P. v. Armentrout
Filed 8/10/12 P. v. Armentrout CA4/3
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
WILLIAM PHILLIP ARMENTROUT,
JR.,
Defendant and Appellant.
G044542
(Super. Ct. No. 08NF1461)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, James P. Marion, Judge. Affirmed in part and reversed in part.
Jan B. Norman, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, and Kevin Vienna, Deputy Attorney General, for
Plaintiff and Respondent.
INTRODUCTION
Defendant William
Phillip Armentrout, Jr., appeals from his conviction for four counts of
received and cashed 19 pension checks from the Veterans’ Benefits
Administration (VA) intended for his deceased father. He was charged with one count of forgery, one
count of grand theft and one count of false personation for each check,
resulting in four convictions.
Defendant maintains on
appeal that he should not have been convicted of four separate offenses,
because he acted with one intent and one purpose in cashing the checks. He also asserts the trial court erred in
suspending, rather than striking, a third one-year sentence enhancement.
FACTS
The father of defendant
William Phillip Armentrout, Jr., also named William Phillip Armentrout
(Armentrout, Sr.), was a veteran who had served in Vietnam
and during peacetime. As such, he was
eligible for veterans’ benefits. On December 2, 2005, hospitalized for
brain and lung cancer, Armentrout, Sr., applied to the VA for pension benefits.
later but did not approve pension benefits for Armentrout, Sr., until October 12, 2006. By that time, Armentrout, Sr., had died.
sending monthly pension checks to the address on the application form.
The monthly checks were
made payable to William Phillip Armentrout.
Defendant cashed the checks at a local liquor store and spent the money.
information from the Social Security Administration that Armentrout, Sr., was
deceased. By December 2007, the
investigator had confirmation in the form of the death certificate for
Armentrout, Sr. In April 2008, the
investigator began surveillance of the address where the checks were being
received and interviewed various people connected with defendant and the
checks. Defendant was finally arrested
in May 2008. By that time he had
received and cashed 19 checks. He was
charged with 19 counts of forgery, 19 counts of false personation, and 19 counts
of grand theft, 57 counts in all. The
checks totaled approximately $40,000.
Defendant testified at
his trial. He told the jury he believed
the checks were his, as a legacy from his father, stating that his mother had
so informed him. Two items of evidence
introduced at trial were, first, a VA change-of-address form, signed by
defendant and dated December 16, 2007, on which the box “veteran” had been
checked,
included in the contacts function not only his father’s name but also his date
of birth, Social Security number, and driver’s license number. Defendant stated that his wife had prepared
the change-of-address form, and he had signed it without reading it. Defendant himself was not a veteran. He could not account for the presence of his
father’s date of birth, Social Security number, and driver’s license number on
his cell phone. Defendant’s wife did not
testify. His mother was too ill to come
to court to testify.
In August 2010,
defendant was convicted of four counts of grand theft, four counts of false
personation, and four counts of forgery.
The convictions were for the four checks dated and cashed between
February and April 2008, totaling about $6,000.
counts.
Defendant had eight
prior convictions, both felony and misdemeanor, including 3 one-year
enhancements for prior prison terms under Penal Code section 667.5.
grand thefts (midterm) and all other convictions were either stayed under Penal
Code section 654 or were run concurrent with the grand theft sentence. To this, the court added one year each for
two of the Penal Code section 667.5 enhancements, and purported to suspend the
third for purposes of sentencing.
Defendant has appealed
on two grounds. First, he asserts that
the third one-year enhancement should have been stricken, not suspended. Second, he asserts that he should have been
convicted of only one count of grand theft, because cashing the checks was one
offense, not four separate acts of theft.
This issue was not raised in the trial court.
DISCUSSION
of Enhancement Sentence
The Attorney General
agrees with defendant that the trial court erred when it suspended defendant’s
third one-year enhancement rather than striking it. (People
v. Langston (2004) 33 Cal.4th 1237, 1241 [enhancement mandatory unless
stricken]; People v. Jones (1992) 8
Cal.App.4th 756.) The abstract of
judgment does not mention the disposition of the third enhancement.
reflect the striking of the third enhancement.
Grand Theft Convictions
Defendant also argues he
should not have been convicted of four counts of grand theft, but only of one,
because his theft of his father’s pension checks was pursuant to a single
general plan.
title="">[8] The leading case on this issue is
received over a year’s worth of monthly welfare checks while misrepresenting
her marital status. The issue in
for amounts under the threshold for grand theft could be aggregated to support
a grand theft offense. (
could. (Ibid.)
Although the issue in
added up to meet the grand-theft threshold, the rule has also been applied to
overturn convictions on multiple counts of grand theft in cases where the
stolen amount in each count exceeded the minimum but each theft was part of an
overarching plan and design. (See, e.g.,
People v. Kronemyer (1987) 189
Cal.App.3d 314] (Kronemyer) [lawyer
looted client’s savings accounts as single scheme]; People v. Packard (1982) 131 Cal.App.3d 622 (Packard) [defendant set up fake company to defraud Paramount
Studios]; People v Richardson (1978)
83 Cal.App.3d 853 (Richardson),
disapproved on other grounds in People v.
Saddler (1979) 24 Cal.3d 671, 682 [plot to steal and cash four warrants for
$800,000 each from City of Los Angeles].)
“Whether multiple
takings are committed pursuant to one intention, one general impulse, and one
plan is a question of fact for the jury based on the particular circumstances
of each case. [Citations.] As with all factual questions, on appeal we
must review the record to determine whether there is
that the defendant harbored multiple objectives. [Citations.]
The Bailey doctrine applies as
a matter of law only in the absence of any evidence from which the jury could
have reasonably inferred that the defendant acted pursuant to more than one
intention, one general impulse, or one plan.
[Citation.]” (
971, 983-984 (Jaska ).) In Jaska,
the court identified several types of evidence indicating a single intent
behind a series of thefts. These
are: (1) whether defendant concocted a
plot or scheme before the actual thefts; (2) whether the defendant targeted
particular assets or a discrete sum of money; (3) whether the thefts occurred
within a short time span or in a single location; and (4) whether the defendant
committed the thefts using the same method.
(Id. at pp. 984-985.)
We look at the record to
see whether substantial evidence supports an inference of a single offense or
multiple objectives in this case. (
1142, 1149-1150.)
But in this case, our
execution of that task is made easier by the Attorney General’s concession at
oral argument that substantial evidence does not support the inference of
multiple objectives. While not
determinative, that concession certainly provides guidance for our review. We find nothing to convince us that
concession is ill-founded in this case, and therefore reverse three of the four
counts against appellant.
DISPOSITION
Appellant’s conviction
is reversed in counts 51, 54, and 57.
The third prior prison term enhancement alleged against him, which the
court ordered suspended, is ordered stricken.
His conviction on count 48 is affirmed.
The clerk of the superior court is ordered to amend the abstract of
judgment to reflect dismissal of the three reversed counts and striking of the
enhancement. Since appellant’s sentence
was based on the mid-term of one count plus enhancements for his other two
prior convictions, and our judgment does not affect any of the evidence against
him, this resolution does not alter his sentence.
BEDSWORTH,
ACTING P. J.
WE CONCUR:
FYBEL, J.
THOMPSON, J.
name="_ftn1" title=""> [1] Pension benefits differ from
compensation benefits. A veteran obtains
compensation for service-related injuries.
A veteran who qualifies may obtain pension benefits even if he or she
has no service-related injuries. An
initial pension may be granted for war-time service and non-service-related
disabilities. A special pension may also
be granted to veterans who are bedridden or otherwise unable to care for
themselves.
name="_ftn2" title=""> [2] Armentrout, Sr., died on December
10 or 12, 2005.
