People v. Clotfelter CA1/2

Filed 2/4/21 P. v. Clotfelter CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,
A155134
v.
BRUCE LEE CLOTFELTER, (Napa County
Super. Ct. No. CR182578)
Defendant and Appellant.

Defendant was adjudicated a Sexually Violent Predator (SVP). That
status burdened defendant with numerous statutory disabilities that he
wished to evade by changing his name. His attempt to do so came to the
attention of state and federal authorities, and resulted in criminal charges. A
jury convicted him of one count of perjury (Pen. Code, § 1181); two counts of
identity theft—technically the unauthorized use of personal identifying
information of another person—(§ 530, subd. (a)); two counts of document
forgery with intent to defraud (§ 470, subd. (d)); and seven counts of grand
theft (§ 487, subd. (a)). The jury also found true allegations that defendant
had three prior sex-offense “strike” convictions. The trial court denied
defendant’s motion to strike one or more of the previous conviction findings

Statutory references are to the Penal Code unless otherwise
1

indicated.

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pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497
(Romero), and sentenced him to state prison for an aggregate term of 300
years to life.
On this timely appeal, defendant contends: (1) in accordance with In re
Williamson (1954) 43 Cal.2d 651, his perjury and grand theft convictions
must be invalidated because he could only be convicted under more specific
misdemeanor statutes; (2) his grand theft convictions are not supported by
substantial evidence; (3) only one grand theft conviction was proper because
there was only a single continuous offense; (4) there were two instances of
prejudicial instructional error; (5) the trial court abused its discretion in
denying his Romero motion; (6) section 654 precludes separate sentences for
forgery and identity theft; and (7) the aggregate sentence constitutes cruel
and unusual punishment under both the federal and the state constitutions.
With respect to the seven theft convictions, we conclude that defendant
could be convicted of no more than four counts, but all the convictions must
be reversed because the jury was not instructed on theft by false pretenses,
the particular form of the crime advanced at trial. The convictions for
perjury, identity theft, and forgery will be affirmed, but two of the sentences
must be stayed pursuant to section 654. Because we remand for possible
retrial of the theft charges, and resentencing, we do not address the cruel and
unusual punishment claim.
BACKGROUND
The evidence heard by the jury is virtually without dispute, making it
necessary only to summarize it here, viewed most favorably in support of the
verdicts (People v. Nelson (2011) 51 Cal.4th 198, 210), as follows:
In 1989 defendant was convicted of three counts of committing lewd or
lascivious acts upon a child under the age of 14 (§ 288, subd. (a)). In 1997, he

2
was adjudicated an SVP, and civilly committed to a state hospital for
treatment. He was released in June 2007 and settled in Napa County. As
required by law, he registered as a sex offender with local law enforcement.
Defendant also applied for SSI benefits from the Social Security
Administration (SSA), which was approved under his own name. He began
receiving monthly payments in February 2008 (but backdated to November of
2007). Defendant was repeatedly told that he must report all sources of
income; that benefits could terminate if his income rose above $2,000 a
month; and that there would be periodic “redetermination” interviews to
confirm his eligibility for continued benefits.
About this time, defendant decided to change his name. In January
2008, he petitioned the Napa Superior Court to change his name to “Andrew
Bruce Vail.” That petition was denied. In January of 2009, he filed another
petition, this time asking to change his legal name to the one he used for
writing, “Dalton Bruce Vail.” This petition was also denied.
Desperate to escape his criminal past, defendant then resolved to
simply rename himself: “I looked on the Internet and I just simply searched
. . . ways to change your name without the court. And there were a number
of publications . . . that you could do it by customary usage. That you simply
chose another name and begin using that name and then you can claim that
that is your name.”
Defendant already had a Consular Report of Birth Abroad (CRBA), the
equivalent of a birth certificate for an American citizen born in another
county (in defendant’s case, Mexico), issued by the U.S. Department of State.
Defendant wrote to that agency asking how to amend his CRBA to his new,
self-bestowed name. He was told he had to prove he had been using the new
name for at least five years.

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 Because defendant was told he had to have a passport before it could be
amended with a different name, defendant applied for a passport in his own
name. He received it in March 2010.
In June of that year, defendant submitted an application to the SSA to
have his benefits paid under the name of Dalton Bruce Vail. To an SSA
employee defendant “submitted a court-ordered name change document”
(defendant called it a “document that I had created that was entitled
Affidavit for Common Law Name Change”). Based on this bogus document,
SSA accepted defendant’s application.
The same thing occurred several months later, allowing defendant to
obtain an amended CRBA in the name of Dalton B. Vail from the Department
of State.
Among the “doctored” documents defendant admitted submitting was a
“contribution statement” from the Grace Church he attended in Napa. This
document, which was dated January 14, 2005, purported to show that in 2004
(while he was actually in Atascadero State Hospital) Dalton Vail made
specified donations to the church.
Another document created by defendant that was submitted with the
amended CRBA application was a UPS invoice dated May 15, 2005,
purporting to record that Dalton Vail of “Vail Enterprises” paid $11.05 to
ship an item from himself to himself in Napa from Orange County.
Defendant used the amended CRBA to apply for his California Driver’s
License to show the name Dalton Vail instead of Bruce Clotfelter. Months
later, using the name Dalton Vail, defendant applied for a different type of
operator’s license; on the application defendant answered “No” to the
question: “[H]ave you applied for a driver’s license or identification card in

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California or another state/county using a different name or number within
the past 10 years?”
In October of 2016, during an “annual sweep” of sex offenders’
residences, Napa police discovered in defendant’s house copies of checks
totaling approximately $30,000, a Mexican passport in the name of Bruce
Clotfelter, and a U.S. passport in the name of Bruce Vail. This discovery was
communicated to the SSA and the Department of State.2 Pursuant to a
warrant, Napa police seized defendant’s computer. On it were discovered
some of the altered documents defendant had submitted to the SSA and the
Department of State. The UPS invoice and the Grace Church documents
attracted particular attention because defendant was committed to a state
hospital as an SVP at the time they were purportedly dated.
In January 2017, the SSA discovered that defendant had failed to
report, as required, the existence of three bank accounts. That month SSA
Special Agent Donald Kayl and Napa Police Sergeant Amy Hunter
interviewed defendant when he came in for a scheduled meeting. It was a
very long meeting. After initially denying he had done anything improper,
defendant admitted the machinations to get the documents in the name of
Dalton Vail. He also admitted lying to the SSA about his income. Defendant
detailed how he had created the contribution from Grace Church and
admitted being “really good” at “doctoring” or “changing documents.”
Defendant acknowledged that this “doctoring” was illegal.
When this interview was concluded, defendant then went to the Napa
Police Department, where Hunter interviewed him for 90 minutes. The
interview was recorded on videotape, and the tape was played for the jury.

2 The State Department immediately revoked defendant’s passport.

5
According to Sergeant Hunter, defendant “admitted multiple times
throughout the interviews” to forging documents and taking money from the
SSA to which he was not entitled.
Defendant began his testimony by admitting his five felony convictions,
and the fact that he was an SVP who spent 10 years in state hospitals. He
admitted creating and altering documents to escape his criminal history. But
he did not change his name to “hide from the police” or avoid the sex offender
registration requirements. The name change was not intended to “confuse”
anyone.
Defendant did not think getting money from the SSA was wrong. He
did not consider it stealing because he was “entitled” to it. He used the
money to pay his living expenses, and the expenses of “Vail Enterprises,” his
handyman business. It was not uncommon for defendant to have more than
$2,000 in his bank account, but this was his parents’ money that he was
“managing.” He evaded the SSA limit by having his mother empty his bank
account at the start of each month and “give it to me so that won’t be a
problem.” He did not think his “Vail Enterprises” accounts mattered because
“those were not listed as my resources.” The $30,000 in checks were to
compensate him for a traffic accident; he didn’t report it to the SSA because
“it wasn’t income,” and thus was not taxable.
DISCUSSION
Defendant’s contentions range across various issues and various of the
charges found true by the jury. Some of his arguments concern only
sentencing. To simplify matters, we have grouped issues not involving
sentencing by the offense.

6
 The Theft Counts
As previously stated, defendant was convicted of seven counts of grand
theft. In the first, count 7, it was alleged that “On or about January through
December 2010,” defendant unlawfully took more than $950 dollars which
was “the property of the Social Security Administration.” The second, count
8, was to the same effect, except that it covered the period “On or about
January through December 2011.” The third, count 9, covered the period “On
or about January through December 2012.” Count 10 covered 2013, count 11
covered 2014, count 12 covered 2015, and count 13 the year 2016. In all
seven counts, the named victim was the Social Security Administration, and
the amount taken was more than $950. For each of these counts, defendant
was sentenced to a Three Strikes sentence of 25 years to life, each to be
served consecutively.
Given that the theft convictions amount for 175 years of defendant’s
aggregate sentence of 300 years to life, it is no surprise that they form the
primary focus of this appeal. He asserts the theft charges were mischarged,
misinstructed, unproven, and missentenced. We address these attacks in
turn.
The Theft Charges As Alleged
I
Citing In re Williamson, supra, 43 Cal.2d 651, defendant contends it
was improper to charge him with the felony of grand theft, and that he could
only properly be charged with the misdemeanor charge of violating Welfare
and Institutions Code section 11482.
The Attorney General urges defendant’s claim is forfeited because he is
raising it for the first time on appeal. We have rejected this argument before,
on the ground that the claim amounts to the challenge of an unauthorized

7
sentence, which may be raised at any time. (People v. Harper (2020) 44
Cal.App.5th 172, 185, fn. 12, following People v. Henry (2018) 28 Cal.App.5th
786.) We therefore turn to the merits.
Theft is defined as follows: “Every person who shall feloniously steal,
take, carry, lead, or drive sway the personal property of another, or who shall
fraudulently appropriate property which has been entrusted to him or her, or
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.” (§ 484, subd. (a).) “Grand theft is
theft committed . . . [¶] (a) When the money . . . or personal property taken is
of a value exceeding nine hundred fifty dollars . . . .” (§ 487, subd. (a).)
By contrast, Welfare and Institutions Code section 11482 provides in
pertinent part : “Any person other than a needy child, who willfully and
knowingly, with the intent to deceive, makes a false statement or
representation or knowingly fails to disclose a material fact to obtain aid, or
who, knowing he or she is not entitled thereto, attempts to obtain aid or to
continue to receive aid to which he or she is not entitled, or a larger amount
than that to which he or she is legally entitled, is guilty of a misdemeanor,
except as specified in Section 11482.5[3] and shall be subject to prosecution

3 “Any person who knowingly makes more than one application for aid
with the intent of establishing multiple entitlements for any person for the
same period, or who makes an application for aid by claiming a false identity
for any person or by making an application for a fictitious or nonexistent
person, is guilty of a felony and shall be subject to prosecution under the
provisions of Chapter 9 (commencing with Section 10980) of Part 2.” (Welf. &
Inst. Code, § 11482.5.)
There are additional statutes in a similar vein:
“Any person other than a needy child, who willfully and knowingly
receives or uses any part of an aid grant paid pursuant to this chapter for a

8
under the provisions of Chapter 9 (commencing with Section 10980) of Part
2.”
Our Supreme Court explained the operation of the Williamson rule as
follows:
“Under the Williamson rule, if a general statute includes the same
conduct as a special statute, the court infers that the Legislature intended
that conduct to be prosecuted exclusively under the special statute. In effect,
the special statute is interpreted as creating an exception to the general
statute for conduct that otherwise could be prosecuted under either statute.
[Citation.] ‘The rule is not one of constitutional or statutory mandate, but
serves as an aid to judicial interpretation when two statutes conflict.’ (People

purpose other than support of the needy children and the caretaker involved,
is guilty of a misdemeanor.” (Welf. & Inst. Code, § 11480.)
“Except as specified in Section 11483.5, whenever any person has, by
means of false statement or representation or by impersonation or other
fraudulent device, obtained aid for a child not in fact entitled thereto, the
person obtaining such aid shall be subject to prosecution under the provisions
of Chapter 9 (commencing with Section 10980) of Part 2. [¶] When the
allegation is limited to failure to report not more than two thousand dollars
($2,000) of income or resources, or the failure to report the presence of an
additional person or persons in the household, all actions necessary to secure
restitution shall be brought against persons in violation of Section 10980. The
action for restitution may be satisfied by sending a registered letter
requesting restitution to the last address at which the person was receiving
public assistance.” (Welf. & Inst. Code, § 11483.)
“Any person who obtains more than one aid payment for any person as
a result of knowingly making more than one application for aid with the
intent of establishing multiple entitlements for that person during the same
period, or who obtains aid for any person by making an application claiming a
false identity or by making an application for a fictitious or nonexistent
person, is guilty of a felony, and shall be subject to prosecution under the
provisions of Chapter 9 (commencing with Section 10980) of Part 2.” (Welf. &
Inst. Code, § 11483.5.)

9
v. Walker (2002) 29 Cal.4th 577, 586.) ‘The doctrine that a specific statute
precludes any prosecution under a general statute is a rule designed to
ascertain and carry out legislative intent. The fact that the Legislature has
enacted a specific statute covering much the same ground as a more general
law is a powerful indication that the Legislature intended the specific
provision alone to apply. Indeed, in most instances, an overlap of provisions
is determinative of the issue of legislative intent and “requires us to give
effect to the special provision alone in the face of the dual applicability of the
general provision . . . and the special provision . . . .” (People v. Gilbert
[(1969)] 1 Cal.3d [475,] 481].)’ (People v. Jenkins (1980) 28 Cal.3d 494, 505–
506 [(Jenkins)] . . . .)
“Absent some indication of legislative intent to the contrary, the
Williamson rule applies when (1) ‘each element of the general statute
corresponds to an element on the face of the special statute’ or (2) when ‘it
appears from the statutory context that a violation of the special statute will
necessarily or commonly result in a violation of the general statute.’ (People
v. Watson (1981) 30 Cal.3d 290, 295–296 (Watson).) In its clearest
application, the rule is triggered when a violation of a provision of the special
statute would inevitably constitute a violation of the general statute. In
Williamson, for example, the defendant was convicted under the general
conspiracy statute, Penal Code section 182, of conspiring to commit the crime
of contracting without a license in violation of section 7028 of the Business
and Professions Code. A violation of Penal Code section 182 was punishable
as either a misdemeanor or a felony. The defendant argued that his conduct
was punishable only under a special statute, Business and Professions Code
former section 7030 [citation], which made it a misdemeanor to ‘conspire[ ]
with another person to violate any of the provisions of this chapter.’ This

10
court agreed. We explained, ‘To conclude that the punishment for the
violation of section 7030 of the Business and Professions Code is stated in
section 182 of the Penal Code, which deals with conspiracies in general,
would be inconsistent with the designation of the particular conspiracy as a
misdemeanor.’ (Williamson, supra, 43 Cal.2d at p. 655; see also People v.
Gilbert, supra, 1 Cal.3d at p. 481, [prosecution for theft barred by special
statute prohibiting use of false statement to obtain welfare, because ‘any
conduct which violated [the welfare fraud statute] would also constitute a
violation of the theft provision of the Penal Code’].)
“ On the other hand, if the more general statute contains an element
that is not contained in the special statute and that element would not
commonly occur in the context of a violation of the special statute, we do not
assume that the Legislature intended to preclude prosecution under the
general statute. In such situations, because the general statute contemplates
more culpable conduct, it is reasonable to infer that the Legislature intended
to punish such conduct more severely. For example, in Watson, supra, 30
Cal.3d 290, the defendant was charged with second degree implied malice
murder based on a fatal automobile collision that occurred when the
defendant was intoxicated and had been driving at excessive speeds. On
appeal, the defendant argued that he could be convicted only of vehicular
manslaughter under Penal Code section 192 because that statute specifically
addressed killing while driving a vehicle, whereas the murder statute was a
more general statute that addressed a broad range of unlawful killings. We
rejected that argument because a murder conviction requires a finding of
malice, while vehicular manslaughter requires only gross negligence.
Because of the different mental state required, ‘a violation of the vehicular
manslaughter statute would not necessarily or commonly result in a violation

11
of the general murder statute. Thus, the Williamson rule is inapplicable.’
(Watson, supra, at p. 296.)
“However, that the general statute contains an element not within the
special statute does not necessarily mean that the Williamson rule does not
apply. ‘It is not correct to assume that the [Williamson] rule is inapplicable
whenever the general statute contains an element not found within the four
corners of the “special” law. Rather, the courts must consider the context in
which the statutes are placed. If it appears from the entire context that a
violation of the “special” statute will necessarily or commonly result in a
violation of the “general” statute, the Williamson rule may apply even though
the elements of the general statute are not mirrored on the face of the special
statute.’ (Jenkins, supra, 28 Cal.3d at p. 502.)
“For example, in People v. Ruster (1976) 16 Cal.3d 690 . . .), this court
compared the general statute prohibiting forgery with the special
misdemeanor statute prohibiting unemployment insurance fraud. In Ruster,
the defendant filed claims for unemployment benefits using a false name and
Social Security number. He was prosecuted under the general forgery
statute, Penal Code section 470. The defendant argued that his actions could
be prosecuted only under section 2101 of the Unemployment Insurance Code,
which made it a misdemeanor to ‘willfully make a false statement [or]
representation or knowingly fail to disclose a material fact . . . to obtain . . .
any benefit or payment’ for unemployment insurance. (Unemp. Ins.Code,
former § 2101, subd. (a).) The People argued that because one element of
forgery—the signing of the name of another—is not an element of
Unemployment Insurance Code section 2101, that statute ‘does not supplant
Penal Code section 470 when unemployment fraud involves forgery. (Ruster,
supra, at p. 695.) We rejected the People’s argument and applied the

12
Williamson rule to preclude the forgery prosecution. We stated that ‘the
Legislature unquestionably contemplated that the special statute might be
violated by means of forgery. Indeed, applying for aid under a false identity,
which entails signing eligibility questionnaires and pay certification cards
with a false name, is apparently one of the most common forms of
unemployment insurance fraud.’ (Ruster, supra, at p. 699.)” (People v.
Murphy (2011) 52 Cal.4th 81, 86–88.)
In short, the Williamson rule does not apply when “a felony statute
requires a more culpable mental state than a misdemeanor statute
proscribing the same behavior.” (Hudson v. Superior Court (2017) 7
Cal.App.5th 999, 1007.) “On the other hand, we do not assume the
Legislature intended to preclude prosecution under the general statute if it
‘contains an element that is not contained in the special statute, and that
element would not commonly occur in the context of a violation of the special
statute.’ ” (In re Charles G. (2017) 14 Cal.App.5th 945, 949, quoting Murphy;
accord, People v. Medelez (2016) 2 Cal.App.5th 659. 662.)
Defendant asserts that People v. Gilbert (1969) 1 Cal.3d 475 guarantees
victory, because there our Supreme Court held that the general theft statute
in the Penal Code must yield under the Williamson rule to Welfare and
Institutions Code section 11482. (See People v. Murphy, supra, 52 Cal.4th at
p. 90 [“in People v. Gilbert . . . we concluded that a special statute dealing
with welfare fraud precluded prosecution for theft under the general theft
statute”].) This may once have been true, but it no longer is.
The basis for the Williamson rule is a presumption of legislative intent.
And as is the case with most presumptions, it may be rebutted. This explains
caveats of “some indication of legislative intent to the contrary,” and “ ‘the
entire context’ of the statutes at issue.” (See People v. Murphy, supra, 52

13
Cal.4th at pp. 86, 91) Another exception was formulated in these terms:
People v. Gilbert “stand[s] for the proposition that when the Legislature has
enacted a specific statute addressing a specific matter, and has prescribed a
sanction therefor, the People may not prosecute under a general statute that
covers the same conduct, but which prescribes a more severe penalty, unless
a legislative intent to permit such alternative prosecution clearly appears.”
(Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1250, italics added,
original italics omitted.)
For the reasons that follow, we conclude that defendant’s Williamson
argument cannot be accepted.
Although Welfare and Institutions Code section 11482 obviously has a
smaller scope than section 484, nevertheless it is somewhat anomalous to
characterize it as a “specific” statute because it covers a multitude of
situations, specifically: (1) making a false statement or representation in an
attempt to obtain aid; (2) omitting a material fact in an attempt to obtain aid;
(3) making a false statement or representation in an attempt to continue to
receive aid; (4) omitting a material fact in an attempt to continue to obtain
aid; and (5) doing any of (1) through (4) in order to increase the amount of aid
beyond that to which the person “is legally entitled.” In one sense, the theft
statute may be the more specific in that it has an element that Welfare and
Institutions Code section 11482 does not: mere efforts or attempts are not
sufficient; there must be an actual or constructive transfer of possession.
Another reason Welfare and Institutions Code section 11482 does not
meet the usual Williamson formula is that it, like its adjacent statutes (see
fn. 3, ante), refers to another statute concerning prosecution, namely Welfare
and Institutions Code section 10980.

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 Welfare and Institutions Code section 10980 commences Chapter 9,
and is the sole statute in that chapter, which is entitled “Penalties.” (See
Stats. 1984, ch. 1448, § 2.) Subdivision (a) virtually restates Welfare and
Institutions Code section 11482, differing only in that possible misdemeanor
punishments are specified.4 Subdivision (b) does the same for Welfare and
Institutions Code section 11482.5 as a felony.5 Subdivision (c) specifies the
punishment for “any person [who] has, willfully and knowingly, with the
intent to deceive, by means of false statement or presentation, or by failing to
disclose a material fact, or by impersonation or other fraudulent device,
obtained or retained aid . . . for himself . . . not in fact entitled thereto”: if the
“total amount of the aid obtained or retained is [$950] or less,” it is punished

4 “Any person who, willfully and knowingly, with the intent to deceive,
makes a false statement or representation or knowingly fails to disclose a
material fact in order to obtain aid under the provisions of this division or
who, knowing he or she is not entitled thereto, attempts to obtain aid or to
continue to receive aid to which he or she is not entitled, or to receive a larger
amount than that to which he or she is legally entitled, is guilty of a
misdemeanor, punishable by imprisonment in a county jail for a period of not
more than six months, by a fine of not more than five hundred dollars ($500),
or by both imprisonment and fine.” (Welf. & Inst. Code, § 10980, subd. (a).)
5 “Any person who knowingly makes more than one application for aid
under the provisions of this division with the intent of establishing multiple
entitlements for any person for the same period or who makes an application
for that aid for a fictitious or nonexistent person or by claiming a false
identity for any person is guilty of a felony, punishable by imprisonment
pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of
16 months, two years, or three years, by a fine of not more than five thousand
dollars ($5,000), or by both that imprisonment and fine; or by imprisonment
in a county jail for a period of not more than one year, or by a fine of not more
than one thousand dollars ($1,000), or by both imprisonment and fine.”
(Welf. & Inst. Code, § 10980, subd. (b).)

15
as a misdemeanor; if more than $950, as a wobbler felony.6 Subdivisions (d)
and (e) address misuse in connection with “the federal Supplemental
Nutrition Assistance Program,” with violations of subdivision (d) being a
wobbler felony, and subdivision (e) being declared forgery. Subdivision (f)
and (g) are the same for misuse of CalFresh benefits. A violation of
subdivision (f) is “embezzlement of public funds,” while a violation of
subdivision (g) is to be punished in the same manner as spelled out in
subdivision (c). Subdivision (h)(1) enumerates enhanced punishment for
violations of subdivision (f) or (g) when “committed by means of an electronic
transfer of benefits,” depending upon the amount taken.
Clearly, Welfare and Institutions Code sections 11482 and 10980 are in
pari materia and must be considered together. (E.g., Lexin v. Superior Court
(2010) 47 Cal.4th 1050, 1091 [“Two ‘ “[s]tatutes are considered to be in pari
materia when they relate to the same person or thing, to the same class of
person[s or] things, and have the same purpose or object” ’ ”].)
At first reading, one might be tempted to conclude that Welfare and
Institutions Code section 11482 applies only to the application for aid or
benefits. But then there are the words “or to continue to receive aid to which
he or she is not entitled” (italics added). However, Welfare and Institutions
Code section 10980, subdivision (c), which applies to persons who “by means
of false statement or representation, . . . or by impersonation,” clearly is a

6 “If the total amount of the aid obtained or retained is more than nine
hundred fifty dollars ($950), by imprisonment pursuant to subdivision (h) of
Section 1170 of the Penal Code for a period of 16 months, two years, or three
years, by a fine of not more than five thousand dollars ($5,000), or by both
that imprisonment and fine; or by imprisonment in a county jail for a period
of not more than one year, by a fine of not more than one thousand dollars
($1,000), or by both imprisonment and fine.” (Welf. & Inst. Code, § 10980,
subd. (c)(2).)

16
description that fits defendant’s scheme. By contrast, as already mentioned,
the theft statute is not violated by a simple attempt. Moreover, section
10980, subdivision (c) incorporates the same figure of $950 to differentiate
misdemeanor from felony as is used for the general theft statute.
Thus, although it appears that section 484 cannot be violated without
also violating Welfare and Institutions Code section 11482, it is not clear that
the latter statute can truly be called the more specific. The preceding
discussion showed that Welfare and Institutions Code section 11482 is not a
stand-alone subject, but is part of a comprehensive statutory treatment of the
subject of welfare fraud, a scheme not yet enacted when People v. Gilbert was
decided more than 50 years ago. “ ‘[T]he entire context’ of the statutes at
issue” (People v. Murphy, supra, 52 Cal.4th at p. 91), discloses that that
scheme provides for graduated punishments from misdemeanor to felony,
parallel to those governing theft in the Penal Code, in the form of Welfare
and Institutions Code section 10980. As the Attorney General notes,
defendant’s conduct is equally subject to punishment as grand theft or as
theft of SSI benefits under the Welfare and Institutions Code as a felony.
Defendant’s contention that he should be allowed to convert the grand theft
charges into seven misdemeanors under the Welfare and Institutions code is
simply untenable. The Williamson rule is based on the presumed intent of
the Legislature, and there is nothing to suggest such a result was intended,
given that there is misdemeanor and felony treatment under Welfare and
Institutions Code section 10980 and the theft provisions in the Penal Code.
(See People v. Cockburn (2003) 109 Cal.App.4th 1151, 1159-1160 [Williamson
rule does not apply when “competing provisions are a wash” in severity of
penalty imposed]; People v. Lucero (2019) 41 Cal.App.5th 370, 408-410
[same]; see Mitchell v. Superior Court, supra, 49 Cal.3d at p. 1250.)

17
 II
Defendant contends, quoting the caption of his brief: “Because all of
appellant’s grand theft convictions were committed pursuant to a single
continuing scheme, those based upon acts committed prior to the Supreme
Court’s decision in People v. Whitmer (2014) 59 Cal.4th 733 [(Whitmer)] must
be combined into a single grand theft conviction.” We agree, in part.
Whitmer’s background was explained as follows:
“Defendant, the manager of a motorcycle dealership, arranged for the
fraudulent sales of vehicles to fictitious buyers. A jury convicted him of 20
counts of grand theft for 20 separate fraudulent sales. We must decide
whether defendant was properly convicted of a separate theft for each vehicle
fraudulently sold, or whether he could be convicted of only one count of grand
theft because all of the sales were part of a single scheme. Resolution of the
issue requires us to revisit language in People v. Bailey (1961) 55 Cal.2d 514
(Bailey), that some Courts of Appeal have interpreted as permitting only one
conviction of grand theft in circumstances like this.
“We conclude that past appellate courts have interpreted Bailey more
broadly than is warranted. We agree with the Court of Appeal in this case
that a defendant may be convicted of multiple counts of grand theft based on
separate and distinct acts of theft, even if committed pursuant to a single
overarching scheme. We disapprove of Court of Appeal decisions that are
inconsistent with this conclusion.
“However, we also conclude we cannot constitutionally apply this rule to
defendant. Under the law that has existed for decades, defendant could only
have been convicted of a single count of grand theft. We cannot apply the new
rule retroactively to him. Accordingly, and for this reason only, we reverse the
judgment of the Court of Appeal, which had affirmed the judgment of

18
conviction for the 20 counts of grand theft.” (Whitmer, supra, 59 Cal.4th at
pp. 734–735; italics added.)
Our Supreme Court in Whitmer went on to describe the Bailey case. “In
Bailey, the defendant fraudulently told a welfare office that a man she had
been living with had left her home. Later, and due to this misrepresentation,
she received a series of welfare payments that she was not entitled to receive.
She was convicted of one count of grand theft based on her receiving this
series of welfare payments. [Citation.] Each payment, individually, would
have constituted petty theft, but the payments totaled more than $200, which
at the time constituted grand theft. [Citation.] This court had to decide
whether the defendant ‘was guilty of grand theft or of a series of petty thefts
since it appears that she obtained a number of payments, each less than $200
but aggregating more than that sum.’ [Citation.] The trial court had
‘instructed the jury that if several acts of taking are done pursuant to an
initial design to obtain from the owner property having a value exceeding
$200, and if the value of the property so taken does exceed $200, there is one
crime of grand theft, but that if there is no such initial design, the taking of
any property having a value not exceeding $200 is petty theft.’ [Citation.]
“We found the defendant was properly convicted of grand theft.
‘Several recent cases involving theft by false pretenses have held that where
as part of a single plan a defendant makes false representations and receives
various sums from the victim the receipts may be cumulated to constitute but
one offense of grand theft. [Citations.] The test applied in these cases in
determining if there were separate offenses or one offense is whether the
evidence discloses one general intent or separate and distinct intents. The
same rule has been followed in larceny and embezzlement cases, and it has
been held that where a number of takings, each less than $200 but

19
aggregating more than that sum, are all motivated by one intention, one
general impulse, and one plan, the offense is grand theft. [Citations.]’
“Particularly relevant to the issue presented here, the Bailey court
added the following: ‘Whether a series of wrongful acts constitutes a single
offense or multiple offenses depends upon the facts of each case, and a
defendant may be properly convicted upon separate counts charging grand
theft from the same person if the evidence shows that the offenses are
separate and distinct and were not committed pursuant to one intention, one
general impulse, and one plan. [Citation.] In the following cases it was held
that each receipt of property obtained by false pretenses constituted a
separate offense for which the defendant could be separately charged and
convicted. [Citations.] Although none of these decisions discussed the rule
set forth above, it does not appear that the convictions would have been
affirmed had the evidence established that there was only one intention, one
general impulse, and one plan.’ [Citation.]” (Whitmer, supra, 59 Cal.4th at
pp. 736–737, italics added.)
After surveying the subsequent applications of Bailey in the Courts of
Appeal, the Supreme Court concluded: “[A] serial thief should not receive a
‘felony discount’ if the thefts are separate and distinct even if they are
similar. Accordingly, we conclude that a defendant may be convicted of
multiple counts of grand theft based on separate and distinct acts of theft,
even if committed pursuant to a single overarching scheme. Without
deciding whether any particular post-Bailey Court of Appeal opinion was
incorrect under its facts, we disapprove of any interpretation of Bailey that is
inconsistent with this conclusion.” (Whitmer, supra, 59 Cal.4th at pp. 740-
741.)

20
 Yet a thorny question remained. “Defendant argues that principles of
stare decisis prevent us from overruling Bailey. [Citation.] But we are merely
interpreting Bailey, not overruling it. To be sure, we are disapproving some
post-Bailey Court of Appeal decisions. But those cases misinterpreted Bailey
and overlooked the fact that it cited and distinguished, but did not overrule,
earlier cases, including some from this court, that support finding multiple
grand thefts in cases like this. We are merely reaffirming those earlier cases
. . . .” (Whitmer, supra, 59 Cal.4th at p. 741.)
“Defendant also contends we cannot constitutionally apply the rule we
adopt to him. Here we agree. ‘Courts violate constitutional due process
guarantees [citations] when they impose unexpected criminal penalties by
construing existing laws in a manner that the accused could not have
foreseen at the time of the alleged criminal conduct.’ [Citations.] The
Attorney General argues that Bailey does not prevent applying our
interpretation to defendant. We agree. The problem, however, is not Bailey
but the long, uninterrupted series of Court of Appeal cases . . . that have
consistently held that multiple acts of grand theft pursuant to a single scheme
cannot support more than one count of grand theft. [¶] . . . We do not suggest
that any time we resolve a conflict between Court of Appeal decisions in favor
of the rule less favorable to the defendant, we may not apply that resolution
to that defendant. But given the numerous, and uncontradicted, Court of
Appeal decisions over a long period of time that reached a conclusion contrary
to ours, we believe today’s holding is also an unforeseeable judicial
enlargement of criminal liability for multiple grand thefts. Accordingly, that
holding may not be applied to defendant. [¶] . . . The law as it had existed for
decades before defendant committed his crimes permitted conviction of only
one count of grand theft under those circumstances. Because defendant is

21
entitled to the benefit of that law he cannot be convicted of more than one
count of grand theft.” (Whitmer, supra, 59 Cal.4th at p. 742, italics added.)
Defendant thus contends that counts 7, 8, 9, and 10, covering the years
2010, 2011, 2012, and 2013, the years prior to 2014, when Whitmer was
decided, must be telescoped into a single felony.7 The Attorney General
struggles to preserve the convictions, arguing that “the Supreme Court [in
Whitmer] noted that Bailey discussed but did not overrule a series of cases
that concluded that multiple counts of grand theft are proper when thefts
resulted from separate and distinct transactions, even though part of a single
scheme.” “[A]ppellant made distinct, affirmative misrepresentations each
year about his income and resources. In light of his affirmative
misrepresentations, based on his past year’s earnings and resources and
projecting his future earnings based on those false statements, appellant was
correctly convicted of separate counts of grand theft.”
We can only accept the Attorney General’s reasoning in part. Whitmer
must be applied to the thefts that occurred prior to the date it was filed—July
24, 2014. The Attorney General points to a number of Supreme Court
decisions prior to Bailey (i.e., People v. Ashley (1954) 42 Cal.2d 246; People v.
Stanford (1940) 16 Cal.2d 247; People v. Rabe (1927) 202 Cal. 409) that were
mentioned in Whitmer as “support[ing] finding multiple counts of grand
theft” (Whitmer, supra, 59 Cal.4th at p. 737), but not specifically overruled.
True, Ashley and Rabe were cited in Bailey as supporting the proposition that

7 Logically, count 10, covering 2013, would appear to be within
defendant’s reasoning, because it too occurred prior to Whitmer in 2014. In
response to a focus letter we sent counsel in advance of oral argument,
defendant’s counsel confirmed at oral argument our assumption that the
omission of this count and year in his appellate briefing was a simple
oversight.

22
“In the following cases it was held that each receipt of property obtained by
false pretenses constituted a separate offense for which the defendant could
be separately charged and convicted. [Citations.] Although none of these
decisions discussed the rule set forth above[8] it does not appear that the
convictions would have been affirmed had the evidence established that there
was only one intention, one general impulse, and one plan.” (Bailey, supra,
55 Cal.2d at p. 519.)
However, what appears clear to the Attorney General after Whitmer
was precisely what was obscured by post-Bailey Court of Appeal decisions.
Indeed, the reason for deciding Whitmer was the Supreme Court’s concern
that Bailey was being improperly interpreted as a departure from the earlier
decisions, with the “ ‘one intention, one general impulse, and one plan’ ”
language being given undue importance. (See Whitmer, supra, 59 Cal.4th at
pp. 737, 740, [“We thus have cases distinguished but not overruled in Bailey,
. . . that support multiple convictions of grand theft in this case, post-Bailey
Court of Appeal cases relying on Bailey that would prohibit such multiple
convictions, and Bailey itself. We must decide what the proper rule should
be”].) The Whitmer court clarified the situation by specifying the correct
interpretation and application of Bailey, and disapproving those Court of
Appeal decisions which diverged from that interpretation. Indeed, as one
Court of Appeal noted, it was because “Whitmer marked such an abrupt

8 “Whether a series of wrongful acts constitutes a single offense or
multiple offenses depends upon the facts of each case, and a defendant may
be properly convicted upon separate counts charging grand theft from the
same person if the evidence shows that the offenses are separate and distinct
and were not committed pursuant to one intention, one general impulse, and
one plan. (People v. Stanford, [supra,] 16 Cal.2d [at pp.] 250-251.)” (Bailey,
supra, 55 Cal.2d at p. 519, italics added.)

23
departure from the current law that the court held it was not to be applied
retroactively.” (People v. Kirvin (2014) 231 Cal.App.4th 1507, 1518.)
By contrast, the Whitmer court made a point of emphasizing that each
of the amounts converted, embezzled, or obtained by false pretense in Rabe,
Ashley, Stanford, and the Court of Appeal decisions cited in Bailey, was in
excess of the amount constituting grand theft. (Whitmer, supra, 59 Cal.4th at
pp. 737-739.) But Bailey, as here, dealt with a series of petty thefts. (Bailey,
supra, 55 Cal.2d at p. 518 [“Although the uncontroverted evidence shows that
defendant was guilty of theft by false pretenses, the question is presented
whether she was guilty of grand theft or a series of petty thefts since it
appears that she obtained a number of payments, each less than $200 [the
amount then established for grand theft] but aggregating more than that
sum”].) Such is not the case here, and the decisions are thus clearly
distinguishable.
If a defendant’s wrongful acts are sufficiently “separate and distinct”
they may still be treated as separate offenses “even if committed pursuant to
a single overarching scheme.” (Whitmer, supra, 59 Cal.4th at p. 741.)9 The

9 “In Bailey, the defendant committed a single misrepresentation
and then received a series of welfare payments due to that
misrepresentation. Other than omitting to correcting the
misrepresentation and accepting the payments, the defendant
committed no separate and distinct fraudulent acts. . . . But in this case,
and, generally, in the earlier cases the Bailey court distinguished, the
defendant committed separate and distinct fraudulent acts. [¶] This
makes all the difference. When the Bailey court said that the earlier
cases upholding multiple convictions of grand theft would not have done
so ‘had the evidence established that there was only one intention, one
general impulse, and one plan’ [citation], it must have had this
distinction in mind. Bailey concerned a single fraudulent act followed
by a series of payments. The cases Bailey distinguished generally

24
Attorney General is clearly attempting to bring defendant within this
language. There is considerable force and logic to the Attorney General's
argument that defendant’s misrepresentations on his mandatory annual
income reports to the Social Security Administration qualify as “separate and
distinct fraudulent acts” for the years 2014, 2015, and 2016. But even as
separate and distinct offenses, they would still be a series of misdemeanors
because, as noted, the monthly amount defendant received from the Social
Security Administration never reached $950.10
As defense counsel clarified at oral argument, defendant sees no Bailey-
Whitmer problem with the counts for the years 2015 and 2016 (counts 12 and
13), but he believes “[t]he Bailey doctrine . . . should be applied in this case to
combine” counts 7, 8, 9, 10 and 11 (covering 2010, 2011, 2012, 2013 and 2014)
“into one count of grand theft.” But Whitmer was decided in July 2014.
Whether or not there is sufficient evidence to support a felony charge for the
remainder of 2014 is up to the charging authority; on this record we cannot
say. (See fn. 7, ante.)
On the other hand, defendant implicitly accepts that aggregating the
successive petty thefts by year is proper for the remaining counts. We agree.
Bailey itself involved such aggregation. (Accord, People v. Packard (1982)
131 Cal.App.3d 622, 625-626; Whitmer, supra, 59 Cal.4th at pp. 744-745
(conc. opn. of Liu, J.).) Once we are past the Whitmer period of leniency,

involved separate and distinct, although often similar, fraudulent acts.
Accordingly, those cases involved ‘separate and distinct’ [citation]
offenses warranting separate grand theft convictions.” (People v.
Whitmer, supra, 59 Cal.4th at p. 740.)
10 Whitmer involved false pretenses to obtain motorcycles. “The value
of the stolen vehicles ranged from $9,100 to over $20,000 per vehicle.”
(People v. Whitmer, supra, 59 Cal.4th at p. 735.)

25
defendant can be convicted of grand theft for the years 2015, and 2016, and
perhaps the remainder of 2014. (See People v. Nilsson (2015) 242
Cal.App.4th 1, 19 [“The Bailey doctrine, as applied by the intervening Court
of Appeal decisions, prohibited conviction on multiple counts of grand
theft . . . . While the scheme involved multiple acts, it supported only one
count of grand theft”].) Together with the one grand theft conviction
permitted prior to Whitmer, we conclude that defendant could be convicted of
no more than four counts of grand theft.
We now address whether the grand theft charges are also vulnerable by
reason of instructional error.
The Theft Instructions
The jury was instructed with CALCRIM Nos. 1800, 1801, and 1802 as
follows:
“The defendant is charged in Counts Seven through Thirteen with
grand theft as to the Social Security Administration in violation of Penal
Code section 487. Each count is for one year, 2010 through 2016.
“To prove that the defendant is guilty of this crime, the People must
prove that:
“1. The defendant took possession of property owned by someone else;
“2. The defendant took the property without the owner’s or owner’s
agent’s consent;
“3. When the defendant took the property he intended to deprive the
owner of it permanently, and;
“4. The defendant moved the property, even a small distance, and kept
it for any period of time, however brief.
“An agent is someone to whom the owner has given complete or partial
authority and control over the owner’s property.

26
 “If you conclude that the defendant committed a theft, you must decide
whether the crime was grand theft or petty theft.
“The defendant committed grand theft if the value of the property is
more than $950.
“The People have the burden of proving beyond a reasonable doubt that
the theft was grand theft rather than a lesser crime. If the People have not
met this burden, you must find the defendant not guilty of grand theft.
“If you conclude that the defendant committed more than one theft
within each charged theft offense, you must then decide if the defendant
committed multiple petty thefts or a single grand theft. To prove that the
defendant is guilty of a single grand theft, the People must prove that: One,
the defendant committed theft of property from the same owner or possessor
on more than one occasion; Two, the combined value of that property was
over $950; and Three, the defendant obtained the property as part of a single,
overall plan or objective.
“If you conclude that the People have failed to prove grand theft, any
. . . thefts you have found proven are petty thefts.”
Based on People v. Beaver (2010) 186 Cal.App.4th 107, defendant
contends prejudicial instructional error occurred with these instructions
because they dealt with theft by larceny when his alleged crimes were theft
by false pretense.
By way of background, common law recognized the offenses of (1) theft
by larceny, (2) theft by embezzlement, (3) theft by trick, and (4) theft by false
pretense. Section 484, which was enacted in 1872, consolidated these
offenses into the single crime of theft. “The purpose of the consolidation was
to remove the technicalities that existed in the pleading and proof of these
crimes at common law. Indictments and informations charging the crime of

27
‘theft’ can now simply allege an ‘unlawful taking.’ [Citations.] Juries need no
longer be concerned with the technical differences between the several types
of theft, and can return a general verdict of guilty if they find that an
‘unlawful taking’ has been proved. [Citations.] The elements of the several
types of theft included within section 484 have not been changed, however,
and a judgment of conviction of theft, based on a general verdict of guilty, can
be sustained only if the evidence discloses the elements of one of the
consolidated offenses.” (People v. Ashley, supra, 42 Cal.2d at p. 258.) “In
other words, the crime is called theft, but to prove its commission, the
evidence must establish that the property was stolen by larceny, false
pretenses, or embezzlement.” (People v. Gonzalez (2017) 2 Cal.5th 858, 865-
866.)
“The elements of theft by larceny are well settled: the offense is
committed by every person who (1) takes possession (2) of personal property
(3) owned or possessed by another, (4) by means of trespass and (5) with
intent to steal the property, and (6) carries the property away. [Citations.]
The act of taking personal property from the possession of another is always
a trespass unless the owner consents to the taking freely and unconditionally
or the taker has a legal right to take the property. [Citation.]” (People v.
Davis (1998) 19 Cal.4th 301, 305, fns. omitted.)
Our Supreme Court has explained that there are two differences
between theft by larceny and theft by false pretense. “[T]heft by false
pretenses, unlike larceny, has no requirement of asportation. The offense
requires only that ‘(1) the defendant made a false promise 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.’ [Citation.]” (People v. Williams (2013) 57

28
Cal.4th 776, 787, italics omitted.) The other difference is “larceny requires a
‘trespassory taking,’ which is a taking without the property owner’s consent
. . . . By contrast, theft by false pretenses involves the consensual transfer of
possession as well as title of property; therefore, it cannot be committed by
trespass.” (Id. at p. 788, italics omitted.)
There is no dispute that it was error to instruct the jury on theft by
larceny, and not instruct on theft by false pretense. The only question is
whether the error qualifies as prejudicial.
The Attorney General acknowledges “that since the evidence
demonstrated that the government, not appellant, moved the money from its
bank account into appellant’s possession, as a result of appellant’s deceit
rather than his physical taking, the evidence demonstrated a theft by false
pretenses, rather than larceny.” He argues that “any error from instructing
on larceny was harmless as the evidence of theft by false pretenses was
overwhelming and evidence of the elements distinct from those of larceny was
introduced and largely undisputed.” The Attorney General further
acknowledges, as he must, that because the misinstruction involved the
elements of the charged offense, reversal is required unless the error was
harmless beyond a reasonable doubt. (Chapman v. California (1967) 386
U.S. 18, 24; People v. Merritt (2017) 2 Cal.5th 819, 822, 831.)
There is no decisive ruling from our Supreme Court, and there is a split
of authority in the Courts of Appeal. The relevant cases are ably canvassed
in People v. Fenderson (2010) 188 Cal.App.4th 625 (Fenderson). To
summarize, if the incorrect type of theft submitted to the jury obligated the
prosecution to prove an element not required for the correct type, the error is
deemed harmless by some courts on the theory that the prosecution actually
proved more than it had to. Thus in Fenderson, the prosecution’s theory of

29
larceny was more burdensome than the correct theory of embezzlement (see
id. at pp. 640-641); in People v. North (1982) 131 Cal.App.3d 112, People v.
Counts (1995) 31 Cal.App.4th 785, and People v. Frederick (2006) 142
Cal.App.4th 400, it was theft by trick instead of false pretense; and in People
v. Traster (2003) 111 Cal.App.4th 1377, it was false pretense instead of theft
by trick.
The opposing line of cases originates with an opinion Justice Werdegar
wrote while a member of Division Three of this District. In People v. Curtin
(1994) 22 Cal.App.4th 528, the defendant argued there was insufficient
evidence to support his conviction of theft by trick. The court agreed: “While
a general verdict of guilt may be established on evidence establishing any one
of the consolidated theft offenses [citations], the offense shown by the evidence
must be one on which the jury was instructed and thus could have reached its
verdict. [Citation.] Thus, in this case, if the elements of theft by trick were
not proven, the conviction cannot be affirmed on the ground the evidence
showed defendant’s guilt of false pretenses, which has additional required
substantive elements, as well as a special corroboration requirement, upon
which the jury was not instructed . . . .” (Id. at p. 531, italics added.)
This thinking was taken up in People v. Beaver, supra, 186 Cal.App.4th
107. There, like here, the defendant was convicted of theft after the jury was
instructed on larceny, but not the correct theory of theft by false pretenses.
The Third District, following Curtin, concluded this constituted reversible
error: “Even if there was sufficient evidence in the record to support the
additional elements required for theft by false pretenses, the jury was not
instructed on the latter offense and therefore had no occasion to determine if
the additional elements had been proved beyond a reasonable doubt.” (Id. at
p. 125.) “In the present matter, we do not have merely a technical error. . . .

30
[E]ven if there was evidence in the record to support these elements, the jury
was never called upon to determine if they had been established beyond a
reasonable doubt. Under these circumstances, we cannot say the error did
not contribute to the guilty verdict.” (Ibid., italics added.)
Twenty-three years after she authored People v. Curtin, Justice
Werdegar was part of a unanimous court in People v. Vidana (2016) 1 Cal.5th
632 which made what seems to be a pointed caution.
The issue in Vidana was whether grand theft by larceny and
embezzlement were separate and distinct offenses. In the course of deciding
that a defendant could not be convicted of both crimes for the same course of
conduct, Justice Chin stated: “We have also held that a jury need not
unanimously decide what form of theft a defendant committed. In People v.
Nor Woods (1951) 37 Cal.2d 584, . . . the defendant appealed his grand theft
conviction. In an opinion by Justice Traynor, this court rejected his challenge
that the information was defective for not identifying the kind of grand theft
with which he was charged, concluding it was ‘not necessary for the
information to allege the particular type of theft involved, such as false
pretenses, embezzlement, or larceny by trick and device.’ [Citation.] We
further held ‘there was no error in failing to instruct the jury that they must
agree upon the method by which the theft was committed.’ [Citation.] We
reasoned, ‘defendant could be found guilty of theft by one means or another,
and since by the verdict the jury determined that he did fraudulently
appropriate the property, it is immaterial whether or not they agreed as to
the technical pigeonhole into which the theft fell.’ [Citation.]” (People v.
Vidana, supra, 1 Cal.5th at p. 643.)
Justice Chin then dropped this footnote: “Some Courts of Appeal have
extended Nor Wood[s] and appeared to hold that a theft conviction may be

31
upheld under any theory of theft even if the trial court did not instruct the
jury on that theory of theft. [Citing Fenderson and People v. North.] This
court has never so held. We need not address this issue here because the jury
in this case was instructed on the elements of both larceny and
embezzlement.” (People v. Vidana, supra, 1 Cal.5th at p. 643, fn. 9, italics
added.)
And there is this, again from Justice Werdegar, speaking for the
Supreme Court just four years ago: “ ‘Appellate courts are not permitted to
affirm convictions on any theory they please simply because the facts
necessary to support the theory were presented to the jury.’ (McCormick v.
United States (1991) 500 U.S. 257, 270; see Chiarella v. United States (1980)
445 U.S. 222, 236 [‘we cannot affirm a criminal conviction on the basis of a
theory not presented to the jury’].)” (People v. Pennington (2017) 3 Cal.5th
786, 800.)
With these Supreme Court cautions very much in mind, we think
People v. Curtin and People v. Beaver state the sounder view. It is one thing
to conduct a harmless error analysis when the jury is instructed on the
correct charge but an element is omitted. But it is, we believe, quite another
to misstate the fundamental identity and nature of the charge. Particularly
in light of the line of decisions from the United States Supreme Court
declaring an accused’s Sixth Amendment right to have a jury decide the
existence at trial of any factual issue of any penal consequence (Apprendi v.
New Jersey (2000) 530 U.S. 466; Ring v. Arizona (2002) 536 U.S. 584; United
States v. Booker (2005) 543 U.S. 220; Cunningham v. California (2007) 549
U.S. 270), we are more than a little hesitant to hazard a guess at how the
jury would have answered a question it was never asked.

32
 Substantial Evidence
For defendant, “the evidence is legally insufficient to support [his]
grand theft convictions because there is no evidence of asportation nor did
appellant commit a trespassory taking.” There is no point to examining the
merits of whether there is substantial evidence to support a theory of theft
that all agree is inapplicable. Without a properly instructed jury, we cannot
undertake a substantial evidence analysis. (See People v. Pennington, supra,
3 Cal.5th at p. 800.) Further, we note that defendant does not claim in this
appeal that the evidence is insufficient to support conviction on the correct
theory of theft by false pretense.
The Perjury Conviction
Defendant’s second Williamson argument is the sole non-sentencing
argument directed against his perjury conviction. He contends that he
should have been charged with violating only Vehicle Code section 20, a
misdemeanor. We do not agree.11
The perjury statute under which defendant was convicted provides:
“Every person who, having taken an oath that he or she will testify, declare,
depose, or certify truly before any competent tribunal, officer, or person, in
any of the cases in which the oath may by law of the State of California be
administered, willfully and contrary to the oath, states as true any material
matter which he or she knows to be false, and every person who testifies,
declares, deposes, or certifies under penalty of perjury in any of the cases in
which the testimony, declarations, depositions, or certification is permitted
by law of the State of California under penalty of perjury and willfully states

11This is another claim that defendant failed to make in the trial court
by motion to dismiss, demurrer, or objection. For the same reasons we
address defendant’s other Williamson claim, we will address this one.

33
as true any material matter which he or she knows to be false, is guilty of
perjury.” (§ 118, subd. (a).)
Vehicle Code section 20 provides: “It is unlawful to use a false or
fictitious name, or to knowingly make any false statement or knowingly
conceal any material fact in any document filed with the Department of
Motor Vehicles or the Department of the California Highway Patrol.”
The perjury charge was alleged to be that defendant on “an application
for a California Driver’s License, did state as true a material matter which he
. . . knew to be false, to wit: answered ‘No’ to the question of ‘Have you
applied for a Driver License or Identification Card in California or another
state/county using a different name or number within the past ten (10)
years?’ ” License applications are statutorily required to be verified. (Veh.
Code, §§ 12800, 2802.) In 1974 a Court of Appeal rejected the argument
defendant now makes:
“A false statement in any document filed with the Department of Motor
Vehicles may violate Vehicle Code section 20, whereas only a false statement
required . . . to be made under oath [citation] or ‘under penalty of perjury’
may violate Penal Code section 118. [¶] Therefore, Penal Code section 118
does not ‘ “include the same matter as the special act, and thus conflict with
it” ’ under In re Williamson . . . . Violation of Penal Code section 118 requires
an additional element not necessary to violation of Vehicle Code section 20
and therefore Williamson does not apply.” (People v. Barrowclough (1974) 39
Cal.App.3d 50, 55 (Barrowclough).) Five years later, Division Three of this
District went so far as to characterize a renewal of the argument as
“frivolous.” (People v. Jensen (1979) 94 Cal.App.3d 451, 454 (Jensen).)
Defendant characterizes Barrowclough as “unsound.” Our Supreme
Court did subsequently conclude that the Barrowclough elements

34
formulation was too narrow, when it added the alternate standard—“when ‘it
appears from the statutory context that a violation of the special statute will
necessarily or commonly result in a violation of the general statute.’ ” (People
v. Murphy, supra, 52 Cal.4th at p. 86.) Nevertheless, Barrowclough and
Jensen are still cited as sound. (People v. Molina (1992) 5 Cal.App.4th 221,
225-228; cf. Aslam v. Superior Court (2019) 41 Cal.App.5th 1029 [acquittal of
violating § 115 [offering false or forged instrument for filing] does not
preclude prosecution for violating Veh. Code, § 20].)
Without question, the Barrowclough court’s conclusion about the
elements test is still sound, even if no longer exclusive. Nor does the
alternate test aid defendant, for a violation of Vehicle Code section 20 will not
necessarily or commonly result in a violation of section 118 because the oath
or verification requirement, a “more culpable mental state” (Hudson v.
Superior Court, supra, 7 Cal.App.5th at p. 1007), is still obligatory for
conviction of the latter statute.
Instructional Error
Defendant presses another instance of claimed instructional error, this
one aimed at CALCRIM No. 361, which told the jury: “If the defendant failed
in his testimony to explain or deny evidence against him, and if he could
reasonably be expected to have done so based on what he knew, you may
consider his failure to explain or deny in evaluating that evidence. Any such
failure is not enough by itself to prove guilt. The People must still prove the
defendant guilty beyond a reasonable doubt. If the defendant failed to
explain or deny, it is up to you to decide the meaning and importance of that
failure.”
According to our Supreme Court, “the instruction applies only when a
defendant completely fails to explain or deny incriminating evidence, or

35
claims to lack knowledge and it appears from the evidence that the defendant
could reasonably be expected to have that knowledge. The instruction
acknowledges to the jury the ‘reasonable inferences that may flow from
silence’ when the defendant ‘fail[s] to explain or deny evidence against him’
and ‘the facts are peculiarly within his knowledge.’ [Citation.] As to
incriminating evidence that a testifying defendant denies or explains, there is
no silence from which an inference ‘may flow.’ [Citation.] Even if the
defendant’s testimony conflicts with other evidence or may be characterized
as improbable, incredible, unbelievable, or bizarre, it is not, as the People
assert, ‘the functional equivalent of no explanation at all.’ On the other hand,
those circumstances do suggest that the defendant may have ‘deliberately
lied about something significant,’ in which case a court may, as the court did
here, instruct jurors to ‘consider not believing anything that witness says.’
(CALCRIM No. 226.) Indeed, . . . our cases hold that this instruction . . . is
warranted under the very circumstances the People claim warrant
instruction on a failure to explain or deny, i.e., when there is a ‘material
conflict in witnesses’ testimony’ [citation], when there are ‘inconsistencies
within the testimony of a single witness’ [citation], and when a witness’s
‘efforts to explain away undisputed circumstances are inherently implausible’
[citation]. [Citations.] These circumstances implicate a testifying
defendant’s credibility as a witness, and thus are properly addressed by an
instruction designed to apply ‘neutral standards of credibility’ to testifying
defendants. [Citation.] By contrast, the focus of CALCRIM No. 361, as its
language indicates, is not on the defendant’s credibility as a witness, but on
the role of a testifying defendant’s failure to explain or deny incriminating
evidence in how jurors ‘evaluat[e] that evidence,’ i.e., the evidence the
defendant has failed to explain or deny. In other words, as we have stated, a

36
testifying defendant’s failure to explain or deny incriminating evidence—‘i.e.,
[a] defendant’s silence’—cannot ‘be regarded as a confession’ and ‘does not
create a presumption or warrant an inference of guilt, but should be
considered only in relation to evidence that he fails to explain or deny.’ ”
(People v. Cortez (2016) 63 Cal.4th 101, 117-118, fn. omitted.)
In claiming use of this instruction was prejudicial error, defendant
argues he “did not fail to explain or deny any evidence against him which he
could reasonably have been expected to deny or explain because of facts
within his knowledge. . . . [He] neither completely failed to explain or deny
incriminating evidence against him, nor did he claim to lack knowledge of
relevant facts or circumstances that he could reasonably have been expected
to know.” He goes on to state: “This was a close case that could easily have
turned out differently if the erroneous instruction had not been given. For
the reasons explained in Argument I, supra, the evidence supporting the
grand theft charges was lacking . . . . Moreover, appellant testified he was not
trying to scam SSA and that it was never his intention to steal from them.
The perjury charge was also weak. Appellant had absolutely nothing to gain
(nor did the prosecutor ever suggest appellant had anything to gain) from
‘lying’ about whether he had applied for a driver’s license or identification
card under a different name in the past ten years, while at the DMV applying
to add a motorcycle to his license. At the time of the alleged false statement,
appellant had already successfully changed the name on his driver’s license
from Clotfelter to Vail. The only plausible reason why appellant checked ‘no’
rather than ‘yes’ is because he thought he was answering the not-so-clear
question correctly, as he explained in his testimony.”
This extremely abbreviated summary of the evidence against him is not
helpful in demonstrating either error or prejudice. In contrast, the Attorney

37
General devotes the better part of four pages in his brief detailing evidence
which would justify the instruction. “ ‘Instead of a fair and sincere effort to
show the trial court was wrong, appellant’s brief is a mere challenge to
respondents to prove that the court was right. And it is an attempt to place
upon the court the burden of discovering without assistance from appellant
any weakness in the arguments of the respondent. An appellant is not
permitted to evade or shift his responsibility in this manner.’ ” (Paterno v.
State of California (1999) 74 Cal.App.4th 68, 102.) This merely enforces the
most fundamental principles of appellate review—that the judgment or order
of a lower court is presumed correct, that error is never assumed, but must be
proven by the appellant. (E.g., People v. Giordano (2007) 42 Cal.4th 644, 666;
People v. Wiley (1995) 9 Cal.4th 580, 592, fn. 7; People v. Douglass (1893) 100
Cal. 1, 4.)
The record does not establish what particular testimony prompted the
prosecution to request this instruction.12 The record does establish that the
point covered by the instruction did not feature in the prosecutor’s closing
arguments, nor was the instruction specifically referenced. In the absence of
a particularized demonstration of how an inference could have been
improperly drawn against him under CALCRIM No. 361, defendant has
simply failed to overcome the presumption of correctness. Moreover, an effort
to demonstrate prejudicial error would almost certainly fall short.
CALCRIM No. 361 only authorizes the jury to draw a permissive
inference, the strength of which is left to the jury’s discretion. The jury is

12 Appellant concedes that his trial counsel did not object to the
instruction. The Attorney General claims that it is forfeited by counsel’s
failure to assert an objection. We assume, without deciding, that the issue is
properly raised under section 1259, and address the merits.

38
expressly cautioned that this inference “is not enough by itself to prove guilt,”
and does not lighten the prosecution’s burden to prove guilt beyond a
reasonable doubt. This was not a case where there was a clear conflict
between eyewitnesses. On the contrary, much—if not most—of the
prosecution’s case was not challenged by the defense, and there was
abundant corroborating evidence. Eighteen years ago, addressing the
CALJIC predecessor of CALCRIM No. 361, a Court of Appeal stated that “we
have not found a single case in which an appellate court found the error to be
reversible,” and that reviewing courts “have routinely found that the
improper giving of [the instruction] constitutes harmless error.” (People v.
Lamer (2003) 110 Cal.App.4th 1463, 1472.) That state of affairs has
continued. Indeed, defendant is unable to cite to a single reported decision
where reversible error was found.
Sentencing Issues
Romero Motion
It was alleged in the information, and found true by the jury, that
defendant had three 1989 convictions for committing a lewd or lascivious act
upon a child under the age of 14. Prior to sentencing, defendant filed a
Romero motion asking the trial court to “dismiss the prior convictions alleged
pursuant to sections 667 (e)(2)(C)(iv)(1) and 667(b)-(i) in the interests of
justice.”
The trial court denied defendant’s Romero motion as follows: “I am
declining the defense invitation for the court to exercise its discretion to
dismiss the prior conviction allegations. I really see no reason why the court
would find that it is in the furtherance of justice to dismiss those strike
allegations or the previous convictions for the reasons described by the

39
prosecution today.[13] Mr. Clotfelter has been continuously committing crimes
when he’s been out in the community after he was released from prison and

13 The prosecutor had stated in opposition to the motion, “Mr.
Clotfelter has engaged in criminal activity whenever he’s been out of custody.
His crimes from the eighties are so long ago [a point made by the defendant
for granting relief] because he’s been locked up either in a prison or the state
hospital for much of his life which has prevented him from committing
crimes. We know when he’s out that’s what he does.
“In 1995 he was out pretending to be this military officer. Went around
to over 20 schools pretending to be a military officer signing Navy posters.
Who can we imagine his target audience is, it’s young boys. And apparently
he told one of his doctors that he was on his way to molest another child but
was stopped somehow.
“Clearly, though, even without that his actions there in light of his
previous history show exactly what he was doing. He was aiming to befriend.
He was aiming to be a leader. He was aiming to gain these boys’ respect and
admiration so they would look up to him. He would be his hero. His Top Gun
hero. And fortunately he was caught, but that’s what he was doing in the
brief period that he was out on parole.
“Then he gets declared a sexually violent predator. He’s eventually
released, and what does he do? He starts trying to deceive the community so
people won’t know he’s a sex offender. And his illegal acts and detention
start within a very short time as well. Whenever he’s out of custody or out in
an unlocked setting he’s out there committing deception and committing
crimes along with that deception. His first deception was deceiving the
families and the young boys back in the eighties. Then he gets out . . . and
he’s deceiving with the [N]avy story as well as the officers and children at a
large number of schools. Then he gets out again and he’s trying to deceive
Judge Tisher as well as trying to deceive all the Social Security, and the
State Department, and D.M.V.
“He’s committing deception from the moment he’s out. So there has
been no break in crime. His only breaks in crime have been when he’s
incapacitated from committing it. I don’t think there is any reason to strike
the strikes in this case particularly given his reason for doing that. His
reason for doing this was so the community wouldn’t know who he was. And
his reason for stealing from Social Security is he blamed the state for labeling
him as a sex offender. That’s just inconceivable. I don’t see any reason to

40
the state hospital. Ye[s], it’s true they weren’t strike convictions, but he has
shown just a continuous history of criminality since he committed these
strike offenses. And I see no reason why it would be in the furtherance of
justice to strike the strikes.”
Although his motion was apparently directed at all three of his prior
strike convictions, defendant now contends “the trial court abused its
discretion when it refused to dismiss at least two of appellant’s 29-year-old
prior strike convictions.”
In ruling on a Romero motion, the trial court “must consider whether,
in light of the nature and circumstances of his present felonies and prior
serious and/or violent felony convictions, and the particulars of his
background, character, and prospects, the defendant may be deemed outside
the [spirit of the three strikes law] scheme[ ] . . . in whole or in part, and
hence should be treated as though he had not previously been convicted of
one or more serious and/or violent felonies.” (People v. Williams (1998) 17
Cal.4th 148, 161.) The three strikes law “establishes a sentencing
requirement to be applied in every case where the defendant has at least one
qualifying strike unless the sentencing court ‘conclud[es] that an exception to
the scheme should be made . . . .’ ” (People v. Strong (2001) 87 Cal.App.4th
328, 337-338.) Consequently, there must be something exceptional about the
prior offenses, the current offense, or the defendant’s background, character,
and prospects, to justify striking a prior serious conviction.
Our Supreme Court has held that “a court’s failure to dismiss or strike
a prior conviction allegation is subject to review under the deferential abuse

strike the strikes, and I would ask that the court not strike them, and impose
. . . sentence accordingly.”

41
of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374.) The
court went on to explain just what this means in application:
“In reviewing for abuse of discretion, we are guided by two fundamental
precepts. First, ‘ “[t]he burden is on the party attacking the sentence to
clearly show that the sentencing decision was irrational or arbitrary.
[Citation.] In the absence of such a showing, the trial court is presumed to
have acted to achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set aside on
review.” ’ [Citations.] Second, a ‘ “decision will not be reversed merely
because reasonable people might disagree. ‘An appellate tribunal is neither
authorized nor warranted in substituting its judgment for the judgment of
the trial judge.’ ” ’ [Citations.] Taken together, these precepts establish that
a trial court does not abuse its discretion unless its decision is so irrational or
arbitrary that no reasonable person could agree with it.” (People v. Carmony,
supra, 33 Cal.4th at pp. 376-377.) “ ‘[I]t is not enough to show that
reasonable people might disagree about whether to strike one or more’ prior
conviction allegations. [Citation.] Where the record is silent [citation], or
‘[w]here the record demonstrates that the trial court balanced the relevant
facts and reached an impartial decision in conformity with the spirit of the
law, we shall affirm the trial court's ruling even if we might have ruled
differently in the first instance’ [citation].” (Id. at p. 378.)
According to these criteria, we conclude there was no abuse of
discretion. As for “the particulars of his background, character, and
prospects” (People v. Williams, supra, 17 Cal.4th at p. 161), none of these
favors defendant. Defendant was originally charged with five counts of child
molestation; he admitted three, and the remaining counts were dismissed.
Paroled after five years, he violated that parole by impersonating a Navy

42
fighter pilot, which also saw him convicted for a federal crime and
incarcerated in a federal facility. In 2015, he was convicted of failure to keep
current his sex offender information (§ 290.012), another felony. Defendant
makes no genuine effort to establish that the trial court was incorrect in
concluding he has displayed “a continuous history of criminality” since
committing the strike offenses.
Instead, his argument anticipates his contention that the aggregate
sentence is cruel and unusual. Thus, his “history of criminality is not enough
to bring the draconian punishment he received within the bounds of reason.”
He dismisses his federal conviction “of four counts of false [im]personation
[of] a military officer” “shenanigans,” without considering that he used the
impersonation to get close to children, or that it was an early demonstration
of his attempts to deceive.
Finally, defendant characterizes his strike convictions as “remote.” A
remote prior may be stricken if the record establishes “a crime-free cleansing
period of rehabilitation after a defendant has had the opportunity to reflect
upon the error of his . . . ways.” (People v. Humphrey (1997) 58 Cal.App.4th
809, 813.) However, the trial court accepted the prosecutor’s litany of events
in defendant’s history as showing there has “been no break in crime” except
when he was incarcerated or in a state hospital, thus reducing, if not
eliminating, any ameliorative impact. (See People v. Gaston (1999) 74
Cal.App.4th 310, 321 [“we cannot conclude that appellant led a crime-free life
during the period between his . . . strike priors and his current crimes, a
factor which would give significance to the remoteness in time of those
strikes,” citing Humphrey].)
Defendant has failed to identify, and to prove beyond doubt, precisely
what is exceptional about the prior offenses, the current offenses, or his

43
background, character, and prospects, that justify striking two prior serious
convictions. The total sentence is indeed notable, but defendant has not
persuaded us that the only way to reduce was to grant his Romero motion.
He has failed to establish the trial court’s denial of that motion was “so
irrational or arbitrary that no reasonable person could agree with it.” (People
v. Carmony, supra, 33 Cal.4th at p. 374-377.)
Section 654
“An act or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” (§ 654, subd. (a).)
Defendant contends application of this provision requires that the 25-years-
to-life sentences for two of the non-theft offenses be stayed.
The particulars are as follows: In count 3 it was alleged that defendant
“did willfully and unlawfully obtain personal identifying information of
UNITED PARCEL SERVICES (UPS) and used that information for an
unlawful purpose and to obtain, and attempt to obtain credit, goods, services,
real property, and medical information without the consent of UPS.” Count 4
set forth similar language, with the named victim being Grace Church of
Napa Valley.
The operative language of count 5 was that “the crime of FORGERY OF
A DOCUMENT . . . was committed by [defendant], who did unlawfully, with
intent to defraud, falsely make, alter, forge, and counterfeit a UPS RECEIPT,
and did utter publish, pass, and attempt to pass the same as true and
genuine, knowing the same to be false, altered, forged, and counterfeited,
with the intent to prejudice, damage, and defraud THE U.S. DEPARTMENT
OF STATE.” In count 6 it was alleged that defendant also forged “a GRACE

44
CHURCH CONTRIBUTIONS STATEMENT,” also “with the intent to
prejudice, damage, and defraud THE U.S. DEPARTMENT OF STATE.”
Defendant presents various theories of how application of section 654
requires reduction of his total sentence.
First, he submits that “The trial court should have applied section 654
to stay execution of sentence on either count 3 or count 5, the two offenses
related to UPS.” His objective in both instances “was to deceive the
Department of State into believing he had actually changed his name . . . so
that he could obtain a new consular record of birth abroad (CRBA), and
ultimately a new passport.” Further, “[h]is unlawful use of UPS’s personal
identifying information was the means by which he unlawfully obtained the
new CRBA and passport from the Department of State. There would be little
point in forging the invoice without actually sending it to the Department of
State, and sending the fake UPS invoice to the Department of State would
have been impossible without the forgery.”
Next, defendant makes the same contention as to “either Count 4 or
Count 6, the two offenses relating to Grace Church.”
Third and last, defendant argues “The trial court should have applied
section 654 to stay execution of sentence on either count 3 or count 4, the two
identity theft convictions.” He reasons that his criminal conduct in both
counts “consisted of discrete physical acts, creating the fake UPS receipt,
creating the fake Grace Church contribution statement, and sending them
both to the Department of State as part of his application for an amended
CRBA . . . .”
Defendant does not contend that what he did does not satisfy the
statutory definitions of identity theft and forgery. He does not contend that
the jury’s verdicts on the four counts does not have the support of substantial

45
evidence. In short, he does not contend his conviction of these counts are
invalid or improper. He simply argues that he should not have been
sentenced to a consecutive term of 25 years to life for each of the four
offenses. In this, we conclude, he is correct.
Although issues of section 654’s application are not universal, but are
fact-specific to each case (e.g., In re Adams (1975) 14 Cal.3d 629, 633; People
v. Beamon (1973) 8 Cal.3d 625, 636), “[w]hen those facts are undisputed—as
they are here—the application of section 654 raises a question of law we
review de novo.” (People v. Corpening (2016) 2 Cal.5th 307, 312.)
The two documents were created and submitted for the same purpose—
to persuade the Department of State to issue an official document. Thus,
there was an indivisible course of conduct with a single criminal objective
(see Neal v. State of California (1960) 55 Cal.2d 11, 19) and the identity
thefts were merely the means to the ends of perpetrating the forgeries (id. at
p. 20; accord, People v. McKinzie (2012) 54 Cal.4th 1302, 1368; People v.
Harrison (1989) 48 Cal.3d 321, 335).
Upon remand, the trial court is directed to stay the sentences on counts
3 and 4 pursuant to section 654.
Cruel and/or Unusual Punishment
Finally, defendant contends his aggregate term of 300 years to life
violates the state and federal constitutional prohibitions against cruel and
unusual punishment. The issue could be deemed forfeited by failing to raise
it in the trial court. (E.g., People v. Kelley (1997) 52 Cal.App.4th 568, 583;
People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) Although ordinarily we could
consider the merits of the claim “ ‘in the interest of judicial economy to
prevent the inevitable ineffectiveness-of-counsel claim’ ” (People v. Russell

46
(2010) 187 Cal.App.4th 981, 993), there is a compelling reason to consider it
premature at best.
More than half of the total sentence, 175 years, is removed from
consideration by our determination that none of the 7 theft counts can, at
present, be affirmed. It is possible some of this time may be restored if the
People successfully elect to retry him. We further concluded that application
of section 654 requires an additional 50 years to be stayed. In short,
defendant’s final aggregate sentence is unknown at this time, making a cruel
and/or unusual analysis impossible.
DISPOSITION
The convictions for perjury, forgery, and identity theft are affirmed.
The theft convictions are reversed. The aggregate sentence is vacated, and
the cause is remanded for resentencing. Our opinion is without prejudice to
any appropriate motion defendant may choose to present at his sentencing.
If the prosecution elects to retry the theft charges, defendant can be tried on
no more than four counts in conformity with Whitmer.

47
 _________________________
Miller, J.

WE CONCUR:

_________________________
Kline, P.J.

_________________________
Richman, J.

A155134, People v. Clotfelter

48