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Name: People v. Bush
Case #: E062790
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 03/22/2016

Conviction for theft from an elder person (Pen. Code, § 368, subd. (d)) is not subject to reduction to misdemeanor under Proposition 47. Bush pleaded guilty to theft from an elder (Pen. Code, § 368, subd. (d)), receiving stolen property, and other offenses. He admitted a strike prior. After Proposition 47 passed in November 2014, Bush petitioned to reduce these felony convictions to misdemeanors. The court denied the petition, finding Bush ineligible for resentencing. He appealed. Held: Affirmed in part; reversed in part. Proposition 47 reduced certain theft-related felonies to misdemeanors. It added Penal Code section 1170.18, whereby qualified defendants may petition for resentencing of their felony convictions. Penal Code section 368 (theft from an elder) was not amended by Proposition 47, nor is it included in the list of offenses in section 1170.18 as eligible for resentencing. Penal Code section 490.5, which defines grand theft as involving the taking of property with a value greater than $950, does not provide indirect resentencing eligibility for a section 368 offense under section 1170.18. This is because Proposition 47 did not amend section 368 to remove the sentencing court’s discretion to treat the offense as either a felony or a misdemeanor. Thus, Bush cannot show that his conduct would have been a misdemeanor had it occurred after the passage of Proposition 47.

The evidence in the record does not support the trial court’s denial of resentencing as to defendant’s receiving stolen property convictions. The trial court did not specify its reasons for denying resentencing as to Bush’s felony receiving stolen property convictions. The record does not contain sufficient evidence to show the convictions involved property worth more than $950. Thus, on remand, Bush’s eligibility for resentencing on these counts should be determined.

The full opinion is available on the court’s website here: