People v. Clotfelter

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

A155659

A155683

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

June 2, 2021

CERTIFIED FOR PUBLICATION

(Napa County Super. Ct. Nos. CR174307, 18CR000792)

INTRODUCTION

Defendant Bruce Lee Clotfelter was convicted of multiple counts of child molestation in the 1980's and sentenced to 10 years in state prison. After he served his sentence and was released from prison, he was later found to be a sexually violent predator (SVP). While Clotfelter was held in a state hospital as an SVP, he volunteered to be surgically castrated, a procedure that took place in 2001. In June 2007, Clotfelter was unconditionally released from the state hospital, and subject to lifetime registration as an SVP.

During a routine sex offender compliance check and search of Clotfelter's residence in October 2016, an officer found evidence that he had formed relationships with three minor boys (two were brothers) and their respective families. Clotfelter was charged with sexual offenses and other crimes.

In September 2018, after a trial on the sexual offenses, a jury convicted Clotfelter of two counts of annoying or molesting a child (Steven) under the age of 18 (Pen. Code,¹ § 647.6, subd. (c)(2) [counts 1 & 2]), two counts of contacting or communicating with a 14 or 15-year-old child (B.H.) with the intent to commit a sexual offense (§§ 288.3, subd. (a), 288, subd. (c)(1) [counts 3 & 4]), and two counts of contacting or communicating with a child under the age of 14 (E.H.) with the intent to commit a sexual offense (§§ 288.3, subd. (a), 288, subd. (a) [counts 5 &6]).

Clotfelter contends there was insufficient evidence to support his conviction on the counts of annoying or molesting Steven, then 15 years old. He also contends that in any event the entire judgment must be reversed for prejudicially ineffective assistance of counsel that deprived him of a fair trial. Clotfelter argues that defense counsel consistently failed to object to inadmissible, irrelevant, and prejudicial evidence. This includes defense counsel's consistent failure to object to inadmissible expert testimony that Clotfelter had the requisite mental states to commit the charged crimes and in fact was guilty; failure to object to the admissibility of expert testimony on child sexual abuse accommodation syndrome that was irrelevant and prejudicial; and failure to object to irrelevant and prejudicial testimony about his prior sexual offenses that went well beyond the parameters of Evidence Code section 1108. We conclude that the evidence was insufficient to support the convictions on counts 1 and 2, and that trial counsel's deficient performance warrants a reversal. Accordingly, we reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Prosecution's Case

A. Steven (Counts 1 & 2)

In September 2007, Clotfelter moved to Napa County, where he joined a local church. His brother-in-law, Gary Stewart, was a member of the board of elders at the church. Clotfelter told the board of elders about his past. Knowing Clotfelter had been punished for his prior crimes, Stewart forgave him and welcomed him into the community.

Clotfelter became friends with many people through the church, among them Tom,² his wife, and their children, including their 15-year-old, Steven. Clotfelter told Tom that he had gone to prison for child molestation. Clotfelter was a regular guest at Tom's home and became like a member of the family.

Steven testified at trial; he was then 25 years old. Clotfelter saw Steven at least once a week at family gatherings and church events. Over time, Clotfelter became like a father figure or older brother to Steven. They regularly communicated by email. During the course of their friendship, which lasted over two years, Clotfelter bought Steven clothing, running shoes, an electronic drawing tablet, and exercise equipment ("ab straps" for working out the "core").

Steven knew at the time that Clotfelter had been to prison but did not know the nature of his offenses. Steven was not troubled by Clotfelter's past because he believed strongly that people could change and should be forgiven. It was normal for Steven to have physical contact with Clotfelter through hugs, and neck and shoulder massages. On at least one occasion, Clotfelter, aformer gymnast, went with Steven to a gym and spotted Steven as he tried to perform a back tumble. Steven never felt uncomfortable about being around Clotfelter. Clotfelter never tried to kiss or touch him inappropriately, never discussed sexual matters with him, and never tried to show him anything "creepy" or "weird." Steven loved and trusted Clotfelter, and thought their hugs and handshakes were appropriate. Steven never contacted law enforcement about Clotfelter.

Steven's older sister testified that she felt uncomfortable with Clotfelter's overly familiar manner with her younger siblings. She thought he sat too close to them on the sofa; he put his arm around them, held their hands, and would play a game with them where they poked each other in the ribs. At some point, their mother told her Clotfelter had been in prison for child molestation and that the church was requiring him to tell the community about it. Their mother was upset that Clotfelter was being unfairly targeted because she felt Clotfelter had changed. Steven's sister testified she was "shocked" her parents had welcomed Clotfelter into their home knowing his history.

Church Tells Clotfelter Not to Contact Minors

Parishioner Erik Olson, who was also a Napa County deputy sheriff, became aware of Clotfelter's "290 status" in or about 2008. Olson testified that he felt the church congregation needed to be notified about Clotfelter's past. In the fall of 2009, the church required Clotfelter to advise the congregation that he had been in prison for child molestation. Following this disclosure, the church instructed Clotfelter not to have contact with minors on church premises. Steven testified he and Clotfelter would still talk to each other "in passing" at church and they continued to maintain regular email contact.

Emails

The prosecution introduced many emails between Clotfelter and Steven into evidence, dated from August 30, 2009, to January 25, 2010.

For example, Clotfelter sent Steven an email entitled "A friendly thought" with a picture of a person running near mountains, which read: "Hey, I got this photo for my friend Kevin and I thought about you. I think Chamonix, France would be an amazing place to run . . . or walk, bike, sit, veg, etc.[] Anyway, I was thinking about you and wanted to say goodnight."

Referring to a church men's retreat he and Steven attended, Clotfelter sent another email that read: "[T]hank you for being my friend. I had a great time this weekend and I'm glad you were there. I'm so sorry about having to ask you not to hug me at church. It's a horrible thing that I can't show you how much I care with a hug, but there will be people that will talk and I love you way too much to allow the sin of my past to stain you in any way. So, I'll give you a hug when I come over to your house!! [¶] By the way, when you told me that you already knew about 'the' crimes I was blown away. You've always treated me like you didn't know and for that I'm grateful. [¶] I really hope, and pray, my sharing all that trash on Saturday night didn't harm you in any way, because I'm nervous about that. [¶] You're awesome!! I'll see you sometime this week. [¶] Love ya pal[.]"

On October 3, 2009, Clotfelter sent Steven an email entitled "Friendship," writing: "As usual, you've brought me joy and laughter. . . . I'm also grateful you feel our friendship got deeper tonight. I feel the same way and regardless of what the leadership of the church chooses to do, I will continue to be your friend . . . even if it means choosing to attend another church, which would grieve me." Steven wrote back, "Our friendship will stay the same regardless of what gets in our way. Nothing can break it. Andif you ever feel . . . differently, I may take on a tone similar to my dad's and call you a moron. [¶] In all seriousness, though, I know it's going to be tough Sunday morning. Just know that I'll always be here for you, no matter what." Clotfelter responded, "Thanks. I'd be a total moron to let anything get in the way . . . so I won't. PERIOD!!"

On October 4, 2009, Clotfelter and Steven exchanged emails about singing together in the choir. Clotfelter wrote, ". . . not being able to sit next to you, or even talk to you is gonna kill me. So, you'll just have to keep in mind that although I've got a bunch of friends in that room, you're my best bud." Steven replied that he felt "more remorse over losing the ability to interact with you for the next two years of my life than I did when I was at my most recent relative's funeral. . . . Just know this: you're going to have one hell of a big hug come my 18th birthday." Clotfelter replied, "Are [sic] being told we can't interact for 2 years . . . at all . . . ever?" Steven responded, "Pretty much. Unless I'm mistaken, there's not much we can do. Obviously no physical contact, pretty much no talking with each other, and I'm not sure our corresponding via the internet is all that wise (that is, however, debatable)." Clotfelter wrote back, "I'll talk with your mom and dad about all this. I'm absolutely not okay with the prospect of have [sic] no contact with you for 2 years. [] At face value it is totally unacceptable!!"

Clotfelter gave Steven a piece of exercise equipment they referred to as "ab straps." On October 5, 2009, Clotfelter wrote, "To my best friend living in exile . . . Your ab straps have arrived. I'll bring them over when I return your dad's trailer." Steven wrote back, "Bwahahahaha. Abs! I'll have bigger abs!" Clotfelter replied about a week later, "Hello my friend. I know this may be unwise, but I've been known for unwise...