231 Cal.App.2d 278, 284 (Whittell)
[“While a person can have in law only one domicile [citation], he may have
several ‘residences’ for different purposes”]; Martinez v. Bynum (1983)
461 U.S. 321, 338 [“A difference between the concepts of residence and
domicile has long been recognized”].)
Thus, while the meaning of domicile is relatively fixed, it is “well
settled that ‘residence’ is a term of varying import and its statutory meaning
depends on the context and the purpose of the statute in which it is used.”
(Whittell, supra, 231 Cal.App.2d at p. 284; see also DeMiglio v. Mashore
(1992) 4 Cal.App.4th 1260, 1268 [describing domicile as a fixed place of
residence, requiring a union of physical presence and intent to remain
indefinitely]; In re Marriage of Tucker (1991) 226 Cal.App.3d 1249,
1258−1259 (Tucker) [“In order to establish a new domicile, a person must
show ‘ “(1) physical presence at the new location with (2) an intention to
remain there indefinitely” ’ ”].) Before turning to the instruction proffered by
the trial court, we therefore consider the context in which “residence” is used
in the various statutes at issue here.
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1. Statutes Addressing “Residence” for Purposes of Voting and
Elections
As noted, the prosecution’s theory of the case was that Buttner
provided a false address to meet the residency requirement for an elected
position on the ICOE board. The People asserted, in Count 1, that Buttner
perjured herself by providing a false address on a Candidate Intention
Statement, which she signed under penalty of perjury on July 25, 2017.
Likewise, they asserted, in Count 2, that Buttner provided a false address on
a Declaration of Candidacy form submitted that same day. And, in Count 3,
the People argued that Buttner committed grand theft by accepting money
and benefits after qualifying for the election because of these same alleged
misrepresentations. We therefore begin with statutes defining residency in
the context of county board of education elections.
The provisions of the Elections Code, and other related statutes,
governing such elections, generally adopt definitions of “resident” or
“residence” that are consistent with the traditional meaning of “domicile.”
(See Walters v. Weed (1988) 45 Cal.3d 1, 7−8.) Doing so ensures all
individuals have a single place to vote, and that they are not disqualified
from voting in one place until a new one is acquired. (Ibid. [“To [e]nsure that
everyone has a domicile at any given time, the statutes adopt the rule that a
domicile is not lost until a new one is acquired”].)
Of relevance here, Education Code section 1000, subdivision (a), sets
forth the requirements to be elected to a county board of education, and
provides, in relevant part, “[e]ach member of the board shall be an elector of
the trustee area that the member represents, and shall be elected by the
electors of the trustee area.” (Italics added.) A qualified “elector” is someone
who meets the voting requirements for age, residency, and registration and
has the present right to vote in an election. (Black’s Law Dict. (11th ed.
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2019) p. 656, col. 1.) Elections Code section 321, subdivision (a) defines an
“ ‘[e]lector’ ” as “a person who is a United States citizen 18 years of age or
older and, except as specified in subdivision (b), is a resident of an election
precinct in this state on or before the day of an election.” (Italics added; see
also Id., subd. (b) [setting forth an exception for members of the military and
other similar government-based professions].)
Elections Code section 349, in turn, defines “residence” and provides, in
full:
“(a) ‘Residence’ for voting purposes means a person’s
domicile.
“(b) The domicile of a person is that place in which his or
her habitation is fixed, wherein the person has the
intention of remaining, and to which, whenever he or she is
absent, the person has the intention of returning. At a
given time, a person may have only one domicile.
“(c) The residence of a person is that place in which the
person’s habitation is fixed for some period of time, but
wherein he or she does not have the intention of remaining.
At a given time, a person may have more than one
residence.” (Italics added.)
Construing these statutes together, Buttner had to be an “elector” of
her district to qualify as a candidate. (Ed. Code, § 1000, subd. (a).) Because
the term “elector” refers to voting eligibility and requires residence in the
district (Elec. Code, § 321, subd. (a)), the definition of residence “for voting
purposes” also applied to Buttner’s qualification as a candidate. (Elec. Code,
§ 349, subd. (a).) For voting purposes, “residence” means “domicile.” (Ibid.)
Accordingly, Buttner had to establish that she was domiciled within Trustee
Area One to qualify as a candidate for the ICOE Board for that district.
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But, as Elections Code section 349, subdivision (c) suggests, residence
does not always mean domicile, and, in some contexts, a person can have
more than one residence. Division 2, Chapter 1, Article 2 of the Elections
Code, titled “Determination of Residence and Domicile,” provides additional
guidance, and further distinguishes the two terms. Section 2021 clarifies
that a person does not lose their domicile, or gain a new one, by leaving their
home “for temporary purposes merely, with the intention of returning,” or
“without the intention of making [that place their] home.” (Elec. Code,
§ 2021.) Section 2025 explains, further, that “[a] person does not gain or lose
a domicile solely by reason of his or her presence or absence from a place
while employed in the service of the United States or of this state, nor while
engaged in navigation, nor while a student of any institution of learning,” but
that a student can change their domicile and qualify as an elector in a new
place if the student has abandoned her previous domicile. (Elec. Code,
§ 2025, italics added.) Finally, section 2026 clarifies that members of
Congress are presumed to maintain their domicile at the place where they
initially registered, despite establishing “another residence,” and, among
other things, enrolling their children in school at that new residence, where
they work. (Elec. Code, § 2026.)
2. Statutes Addressing “Residence” for Purposes of Compulsory
Education
We turn next to Title 2 of the Education Code, which addresses the
residency requirement for the enrollment of children in public schools for
elementary and secondary education. There were no charges stemming from
Buttner’s enrollment of her children in public school in Santa Clara, but it
was nevertheless an important part of the prosecution’s case. The People
submitted evidence, including certified records from the Santa Clara Unified
School District, that Buttner had established “residency” in Santa Clara to
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enroll her children there, and asserted that Buttner must have lied either on
the school residency forms in Santa Clara or the candidacy forms in Calexico.
With some limited exceptions, Education Code section 48200 mandates
compulsory full-time education for children between the ages of 6 and 18, and
specifies that all such children “shall attend the public full-time day
school . . . of the school district in which the residenc[y] of either the parent or
legal guardian is located.” (Ibid., italics added; see also Katz v. Los Gatos-
Saratoga Joint Union High School Dist. (2004) 117 Cal.App.4th 47, 57 (Katz)
[“Section 48200 embodies the general rule that parental residence dictates a
pupil’s proper school district”].) This is the portion of the Education Code
that Finnell referenced during his testimony at trial when discussing the
residency requirements for children to attend public schools and, specifically,
the documents Buttner had to submit to verify residency for her children to
attend school in Santa Clara.
Notably, the Education Code does not define “residency” in this context.
(See Katz, supra, 117 Cal.App.4th at pp. 63, 66 [finding the term ambiguous
and concluding the case did not require the court “to interpret the word
‘residence’ as used in the statute or to consider whether it means the same
thing as domicile, dwelling, abode, or habitation”]; Ed. Code, § 68062
[defining residence specifically for the purpose of post-secondary (college)
education and tuition].) However, Education Code section 48204 provides
several exceptions to the general rule set forth in section 48200, including
that a child may attend a school if the child “lives in the home of a caregiving
adult that is located within the boundaries of that school district.” (Ed. Code,
§ 45204, subd. (a)(5), italics added; see Katz, supra, at p. 58 [“The section as a
whole thus embodies exceptions to the general rule of parental residence as
the determinant of school district enrollment”].) Further, Education Code
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section 48204.1 sets forth the types of documentation that qualify as
“evidence that the pupil meets the residency requirements for school
attendance.” It provides, “[r]easonable evidence of residency for a pupil living
with his or her parent . . . shall be established by documentation showing the
name and address of the parent . . . including, but not limited to . . . [a r]ental
property contract, lease or payment receipts [or a u]tility service contract,
statement or payment receipts.” (Ed. Code, § 48204.1.)
Thus, there is at least some indication the Legislature intended
residence, in the context of compulsory public education, to mean, simply,
where the child is currently living, and not necessarily where their parents or
guardians maintain their domicile. This makes sense because, logistically,
children need to go to school in the place where they are presently located. If
a parent were to take a temporary job assignment in another city, for
example, they may need to enroll their children in the local school in that
location, during the time they are living there. As noted, the Elections Code
expressly allows members of Congress to maintain their original domicile
despite enrolling their children in school at a second residence, presumably,
where they live while in session. (See Elec. Code, § 2026, subd. (a).)
3. Statutes Addressing “Residence” for Purposes of Obtaining a
Driver’s License
Finally, because the People alleged in Count 4 that Buttner provided a
false address on a driver’s license renewal application, we consider the
Vehicle Code provisions governing such applications.
Vehicle Code section 12800 governs applications for an original or
renewal of a driver’s license. It requires that the applicant provide their
“true” “mailing address” and “residence address” but, like the Education
Code, the Vehicle Code does not define “residence” in this context. (Ibid.; see
also Veh. Code, § 12800.7, subd. (a) [“Upon application for an original,
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renewal, or duplicate of a driver’s license the department may require the
applicant to produce any identification that it determines is necessary in
order to ensure that the name of the applicant stated in the application is
their true, full name and that their residence address as set forth in the
application is their true residence address”].)
Vehicle Code section 516 defines “ ‘Resident’ ” as “any person who
manifests an intent to live or be located in this state on more than a
temporary or transient basis,” and provides, further, that “[p]resence in the
state for six months or more in any 12-month period gives rise to a rebuttable
presumption of residency.” It then goes on to list types of evidence for
proving residence for the purpose of vehicle registration. (Ibid.) The list
includes both items indicative of domicile, such as an “[a]ddress where
registered to vote,” as well as items more generally associated with residence,
such as “[r]enting or leasing a home for use as a residence” and “[a]ttendance
of dependents at a primary or secondary school.” (Ibid.)
Vehicle Code section 12505, in Chapter 1, Article 1, governs persons
required to obtain a California driver’s license, and provides, “[f]or purposes
of this division only and notwithstanding Section 516, residency shall be
determined as a person’s state of domicile.” This definition does not govern
the application process though, and, instead, relates primarily to whether an
individual is sufficiently established as a resident of the state, such that the
law requires them to obtain a California driver’s license or vehicle
registration in the first instance.
4. Summary of Legal Principles Derived from the Foregoing
Statutes
From our review of the relevant statutes, we ascertain the following
legal principles relevant to the case at hand:
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In the context of determining a person’s residence for the purpose of
registering to vote, or running for certain elected positions, residence means
domicile, a place in which a person’s habitation is fixed, wherein she has the
intention of remaining, and to which, whenever she is absent, she has the
intention of returning. At any given time, a person may have only one
domicile, and a person does not lose their domicile, or gain a new one, by
going to another place for a temporary purpose. However, residence does not
always mean domicile. Residence can also mean a place in which a person’s
habitation is fixed for some shorter period, but wherein she does not have the
intention of remaining indefinitely. At any given time, a person may have
more than one residence for various purposes other than voting or running
for office.
The Education Code requires that a child attend school in the school
district in which the residency of either the parent or legal guardian is
located, but it does not define residence, or suggest that residence means
domicile. Rather, there is at least some indication that the Legislature
intended to use “residence” in the broader, more ordinary meaning of the
term. Likewise, the Vehicle Code requires persons to state their true
“residence address” when applying for or renewing a driver’s license, but also
does not define “residence” specifically in that context.
C. The Trial Court’s Instructions on the Meaning of “Residence” and
“Domicile” Were Erroneously Incomplete
With these general principles in mind, we now turn to the instructions
the trial court provided to the jury.
In its preliminary instructions, the trial court told the jury, “[s]ome
words and phrases that may be used during the trial have legal meanings
that are different from their meanings in everyday use. These words and
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phrases will be specifically defined in the instructions. Please be sure to
listen carefully and follow the definitions that I gave [sic] you.”
The parties then had extensive discussions throughout the trial about
how to instruct the jury on the legal meaning of the terms “residence” and
“domicile.” The defense sought to include the language from Elections Code
section 349, defining both terms, in its entirety, without modification, and
including subdivision (c) defining “residence” and stating that a person may
have more than one residence at a time. The prosecutor proposed two
separate, but related instructions, both focused primarily on the meaning of
“domicile.”
“People’s Special Instruction #4” stated: “ ‘Residence’ for purposes of
Education Code section 35107[7] means ‘domicile,’ a place of physical
presence coupled with an intention to make that place one’s permanent
home; a person may only have one domicile at any given time.” “People’s
Special Instruction #5” included language from Education Code section 1000,
subdivision (a) and Elections Code section 321, requiring that each county
board of education member be an “elector” and defining the term; and then
similarly stated: “ ‘Residence’ for purposes of Education Code section 1000
means ‘domicile,’ a place of physical presence coupled with an intention to
make that place one’s permanent home; a person may only have one domicile
at any given time.”
The court began with the prosecutor’s first proposal and suggested
replacing “ ‘for purposes of Education Code [section] 35107’ ” with “ ‘for
7 Education Code section 35107, subdivision (a), sets forth the
qualifications for members of the governing board of a school district. The
parties later agreed that Education Code section 1000, as opposed to section
35107, applies here, as it sets forth the qualifications for members of a county
board of education, like the ICOE.
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purposes of this instruction.’ ” Defense counsel indicated she would prefer
her own, more complete version of the instruction, based on Elections Code
section 349. The court initially said it did not have an issue with the more
detailed instruction, but then said it did not believe subdivision (c) was
necessary. Defense counsel stated, “But that’s part of the law,” and the court
responded, “I think that your other instructions conflict with that.” Turning
to defense counsel’s proposed instruction, the court reiterated that its
tentative was to instruct the jury with the language from Elections Code
section 349, subdivisions (a) and (b), but not (c). Defense counsel argued, “So
we’re cutting out the part that she relied on in deciding whether or not she[ ]
was properly domiciled. It’s (a), (b) and (c), and that’s the entire law.” The
trial court indicated it understood the objection and would make a final
decision.
The court then turned to a proposed defense instruction based on
Elections Code section 2021, clarifying that a person does not gain or lose a
domicile by going into another precinct for temporary purposes. The court
explained, “I think this applies. I think she’s saying that she has a domicile
or she has a residence and then implies it’s temporary. Now, there’s
conflicting evidence, and the evidence goes both ways, but clearly there’s
enough evidence to support this instruction.” (Italics added.) The court then
noted “People’s Special Instruction [#]5” was “the more complete instruction.”
Defense counsel continued to object and request that the court instruct the
jury with the full language of Elections Code section 349. The trial court said
it would “try to make a decision as to how to harmonize both requests.”
The trial court proposed its own instruction in the next set of proposed
instructions. Like “People’s Special Instruction #5,” the court’s proposal
included language from Education Code 1000, subdivision (a), the definition
30
of “elector” from Elections Code section 321, and the language from Elections
Code section 349, subdivisions (a) and (b), but not (c). In response, defense
counsel argued, “[I]t’s important to note, though, that the law . . . states you
can only have one domicile, but you can have multiple residences.” She
explained further, “[I]t goes to her intent as to what she was thinking at the
time, right, and based on what she read in the law. So that’s why these
instructions are so important. . . . [W]e are not deciding what her residence
was or what her domicile was. We’re deciding what her intent was, and so
that’s why we need to have an additional one that you can have multiple
residences.” During the next round of discussions, the court characterized
the issue as “whether or not for purposes of being elected Ms. Buttner is or is
not a resident of the area.” Defense counsel insisted, to the contrary, that the
issue “was her specific intent – or her general intent when she signs those
documents.” She continued, “[Y]ou can have multiple residences and that’s
what she was relying on when she was residing in Santa Clara.” She
asserted, “[T]his is a correct statement of the law” and the court is “excluding
the part that really helps my client.”
In the last round of discussion, the trial court combined its previously
proposed instruction with another previously proposed instruction on the
elements of Count 2, providing a false declaration of candidacy. The court
also omitted the “for purposes of this instruction” language from the
definition of “residence.” It said it did so because the term residence “means
what it means throughout the case,” and—even though it had just
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incorporated the definition into the instruction only on count 2—explained
the definition of “residence” was applicable to at least counts 1, 2 and 3.8
Ultimately, the trial court instructed the jury as follows:
“The Defendant is charged in Count 2 of having committed
the crime of False Declaration of Candidacy in violation of
Section 18203 of the California Elections Code.
“It is alleged that the defendant made the following false
statements:
“Count 2: By stating on July 25th, 2017, on her
Declaration of Candidacy form (Exhibit #12) that she,
Annette Buttner, resided at 1620 Rockwood Avenue,
Apartment 6, Calexico, California, 92231.
“Any person who files or submits for filing a nomination
paper or Declaration of Candidacy knowing that it or any
part of it has been made falsely is guilty of the crime of
False Declaration of Candidacy in violation of Elections
Code Section 18203.
“In order to prove this crime, each of the following elements
must be proved:
“1. The person filed or submitted for filing a nomination
paper or Declaration of Candidacy;
“AND
“2. The person knew the statement was false.
“An office becomes vacant upon his or her ceasing to be an
inhabitant of the state, or if the office be local and one for
which local residence is required by law of the district,
county, or city for which the officer was chosen or
8 As noted in the factual background, Count 4 was based on the driver’s
license application Buttner submitted in November 2017. The form itself
required both a “mailing address” and a “residence address.”
32
appointed, or within which the duties of his or her office are
required to be discharged.
“Each County in California shall have a County Board of
Education. Each member of the County Board of Education
shall be an elector (registered voter) of the trustee area
which he or she represents and shall be elected by the
electors (registered voters) of the trustee area. “Elector”
means a person who is a United States citizen 18 years of
age or older and is a resident of the election precinct in this
state on or before the day of an election.
“Resident [sic] means domicile. The domicile of a person is
that place in which his or her habitation is fixed, wherein
the person has the intention of remaining, and, to which,
whenever he or she is absent, the person has the intention of
returning. At a given time, a person may have only one
domicile. Domicile may be shown by circumstantial
evidence.
“A person does not gain or lose a domicile solely by reason of
his or her presence or absence from a place while employed
in the service of the United States or of this state, nor while
engaged in navigation, nor while a student of any
institution of learning, nor while kept in an almshouse,
asylum or prison.
“A person who leaves his or her home to go into another
state or precinct in this state for temporary purposes merely,
with the intention of returning, does not lose his or her
domicile.
“A person does not gain a domicile in any precinct into
which he or she comes for temporary purposes merely,
without the intention of making that precinct his or her
home.” (Italics added.)
We conclude that this instruction was incomplete in at least three key
respects. First, the trial court omitted the phrase “for voting purposes” from
Elections Code section 349, subdivision (a), thereby suggesting that residence
33
always means domicile, and that a person can only have one legal residence
for all purposes. As we have explained, that is not the law. For purposes
other than voting or running for office, residence does not always mean
domicile, and a person may have more than one residence at a time. Second,
the trial court omitted the alternate definition of “residence” from Elections
Code section 349, subdivision (c) in its entirety, which would have told the
jury that residence can also mean a “place in which [a] person’s habitation is
fixed for some period of time, but wherein he or she does not have the
intention of remaining.” (Italics added.) Third, the trial court failed to
provide guidance as to the meaning of “residence” as used in any of the other
relevant statutes, thereby reinforcing the suggestion that residence does not
have any legal meaning other than domicile.9
As a result of these omissions, a reasonable juror reading the
instruction in its entirety might believe, incorrectly, that residence and
domicile are synonymous for all purposes, and that a person may have only
one domicile and, thus, only one legal residence, at any given time. But that
is not the law. Rather, as we have explained, and as Elections Code section
349 itself implies, while residence may be defined to mean domicile in certain
contexts, in others, residence means something less permanent. (See Smith,
supra, 45 Cal.2d at p. 239; Whittell, supra, 231 Cal.App.2d at p. 284.)
Typically, a person can have more than one residence, and does not
necessarily lose their domicile by establishing a second, less permanent
9 The People argue Buttner forfeited any argument that the trial court
failed to provide additional, alternative definitions of “residence” to the jury.
But defense counsel did ask for an instruction based on Education Code
section 48204, and she repeatedly pointed out that Buttner’s defense was
based on an understanding that one may have multiple residences but only
one domicile. Regardless, we would find prejudicial error based on the
omissions of critical language from Education Code section 349 alone.
34
residence. (Whittell, at p. 284; Tucker, 226 Cal.App.3d at p. 1258.) Elections
Code section 349, subdivision (a) states that “ ‘[r]esidence’ for voting purposes
means a person’s domicile.” (Italics added.) It does not state that residence
always means domicile, or that a person cannot have more than one
residence, as the term is traditionally used.
The People essentially concede the point and acknowledge that the trial
court could have provided better guidance as to the meaning of the two terms.
They argue, though, that the errors were not prejudicial. As we explain next,
we disagree.
D. The Error was Prejudicial and Requires Reversal on All Counts
As an initial matter, the parties disagree as to the standard under
which we should evaluate whether the error was prejudicial.
Buttner argues the error effectively precluded the jury from considering
her defense that she did not have the requisite knowledge or mental state to
commit the crimes, and therefore amounted to a due process violation, which
requires application of the federal Chapman standard of prejudice. (See
Chapman v. California (1967) 386 U.S. 18 (Chapman); People v. Larson
(2012) 205 Cal.App.4th 810, 829−830 [an instructional error that removes the
mental state element of an alleged offense from the jury’s consideration
constitutes a due process violation and is subject to the Chapman standard of
prejudice].) But, she contends the error requires reversal under any
standard. The People assert Buttner forfeited her due process claim by
failing to provide adequate supporting authority, and argue that we should
apply the Watson standard of prejudice for state-law errors (People v. Watson
(1956) 46 Cal.2d 818), but likewise contend that the error was harmless
regardless of the applicable standard.
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We need not decide which standard applies. Instead, we conclude the
error requires reversal under either standard. (See People v. Hendrix (2022)
13 Cal.5th 933, 940−944 [considering whether erroneous instruction relevant
to inadequate mens rea defense was subject to Chapman standard of
prejudice but ultimately determining the error was prejudicial under either
standard].) As we will explain, the record contains substantial evidence from
which a rational juror could have determined that Buttner honestly believed
she had maintained—or actually did maintain—her domicile at the Rockwood
Avenue apartment in Calexico, despite having a second residence in Santa
Clara. On this record, there is a reasonable likelihood that at least one juror
would have accepted Buttner’s defense, had the jury been adequately
instructed.
First, there was substantial evidence supporting Buttner’s assertion
that she believed she had maintained her domicile at the Rockwood
Apartment. There was testimony from several witnesses that Buttner and
her children lived in Calexico from at least 2010 to 2013, that Buttner’s
children attended public school in Calexico, and that they moved back to the
Rockwood Apartment with Buttner’s parents in 2013, before going to Santa
Clara. Buttner registered to vote at her parents’ apartment in May 2013, and
maintained that registration even after going to Santa Clara. From this, the
jury could have concluded that Buttner did establish a domicile at the
Rockwood Apartment.
From there, the jury had to decide whether Buttner maintained that
domicile, despite moving, at least temporarily, to Santa Clara. This was the
primary fact dispute in the case, and, as the trial court itself seems to have
acknowledged, there was evidence to support either conclusion. Buttner’s
daughters testified that they initially went up to Santa Clara for the summer
36
and stayed, as guests, at Stampolis’ apartment. Although they eventually
enrolled in school there, Buttner’s older son, Christian stayed in Calexico, at
the Rockwood Apartment. Buttner visited Christian and her parents
regularly and continued to work and volunteer in Calexico. She attended the
majority of the ICOE board meetings, in person in Calexico, and served on a
volunteer board for the Imperial County Democratic Central Committee,
which also met regularly in Calexico. There was at least some credible
evidence that she would often stay for days, or even a week, at a time in
Calexico. And, Buttner continued to maintain a room at the Rockwood
Apartment with her furniture and personal belongings.
In addition, there was ample evidence that Buttner had studied the law
and believed that she remained legally domiciled in Calexico. During her
interview with the investigator in Santa Clara, Buttner explained that she
had gone to Santa Clara for a temporary job, and because the schools were
better there, for both her and her children. But she said that her life was still
in Calexico and she believed her domicile remained in Calexico. She
referenced statutory codes, and specifically stated that she did not lose her
domicile by going somewhere else for temporary purposes, such as school or
work. Another district attorney investigator testified that Buttner was
“consistent throughout this entire investigation saying that she believes her
domicile is in Calexico.” And, although the trial court refused to admit the
written responses into evidence, there was testimony that both Buttner and
Porter responded to inquiries about Buttner’s residency by citing related
caselaw and statutory codes.
Importantly, Buttner never denied that she had established a second
residence in Santa Clara, nor could she. She signed a lease in Santa Clara
and submitted proof of residency to the Santa Clara Unified School District.
37
Rather, Buttner argued that she believed she could do so while legally
maintaining her domicile in Calexico. Defense counsel told the jury, “What
you are supposed to determine at this time is . . . what she thought when she
signed those documents, what was her specific intent, what did she believe.”
(Italics added.) She argued, further, that Buttner believed she was “merely
residing in Santa Clara while she’s going to school and while she had that
temporary job.” (Italics added.)
But while defense counsel understood that residence does not always
mean domicile, the jury did not. Rather, the court instructed the jury,
without qualification, that “[r]esident [sic] means domicile” and a person may
have only one domicile at a time. And it refused to provide the additional
language from Elections Code section 349, subdivision (c), which would have
told the jury that residence can also mean a “place in which [a] person’s
habitation is fixed for some period of time, but wherein he or she does not
have the intention of remaining,” (italics added) and, under that definition,
that a person may have more than one residence. If the court had provided
this additional language to the jurors, they may have concluded that Buttner
at least believed that she had maintained her domicile in Calexico. Absent
the additional instructions, though, the jury was simply left to conclude that
by admittedly residing in Santa Clara and establishing residency for her
children to attend school there, Buttner lost her domicile in Calexico.
We acknowledge that the court did instruct the jury that a person does
not gain a new domicile, or lose their previous domicile, by going to another
state or precinct for “temporary purposes merely, with the intention of
returning,” and “without the intention of making that [new] precinct his or
her home.” (See Elec. Code, § 2021.) But, when read in context, the
instruction implied, as the prosecutor asserted, that temporary meant
38
something more akin to a hotel stay, and that Buttner could not maintain a
second home, or residence, in Santa Clara, without losing her domicile in
Calexico. Thus, it was not sufficient to cure the omission of the additional
language from Elections Code section 349.
Second, the prejudicial nature of the error was compounded by the
prosecution’s arguments to the jury, and by the fact that the court allowed
evidence and argument supporting the inaccurate instruction, while omitting
evidence to the contrary. Buttner asserts her due process rights were
violated by these additional errors. Although we need not, and expressly do
not, find reversible error based on these additional assertions, we do agree
with Buttner that the testimony and argument likely contributed to the jury’s
incomplete understanding of the law surrounding “residence” and “domicile.”
Finnell testified that the “residency” requirement for public school
enrollment would be the same in Santa Clara and Imperial County. He
explained that a child needs to be a “resident” of the district in which they
are going to school, pursuant to Education Code section 48200, and that
schools typically verify residency through paperwork sent to the parents.
Defense counsel tried to clarify whether residency for the purpose of
compulsory education was the same as domicile, but the court sustained an
objection that the question called for a legal conclusion. When defense
counsel pointed out that Finnell had already testified as to his interpretation
of the law, the court stated, in the presence of the jury, “the Court will
ultimately instruct the jury as to what domicile is or is not.”
Similarly, when defense counsel tried to ask Porter about her response
to Greg Harris’s e-mail, in which she said she believed Buttner was properly
domiciled in Calexico, the court sustained an objection that it called for a
legal conclusion. The trial court then allowed Porter to testify that an
39
individual may have only one domicile for the purpose of voting or being
elected, over the prosecutor’s objections, but sustained the very same
objections when defense counsel asked if a person could have more than one
residence. Defense counsel tried to clarify through hypotheticals, and the
court continued to sustain objections. Eventually, the court asked if defense
counsel wanted to qualify Porter as an expert, and, after doing so, allowed
Porter to testify that there is no limit on the number of residences a person
may have.
Later, Finnell testified that he used the terms “residency” or “primary
residence” and “domicile” interchangeably. Defense counsel tried to clarify
once again and asked whether a parent that had two residences could legally
enroll their child in school for six months of the year in each location, but the
court again sustained an objection. Thus, throughout the trial, the court
allowed testimony conflating the terms residence and domicile, while
frequently precluding defense counsel from clarifying.
The prosecutor then relied on the trial court’s incomplete instruction
and the foregoing testimony during closing arguments to assert that Buttner
could not have maintained her domicile in Calexico merely because she was
living in Santa Clara. Thus, “the instruction created an ambiguity which the
trial court expressly allowed to be exploited by the prosecutor,” thereby
increasing the likelihood that the jury relied on an incomplete understanding
of the key terms in reaching its verdict. (People v. Hayes (2009) 171
Cal.App.4th 549; 557 People v. Lee (1987) 43 Cal.3d 666, 677 [finding closing
arguments relevant in assessing prejudice from instructional error].)
The prosecutor referred to the instruction on “domicile” at the outset of
his argument and told the jury: “[I]t’s not confusing, it’s clear;” “It simply
means habitation. It’s where the person is living, that’s it.” He continued:
40
“Their defense, if you believe that she was really living with her parents this
whole time, then that means she lied in Santa Clara . . . ¶ Now, do I think
that happened? No. . . . I think she legally enrolled her kids in school
because that’s where she was living. She established residency there. That’s
where her domicile was, in Santa Clara.” (Italics added.) He reiterated the
same point later, stating: “She said she keeps her domicile. Listen to that
word. Well, a domicile is not something you keep. It’s where you live. You
can’t just have something on paper and say you live on a piece of paper. You
can’t do it.” And he suggested that going into another precinct for a
temporary purpose would not include a second residence. He told the jury, if
someone “goes and stays at a hotel for a few weeks for work and goes home to
another place where they live, where they have a lease and do all that, that’s
their domicile. It’s not the hotel that they are staying at, it’s not their
parents’ house.”
The argument implied that residency and domicile are the same, for all
purposes and, more specifically, that it was not possible for Buttner to
establish residency in Santa Clara while maintaining her domicile in
Calexico. As we have explained, the law does not preclude a person from
having more than one residence for purposes other than voting or running for
office, but the incomplete instruction would have led a reasonable jury to
believe that it does. And, since there was evidence Buttner researched the
law, a reasonable juror would further be compelled to conclude that she could
not have believed that the law allowed her to establish a residence in Santa
Clara while also maintaining her domicile in Calexico.
Without a complete understanding of the law that Buttner claimed to
have read and relied on, the jury could not adequately evaluate her defense.
Or, as defense counsel put it: “[T]o deny her this instruction . . . that you can
41
only have one domicile but multiple residences, which is her defense, would
be to deny her [a] defense in this case.” And because that same defense
applied to all asserted counts, the error requires reversal of all four counts.
II. Substantial Evidence Supports the Convictions
Buttner also asserts the evidence was insufficient to support the
convictions as to each of the four counts. “Although reversal is required
based on the instructional errors alone, we nevertheless consider [the]
insufficiency of the evidence argument to determine whether retrial is barred
by double jeopardy principles.” (People v. Wetle (2019) 43 Cal.App.5th 375,
388 (Wetle), citing United States v. DiFrancesco (1980) 449 U.S. 117, 131.)
An appellant challenging the sufficiency of the evidence “bears an
enormous burden.” (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.) “In
assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses
evidence that is reasonable, credible, and of solid value such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We do not reweigh the
evidence or reevaluate the credibility of witnesses and need not determine
whether the evidence proves guilt beyond a reasonable doubt. (People v.
Jennings (2010) 50 Cal.4th 616, 638.) We presume the existence of every fact
in support of the judgment the jury reasonably could deduce from the
evidence. (Id. at pp. 638-639.) If the circumstances reasonably justify the
findings made by the trier of fact, reversal of the judgment is not warranted
simply because the circumstances might also reasonably be reconciled with a
contrary finding. (Id. at p. 639.)
42
A. Perjury, Counts 1 and 4
The jury found Buttner guilty of two counts of perjury; one based on the
Form 501, Candidate Intention Statement Buttner filed with the Registrar of
Voters on July 25th, 2017 (Count 1), and one based on the DL 44 application
to renew a driver’s license Buttner submitted to the DMV on November 15,
2017 (Count 4).
Perjury is a specific intent crime. (People v. Post (2001) 94 Cal.App.4th
467, 481.) To prove a charge of perjury in violation of Penal Code section 118,
the prosecution must present evidence establishing: “(1) a willful statement,
(2) the statement was made under oath or affirmation, (3) the statement
involved a material matter; and (4) the witness knows the statement is false.”
(People v. Lucero (2019) 41 Cal.App.5th 370, 406.) “ ‘[I]t is not sufficient to
support the charge of perjury that the accused swears to a material fact that
is false, the false swearing must be knowingly and wilfully [sic] done.’ ”
(People v. Viniegra (1982) 130 Cal.App.3d 577, 586 (Viniegra), original
italics.)
Buttner relies on People v. Macken (1939) 32 Cal.App.2d 31 (Macken) to
assert the perjury convictions are subject to a heightened standard of proof.10
(Id. at p. 35.) She argues the record must contain direct evidence that is
“ ‘absolutely incompatible . . . or physically inconsistent’ ” with the alleged
false claim. (Ibid.; accord Viniegra, supra, 130 Cal.App.3d at p. 585 [quoting
Macken].) The People disagree and contend more contemporary cases utilize
10 Buttner summarily states this same standard applies to allegations of
false declaration of candidacy and grand theft by false pretenses. She cites
only one additional case, People v. Henning (2009) 173 Cal.App.4th 632,
which discusses the elements of theft by false pretenses, but does not address
the substantial evidence test or the requisite standard of proof. (See id. at
pp. 642−643.)
43
the typical substantial evidence standard of review. (See, e.g., People v.
Mayer (2003) 108 Cal.App.4th 403, 417; People v. Laws (1981) 120 Cal.App.3d
1022, 1028.) Neither is entirely correct. While the substantial evidence test
is generally applicable in evaluating the sufficiency of the evidence on appeal,
perjury is one instance in which the test is impacted by the Legislature’s
imposition of additional evidentiary burdens. (See People v. Cuevas (1995)
12 Cal.4th 252, 261 (Cuevas).) However, the additional burden is not as
imposing as Buttner suggests.
The appellant in Macken, Juanita Macken, was charged with perjury
based on an allegation she made during divorce proceedings, that her
husband, Dr. William Macken, and his attorney stole $2,800 in cash from her
after breaking into her home to serve her with divorce papers. (Macken,
supra, 32 Cal.App.2d at p. 33.) On appeal, Juanita asserted there was no
direct evidence proving the allegation was false. The court noted that perjury
cannot be proven based on the testimony of one witness alone and explained,
“this does not mean that it is necessary to produce someone who was present
at the defendant’s home on the evening of June 16, 1937, to supply direct
evidence that Dr. Macken did not steal the money. It is, however, necessary
to have positive testimony as to facts that are absolutely incompatible with
the innocence of the accused. [Citation.] Positive testimony of a state of facts
contrary to that sworn to by the accused or absolutely incompatible or
physically inconsistent with her evidence, may be sufficient.” (Id. at p. 35.)
The court then borrowed an analogy from another case: “ ‘As we have
already suggested, in order that the evidence may be sufficient, there must be
positive testimony to a contrary state of facts from that sworn to by the
defendant at the previous trial. For instance, to support the charge of perjury
as to the alleged false statement of defendant that he met the cow at the time
44
stated upon this particular public highway, it was necessary to produce the
positive testimony of one witness at least that such meeting did not take
place, as that the defendant was not at that time at that place, or that the
cow was not there.’ ” (Macken, supra, 32 Cal.App.2d at p. 36.) At trial,
Dr. Macken testified he did not steal the money, his attorney testified he was
in the room with him the entire time and did not see him steal the money,
and there was evidence Juanita gave the money to a friend for safe keeping a
couple of days later. The appellate court concluded that evidence was
sufficient to sustain the conviction. (Ibid.)
As the People point out, the charges in Macken were based on a prior
statute, Penal Code section 1103a. (Macken, supra, 32 Cal.App.2d at p. 35.)
When Macken was decided, section 1103a provided, “ ‘[p]erjury must be
proved by the testimony of two witnesses, or of one witness and corroborating
circumstances.’ (Historical Note, 50B West’s Ann. Pen. Code (1985 ed.)
§ 1103a, p. 342.)” (People v. Alcocer (1991) 230 Cal.App.3d 406, 412.) The
statute was amended in 1969, and, in 1989, it was repealed and replaced by
section 118, subdivision (b), which now provides: “No person shall be
convicted of perjury where proof of falsity rests solely upon contradiction by
testimony of a single person other than the defendant. Proof of falsity may be
established by direct or indirect evidence.” (Pen. Code, § 188, subd. (b); see
also Stats. 1989, ch. 897, § 13 [repealing and replacing section 1103a];
Alcocer, at p. 412.)
Thus, it remains the case, as the trial court instructed the jury here,
that perjury cannot be proven by one witness alone and, instead, requires
corroboration of the alleged falsity. (People v. Trotter (1999) 71 Cal.App.4th
436, 439; Pen. Code, § 118, subd. (b).) As our high court has explained, “The
Legislature has determined that because of the reliability questions posed by
45
certain categories of evidence, evidence in those categories by itself is
insufficient as a matter of law to support a conviction. For example, the
Legislature has required that . . . the testimony of a single witness in a
perjury case as to the falsity of the defendant’s perjurous statement (Pen.
Code, § 118, subd. (b)) must be corroborated before a conviction can be based
on them.” (Cuevas, supra, 12 Cal.4th at p. 261.) But, contrary to Buttner’s
assertion, the prosecution need not rely entirely on direct evidence to prove
the alleged falsity. Regardless, here, there was both direct and indirect
evidence tending to prove each of the alleged falsities.
1. Substantial Evidence Supports the Conviction on Count 1
In Count 1, the People alleged Buttner committed perjury by “stating
on her Candidate Intention Statement (Exhibit #9) for on July 25, 2017 that
her street address was 1620 Rockwood Avenue, Apt. 6, Calexico, CA 92231.”
Buttner does not dispute that she listed the Rockwood Apartment address on
the form, or that she signed the form under penalty of perjury. She also does
not dispute that she was living, at least part time, in an apartment in Santa
Clara as of July 2017. Instead, she asserts the Candidate Intention
Statement was not used to verify residency for the purpose of qualifying her
to run for a position on the ICOE board, and, thus, there was no evidence her
use of the Rockwood Apartment address as a “street address” was false, or
that the alleged falsity was material.
People v. Hedgecock (1990) 51 Cal.3d 395 (Hedgecock) is instructive.
There, the California Supreme Court considered the definition of materiality
in the context of perjury by declaration by a political candidate. (Id. at
p. 404.) The Court explained that traditional definitions of materiality which
focus on the impact the statement had on the outcome of the proceedings, are
not appropriate in the context of documentary political candidate filings. (Id.
46
at p. 405.) Rather, it concluded, “in a perjury prosecution based on a failure
to comply with the disclosure provisions of the [Political Reform] Act, an
omission or misstatement of fact is material if there is a substantial
likelihood that a reasonable person would consider it important in evaluating
(1) whether a candidate should be elected to, or retained in, public office, or
(2) whether a public official can perform the duties of office free from any bias
caused by concern for the financial interests of the official or the official’s
supporters.” (Id. at pp. 406−407.)
The underlying charges in Hedgecock concerned financial disclosures
required by the Political Reform Act, but the definition remains relevant
here, where Buttner’s residency in the precinct was a qualifying factor for her
candidacy and, thus, was important in evaluating whether she could run for
or retain her elected position.11 And, although there was evidence in support
of Buttner’s defense, there was also sufficient evidence to support the verdict,
had the jury been properly instructed.
There was testimony, from multiple witnesses establishing that
Buttner did need to reside within Trustee Area One to be eligible to run for
the position on the ICOE board. The Candidate Intention Statement
indicated, on its face, that it was a California Fair Political Practices
11 Buttner asserts the trial court erred by failing to instruct the jury as to
the meaning of “material.” We have already concluded the instructional error
regarding the definitions of residence and domicile requires reversal of all
four counts, but note that Hedgecock does appear to support Buttner’s
position regarding the instruction on materiality as well. (See Hedgecock,
supra, 51 Cal.3d at pp. 406−409 [“We merely hold that in a perjury
prosecution based on errors or omissions in disclosure statements required by
the [Political Reform] Act, materiality is an element of the offense, and must
therefore be determined by the jury”].) But, as we discuss, there was
evidence from which the jury could reasonably conclude Buttner’s use of the
Rockwood Apartment address was material.
47
Commission (FFPC) form, and Porter, the former registrar of voters, testified
it was one of several forms the FFPC required candidates to have on file.
Although she later specified the form was not used for the express purpose of
verifying residency, Porter confirmed that an individual would not be able to
run for the position if they listed an address that was outside the relevant
trustee area on either the Candidate Intention Statement, or the Declaration
of Candidacy. And she stated, “All these forms require a domicile.”
On the form, under the heading “Candidate Information,” Buttner
indicated she intended to run for a position as an ICOE Governing Board
Member for Trustee Area One, and, in the same section, she listed the
Rockwood Apartment address, which was in Trustee Area One, as her “street
address.” But, just one week later, Buttner listed the Granada Avenue
apartment as her “Current Street Address” on a Residency Declaration she
submitted to the Santa Clara school district.
Notably, Buttner submitted the Candidate Intention Statement on the
same day as her Declaration of Candidacy, which, as we discuss in more
detail post, did require her to list a “residence address” and to confirm that
she was residing in Trustee Area One. And, with just one exception in 2013,
in which she used the McKinley Street address, also located in Trustee Area
One, Buttner consistently used the Rockwood Apartment address on all the
documents relating to her candidacy. Thus, even if the Candidate Intention
Statement did not explicitly require a “residence address,” the jury could
have reasonably concluded that Buttner knew she needed to have a domicile
in Trustee Area One to be qualified to run for the position, and knowingly
and intentionally listed the Rockwood Apartment address on the Candidate
Intention Statement to ensure there would be no questions regarding her
residency. (See People v. Venegas (1998) 18 Cal.4th 47, 80 [“jurors are
48
permitted to rely on their own common sense and good judgment in
evaluating the weight of the evidence presented to them”].)
And, finally, although the jury was not properly instructed on the
definitions of residence and domicile, there was evidence from which they
could have reasonably determined that Buttner had established a new
domicile in Santa Clara by the time she submitted the Candidate Intention
Statement. Buttner does not seriously contend otherwise. She had signed
multiple leases and enrolled her children in school there and, although she
said she planned to return to Calexico at some point, she did not provide a
specific timeline, or any specific plans to do so. Accordingly, we conclude
there was sufficient evidence to support the conviction on Count 1.
2. Substantial Evidence Supports the Conviction on Count 4
In Count 4, the People alleged Buttner committed perjury by “stating
on her Driver’s License Application (Exhibit #37) that her residence address
was 1620 Rockwood Avenue, Apt. 6, Calexico, CA 92231.”
Again, Buttner does not dispute that she wrote the Rockwood
Apartment address on the form under “residence address” or that she signed
the form under penalty of perjury. Rather, as with Count 1, she asserts there
was insufficient evidence she “committed a knowing, material falsity.”
Relying on People v. Deluca (2014) 228 Cal.App.4th 1263 (Deluca), Buttner
contends a “residence” may be any address an individual frequents “without
regard for the number of days or nights actually spent there,” and, there was
insufficient evidence that her use of the Rockwood Apartment address was
false under such a broad definition. (Id. at p. 1267.)
The assertion fails for two reasons. First, the definition discussed in
Deluca is derived directly from Penal Code section 290.111, which applies to
transients required to register as sex offenders. (Deluca, supra,
49
228 Cal.App.4th at p. 1267.) Not surprisingly, the definition of “residence”
for that purpose is quite broad, and Buttner provides no authority indicating
the broad definition is applicable outside that context or, more specifically, in
the context of applying for a driver’s license. Second, the form itself, which
was entered into evidence at trial, requires a “residence address,” defined as
“where you live,” and distinguished from “mailing address,” “where you receive
mail.” (Capitalization omitted.) Again, although the jury was not properly
instructed on the definitions of residence and domicile, if it had had been, the
jurors reasonably could have determined that Buttner knew she did not live,
or maintain a residence or domicile, at the Rockwood Apartment when she
filled out the DL 44 form in November 2017.
B. False Declaration of Candidacy, Count 2
In Count 2, the People charged Buttner with filing a false declaration of
candidacy in violation of Elections Code section 18203.
Elections Code section 18203 makes it a crime for any person to file or
submit for filing a nomination paper or declaration of candidacy knowing that
it or any part of it has been made falsely. The statute “is designed to protect
the integrity and reliability of publicly filed election documents and has at its
core protections against fraud. It is designed to assure the complete and
accurate disclosure of information contained in nominating papers and
declarations of candidacy.” (People v. Guevara (2004) 121 cal.App.4th 17, 26.)
Election Code section 10602, subdivision (a) sets forth the requirements
for the declaration of candidacy forms and states it “shall be in substantially
the following form:
50
“ ‘I, ____________, do hereby declare myself as a candidate
for election to the governing board of ____________ District,
of the County of ____________; I am a registered voter; if
elected I will qualify and serve to the best of my ability; and
I request my name be placed on the official ballots of the
district, for the election to be held on the ____________ day
of ____________, 20________.
“______________________
“Residence address: ______________________’ ”
The Declaration of Candidacy that Buttner submitted appears below,
and includes the additional language, “I am a registered voter residing in the
above named trustee area, if any.” (Italics added.)
This additional language is consistent with Education Code section
1000, which requires each member of a county board of education to “be an
elector of the trustee area that the member represents.” (Ibid.)
51
As with the other forms, there is no dispute that Buttner listed the
Rockwood Apartment address as her “Residence Address” and signed the
form. Buttner acknowledges there was evidence she established residency in
Santa Clara, but asserts, under a proper interpretation of the law of
residency, the evidence was not incompatible with her also maintaining a
residence and domicile in Calexico. On this point, we agree. As we have
explained, had the jury been properly instructed, it reasonably could have
determined Buttner had two residences, one in Santa Clara and one in
Calexico. However, there was also substantial evidence to support the
opposite conclusion, that Buttner had established a new residence and
domicile in Santa Clara.
Intent to remain, for the purposes of establishing domicile, is not based
on words alone, and can, instead, be inferred from one’s actions. (Fenton v.
Board of Directors (1984) 156 Cal.App.3d 1107, 1117.) Here, there was
evidence Buttner had been living, at least part time, in Santa Clara for
nearly three years, since the summer of 2014, when she signed the
declaration. Three of her four children were in school there, and, although
they were initially living with Stampolis in his apartment, by 2017, Buttner
had signed several leases in Santa Clara as well. Ultimately, it was up to the
jury, as the trier of fact, to weigh the evidence, and the credibility of the
witnesses, to determine whether Buttner reasonably believed she remained
domiciled at the Rockwood Apartment despite living in Santa Clara for
several years.
C. Grand Theft by False Pretenses, Count 3
Finally, in Count 3, the People charged Buttner with grand theft by
false pretense, in violation of Penal Code section 484.
52
Penal Code section 484 provides, in relevant part, “[e]very person who
shall . . . knowingly and designedly, by any false or fraudulent representation
or pretense, defraud any other person of money, labor or real or personal
property . . . is guilty of theft.” “The crime of theft by false pretenses thus
consists of three elements: ‘ “(1) the defendant made a false pretense or
representation to the owner of property; (2) with the intent to defraud the
owner of that property; and (3) the owner transferred the property to the
defendant in reliance on the representation.” ’ ” (People v. Hartley (2016)
248 Cal.App.4th 620, 627 (Hartley).) The false pretense may be a
misrepresentation of an existing fact. (Ibid.) It “ ‘must have materially
influenced the owner to part with his property, but [it] need not be the sole
inducing cause.’ ” (People v. Whight (1995) 36 Cal.App.4th 1143, 1152
(Whight).)
Buttner asserts there was insufficient evidence she made a false
statement by using the Rockwood Apartment address on the Declaration of
Candidacy. That argument fails for the same reasons as we have already
explained with respect to Count 2. In addition, we note that the charge in
Count 3 was not limited to the Declaration of Candidacy form. Indeed,
during closing arguments, the prosecutor stated the theft charge was based
on “the actual false information that was on the documents [plural] that she
filed with the Registrar of Voters.” This would include, for example,
documents related to Buttner’s voter registration, which were also filed with
the Registrar of Voters.
In addition, Buttner asserts there was insufficient evidence that the
ICOE paid her stipend and benefits in reliance on the allegedly false
representation. She argues that Finnell knew about the allegations
regarding her residency but continued to sign her checks, that he did so
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because she continued to perform the job, and that there was never a
challenge to the election results or to her retaining her position on the board.
Regardless, though, there was also evidence that the Registrar of Voters
would not have placed Buttner’s name on the ballot as a candidate in the first
instance had she not put the Rockwood Apartment address on her voter
registration and candidacy forms.
Finnell testified that the ICOE continued to pay Buttner’s stipends and
benefits after the November 2017 election in reliance on the Registrar of
Voters verifying that she was qualified to run for re-election. And, in turn,
Porter testified that the Registrar of Voters would likely allow someone to
run for office if the person lied about their domicile on the requisite forms
because they relied on those forms and the person’s status as a registered
voter, and would not know if the person was lying. This testimony alone was
sufficient evidence from which the jury could conclude that Buttner’s alleged
misrepresentation about her residence address in Calexico materially
influenced the ICOE to continue to pay her. (See Whight, supra,
36 Cal.App.4th at p. 1152; see also Hartley, supra, 248 Cal.App.4th at p. 627
[false representation may be proved by the defendant’s words or conduct and
may be corroborated by the circumstances surrounding the transaction];
People v. Wooten (1996) 44 Cal.App.4th 1834 [loan officer’s reliance on
statements included in vouchers for disbursements sufficient to support
grand theft charges where officer testified he would not have approved
payment absent misrepresentations].)
Further, evidence that Finnell was investigating Buttner’s residency
did not preclude the jury from finding that the Registrar of Voters and ICOE
nevertheless relied on Buttner’s representations in paying her stipend and
benefits in the meantime. The extent to which the ICOE relied on Buttner’s
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alleged misrepresentations in paying her stipend and benefits was a fact
question for the jury to decide, and there was at least some credible evidence
from which they could conclude the ICOE did in fact rely on Buttner’s
representations. (See Whight, supra, 36 Cal.App.4th at p. 1154 [partial
investigation by the victim of false pretenses presents a fact question as to
reliance for the jury to decide].)
In sum, we conclude there was sufficient evidence to support the jury’s
verdict as to each of the asserted causes of action, had the jury been properly
instructed. Accordingly, the People are not barred from retrying Buttner if
they choose to do so. (See Wetle, supra, 43 Cal.App.5th at p. 388.)
III. We Need Not Address Buttner’s Remaining Assertions
Buttner raises additional contentions on appeal, including that she is
entitled to resentencing pursuant to recent changes to Penal Code section
654, enacted by Assembly Bill No. 518 (Stats. 2021, ch. 441, § 1), which afford
the trial courts greater discretion in sentencing acts punishable in different
ways under different laws, and that the trial court erred in ordering her to
pay substantial sums in restitution. The People concede the changes to Penal
Code section 654 are retroactive, and that, absent reversal, remand for
resentencing would be appropriate. Because we reverse the convictions based
on the instructional errors, we need not address these additional arguments.
If Buttner is convicted after retrial on remand, she shall be afforded a full
rehearing on sentencing and restitution and amended Penal Code section 654
will necessarily apply.
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DISPOSITION
The judgment of conviction is reversed, and the matter is remanded to
the trial court for further proceedings consistent with this opinion.
BUCHANAN, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O’ROURKE, J.
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