People v. Bush

• Decision Date: 22 March 2016
• Docket Number: E062790
• Citation: 245 Cal.App.4th 992,200 Cal.Rptr.3d 190
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Wade Allyn BUSH, Defendant and Appellant.

245 Cal.App.4th 992

200 Cal.Rptr.3d 190

The PEOPLE, Plaintiff and Respondent,

v.Wade Allyn BUSH, Defendant and Appellant.

E062790

Court of Appeal, Fourth District, Division 2, California.

Filed March 22, 2016

Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Karl T. Terp, and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

CODRINGTON, J.

IINTRODUCTION

Defendant Wade Allyn Bush appeals from an order denying his petition to reduce to misdemeanors his felony convictions for theft from an elder and receiving stolen property (Pen.Code, §§ 368, subd. (d), 496, subd. (a)¹ ) pursuant to section 1170.18, which California voters enacted as part of Proposition 47, the Safe Neighborhoods and Schools Act. The trial court denied defendant's petition on the ground he was not eligible for relief under Proposition 47 due to the nature of his convictions. Defendant contends the trial court committed reversible error by denying his petition without stating the reasons for doing so or specifying the materials relied upon in making its determination. Defendant further argues remand is required because the amount of the stolen property, which was determinative of eligibility for resentencing, is not readily evident from the record.

We conclude defendant is not eligible for resentencing on his convictions for theft from an elder (§ 368, subd. (d); counts 2 and 23) under Proposition 47. However, as to counts 12, 14, and 15, for receiving stolen property in violation of section 496, subdivision (a), we conclude the record on appeal does not support the trial court's finding of noneligibility for resentencing because of the nature of those crimes. A section 496violation is one of the crimes listed as eligible for resentencing if the property received does not exceed $950. The record indicates there was no factual hearing or determination that the property received, consisting of a single identification card as to each count, exceeded $950.

Because the trial court did not state its reasoning for concluding the crimes alleged in counts 12, 14, and 15 were not eligible for resentencing and the record does not support the trial court's ineligibility finding, the trial court's ruling denying defendant's resentencing petition is reversed and remanded for reconsideration of defendant's petition solely as to counts 12, 14, and 15. The judgment is affirmed as to the trial court's denial of defendant's resentencing petition as to counts 2 and 23.

IIFACTS AND PROCEDURAL BACKGROUND

The following facts are taken from a probation report dated August 6, 2003, prepared after defendant was charged with committing 26 offenses between October 1, 2000 and January 7, 2002. Both parties rely on those facts for purposes of this appeal. There is no other evidentiary source in the record because defendant entered a plea bargain and pled guilty to counts 1, 2, 12, 14, 15, 23, and 24. In addition, after the hearing on defendant's petition for resentencing, the petition was separated from the trial court file and not properly returned, resulting in it becoming lost and not included in the clerk's transcript in this appeal.

Probation Report Facts

Although the information alleges some of the charged offenses occurred in 2000 (including counts 12, 14, and 15), the probation report states the charged offenses occurred between October 1, 2001 and January 2, 2002. During that time, Charles Haughey, who was 74 years old, felt sorry for defendant upon first meeting him and let him move into Haughey's home rent free. After defendant moved in, Haughey saw defendant with Haughey's mail and asked defendant about it. Defendant told Haughey to mind his own business.

Defendant brought a dog to Haughey's house and let it attack Haughey's dog, which was a gentle Bearded Collie Haughey had had for many years. Haughey's dog was so badly injured it had to be put to sleep. Defendant told Haughey, " 'If you do anything about it, you'll be next.' " Haughey let defendant continue living at his home rent free because Haughey was too scared to force defendant to move out. Haughey feared defendant would harm him if Haughey made defendant leave.

In January 2002, Haughey's daughter, Carolyn, took Haughey to stay with friends across the street from Haughey's house, because defendant was abusing and taking advantage of Haughey. Carolyn intended to take Haughey to live with her in Arizona, to get him away from defendant. While Carolyn was at the friends' home across the street, she saw a woman go to Haughey's house. The woman told Carolyn she was looking for a man named "Joker," because he had agreed to purchase her vehicle in exchange for a computer. The woman said Joker had purchased a computer using a credit card under the name of Charles Haughey.

Upon checking the mail in defendant's room at Haughey's house, Carolyn found a VISA credit card in Haughey's name that had just arrived in the mail. Haughey believed defendant applied for credit cards in Haughey's name. Carolyn found in defendant's dresser another credit card in Haughey's name, a bank statement for the VISA card, several identification cards, and a copy of Haughey's property tax papers. Haughey had not applied for the credit cards or given anyone permission to do so under his name.

On January 2, 2002, the police were dispatched to Haughey's home in response to a report of suspicious circumstances and spoke with Carolyn and Haughey. The next day, Haughey reported he had locked his residence and turned off the lights while staying with friends across the street. He noticed the lights were on. Haughey requested the police to check his home because it was supposed to be vacant. Haughey believed defendant was in his home. The police contacted defendant at Haughey's home. Defendant said he had just been released from West Valley jail the night before. The officers told defendant they were investigating fraudulent purchases and use of credit cards. Defendant denied any involvement or knowledge of the alleged crimes.

After defendant was arrested and read his Miranda rights, defendant said the identification cards and Social Security cards in his dresser drawer belonged to his ex-girlfriend. He said he did not know anything about a Sears credit card found in his dresser or about applying for credit cards in Haughey's name. When told a witness heard him ordering a computer using Haughey's credit card, defendant said whoever said that was lying. Defendant admitted he used the name "Joker." Defendant said he believed his ex-girlfriend was making accusations against him because she was upset with him.

The woman who said Joker had purchased a computer for her, took the computer and all the parts she received in the mail to the Colton Police Department. When she dropped them off, she said she received a call from an unknown man earlier that morning threatening that, if defendant "goes down, she is going to go down and she better stay out of court."

The reporting probation officer interviewed Carolyn by telephone in July 2003. Carolyn said Haughey died in March 2002, 58 days after moving out of his home where defendant had been living. That home had been in their family for years. Her grandparents built the home. The house was sold to force Haughey to leave it and because defendant had damaged the home. The house was sold for $58,000, at a loss of about $30,000, because of the damage. Other similar undamaged homes in the neighborhood were selling for around $100,000. Carolyn also incurred the cost of $250 to fly Haughey to her home in Arizona because of his poor health. Haughey had been afraid to go home but also afraid to leave his home. Carolyn told the probation officer that, " '[t]echnically, he killed my dad. He deserves everything he gets and more.' " Carolyn said no amount of restitution would make up for defendant causing Haughey's decline in health. Carolyn nevertheless requested restitution for the depreciation in value of Haughey's home and the cost of the airplane ticket.

During defendant's interview at the central detention center in July 2003, he stated, "I did what I was accused of doing.

That man was like a father to me. He died and it hurts. I was strung out on drugs and did all of this to try to keep my girlfriend happy. I feel bad and wish I could take it all back. I wish I could have talked to Charles before he died."

The probation officer who wrote the probation report was unable to verify the loss from First USA Bank. However, according to the police report, a bank statement found at Haughey's house showed a balance of $2,083.44. The probation report recommended restitution in that amount. The bank statement for the First USA Bank VISA card showed balance transfers, telephone services, video mail, cash advances, and charges from Pizza Hut.

Felony Complaint and Information

The district attorney filed a felony complaint, first and second amended complaints, and a 26–count information against defendant for offenses occurring between October 2000 and January 2002. Those offenses include two counts of first-degree residential burglary (§ 459), two counts of theft from an elder (§ 368, subd. (d)), seven counts of misdemeanor theft with intent to defraud using an access or credit card (§ 484e, subd. (c)), one count of fraudulent use of an access card (§ 484g), five counts of identity theft (§ 530.5, subd. (a)), two counts of making criminal threats (§ 422), five counts of receiving stolen property (§ 496, subd. (a)), and two counts of vandalism (§ 594, subd. (a)). Regarding 17 of the offenses, the information alleged defendant had two prior strike convictions.

Plea Bargain, Conviction and Sentencing

Defendant agreed to a plea bargain in which he was convicted of counts 1 (first degree residential burglary; § 459), 2 and 23 (theft exceeding $400 from an elder; § 368, subd. (d)), 12, 14,...