Filed 1/21/20 P. v. Bushman CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID XAVIER BUSHMAN,

Defendant and Appellant.

B290943

(Los Angeles County

Super. Ct. No. GA098019)

APPEAL from a judgment and orders of the Superior Court of Los Angeles County, Darrell Mavis, Judge. Affirmed and remanded.

Stephen M. Vasil, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

INTRODUCTION

Appellant David Xavier Bushman was found guilty of murder. The court sentenced him to 50 years to life under the Three Strikes law and found true allegations that he suffered prior convictions subjecting him to six additional years in prison.

On appeal, Bushman alleges the court abused its discretion by excluding evidence of a third party’s culpability. The evidence was a vague statement allegedly made by one of the investigating detectives. No evidence was proffered to identify the subject of the statement, and we do not find Bushman’s interpretation of the statement reasonable. Furthermore, his interpretation of the statement would nonetheless be inadmissible because it merely suggested a third party may have had a financial interest in the victim’s demise; neither the statement nor any other evidence connected the third party directly or circumstantially to the crime itself.

Bushman alleges, the People concede, and we agree Bushman is entitled to a remand under Senate Bill No. 1393, which allows trial courts to exercise their discretion whether to strike prior serious felony enhancements.

Bushman also alleges, the People concede, and we agree the trial court must strike two enhancements for prior prison terms under Senate Bill No. 136.

Finally, Bushman alleges he is entitled to a hearing pursuant to People v. Dueñas to present evidence he is unable to pay the fines and fees assessed at his sentencing hearing. Given that the case must be remanded for resentencing, we find the issue moot because Bushman may raise it at the resentencing hearing if he chooses to do so.

FACTUAL AND PROCEDURAL BACKGROUND

I. Relevant Evidence
II.
In July 2015, Arthur Palmer was 72 years old and lived alone in a two-story home in La Crescenta, California. Palmer’s residence had no running water or gas and was in a state of disrepair. Palmer spent most of his time alone, but was friendly with his neighbor, John Mihld. Palmer and Mihld had lived across the street from each other for 47 years, they would spend time together at each other’s houses a few times a week, and Palmer would come to Mihld’s house regularly to fill large bottles of water for use in his home.

In the summer of 2014, appellant Bushman, who was homeless at the time, lived with Palmer for six to eight weeks. Bushman and Palmer were related by marriage and Bushman referred to Palmer as his uncle. After Bushman arrived, Palmer brought three rifles and a $100 bill to Mihld’s house. He asked Mihld to hold the items while Bushman stayed at his house. Palmer told Mihld he was afraid of Bushman. In January or February of 2015, Mihld returned the rifles and money to Palmer and never saw Bushman at Palmer’s house again.

Palmer was last seen alive on Tuesday, July 21, 2015. Surveillance video captured Palmer at a supermarket that afternoon. In the video, Palmer removes his wallet from his right rear pocket, pays for his purchase, and returns his wallet to the same pocket. The manager of the La Crescenta Library testified she saw Palmer at the library Tuesday evening. She remembered Palmer kept his library card in a wallet he placed in his back pocket.

When Palmer got home that night, telephone records showed several calls from his landline to Bushman’s cell phone between the hours of 9:15 pm and 9:29 pm. Bushman did not answer the calls.

On the next night, July 22, 2015, Mihld noticed Palmer’s front porch light was on. It remained on for the next few days, which Mihld found unusual; it was off by July 24, 2015. When he could not reach Palmer by telephone, Mihld became concerned and called the Los Angeles County Sheriff’s Department to request a welfare check.

Early in the afternoon of July 24, a deputy sheriff met Mihld in front of Palmer’s house, entered the residence, and discovered Palmer’s body at the bottom of the stairs. Palmer had suffered severe head trauma. A rawhide mallet with a wooden handle was found nearby with blood and hair stuck to the mallet’s head and handle. DNA from the mallet contained a mixture of Palmer and Bushman’s DNA. The right rear pocket of Palmer’s pants had been turned inside out, and Palmer’s wallet was never located in the house.

There were no signs of forced entry. A fresh cigarette butt was found in the front yard; DNA on the cigarette matched Bushman’s. Among other items recovered from Palmer’s house were a can of pepper spray, a ball peen hammer, and a baseball cap inscribed with the phrase “Haters Make Me Famous.” All three items contained Bushman’s DNA. Deputies also found a locked gun cabinet in the upstairs hallway; the glass had been shattered, a shard of which was marked with Bushman’s palm print. Several bank statements found in a guest bedroom revealed Palmer had “a pretty good amount” of money.

Bushman was arrested on August 13, 2015. Among Bushman’s belongings was a two-page document with a hand drawn map of the west coast from Mexico to Alaska. Additional writings referred to Alaskan fishing boats, getting a passport, writing his will, and ensuring his children receive copies of all legal and personal correspondence.

At the sheriff’s department, Bushman waived his Miranda rights and agreed to speak with Detective Dawn Retzlaff. When the detective told Bushman his uncle was dead, Bushman first replied, “Uncle Art’s dead?” and “No way.” He then asked, “Uncle Art’s dead? Did he leave me anything?” Later in the interview, Bushman said, “I wonder if he left me anything. I wonder if he left me anything.” Moments later, Bushman repeated, “I wonder if he left me anything, you know. If he did, I’m gonna give it to my kids.” The detective asked Bushman if he had a hat inscribed with “Haters Going to Hate.” Bushman replied he had a hat that said, “Haters Make Me Famous.”

The autopsy revealed Palmer died of multiple blunt force traumatic injuries. The multiple wounds to Palmer’s head were consistent with having been inflicted by a mallet. By the time the sheriffs arrived at Palmer’s house on July 24, 2015, Palmer had been dead for at least 24 hours and probably more than two days.

Bushman testified at trial. He denied killing Palmer and admitted he had previously been convicted of robbery, false imprisonment, and being a felon in possession of a firearm. Bushman testified that when he lived with Palmer, he helped Palmer with a number of home repairs, including some that required the use of a rawhide mallet and a ball peen hammer. While working upstairs on the ceiling of Palmer’s home, Bushman fell off a ladder into Palmer’s gun cabinet, breaking the glass.

A jury convicted Bushman of first degree murder, and found true the allegation he personally used a deadly and dangerous weapon, to wit, mallet. (Pen. Code, §§ 187, subd. (a); 12022, subd. (b)(1).) At sentencing, Bushman admitted a prior robbery conviction that qualified as a prior strike conviction within the meaning of sections 667, subdivision (d) and 1170.12, subdivision (b). The strike prior also qualified as a prior serious felony conviction within the meaning of sections 667, subdivision (a)(1). Bushman also admitted two prior prison term convictions within the meaning of section 667.5, subdivision (b).

The trial court sentenced Bushman to an aggregate term of 56 years to life. For the murder, the court imposed 25 years to life, doubled under the Three Strikes law to 50 years to life. The court imposed one year for the deadly weapon enhancement, and five years for the prior serious felony enhancement. The court also imposed and stayed two 1-year terms for each of the prior prison term enhancements. In addition, the court imposed a $40 court operations assessment (§ 1465.8, subd. (a)(1)), a $30 court facilities assessment (Gov. Code, § 70373), and a $300 restitution fine (§ 1202.4, subd. (b)). It imposed and stayed a $300 parole revocation restitution fine (§ 1202.45).

Bushman timely appealed, alleging: (1) the trial court abused its discretion by precluding him from eliciting evidence of third party culpability; (2) he is entitled to a remand for the trial court to exercise its newly-authorized discretion pursuant to Senate Bill No. 1393 to strike the five-year prior serious felony enhancement; and (3) he is entitled to a remand to present evidence of his inability to pay the fines and fees. The People argue the trial court properly excluded third party culpability evidence, but agree Bushman’s case must be remanded in light of Senate Bill No. 1393. The People also concede Bushman may raise his inability to pay argument at the resentencing hearing.

During the pendency of this appeal, we granted Bushman leave to file a supplemental brief alleging the two 1-year prior prison term enhancements must be stricken in light of Senate Bill No. 136. The People filed a reply brief conceding the enhancements must be stricken.

DISCUSSION

I. Exclusion of Evidence of Third Party Culpability
II.
During cross-examination Detective Retzlaff was asked whether she ever considered Mihld a suspect in Palmer’s murder. She replied in the negative. Defense counsel then asked Retzlaff whether she wrote a report or statement indicating Mihld behaved strangely during the investigation. The People objected and Retzlaff did not answer.

Outside the presence of the jury, defense counsel referred to this statement in the discovery materials which was signed by Retzlaff: “Due to the nature of your client’s contact with witness John Mihld, his behavior during the course of this investigation raises concerns regarding any financial gains he may have secured due to the victim’s demise and if he played a role in this particular incident.” There was no evidence proffered at sidebar that further explained the statement, its origins, its purpose, or to whom the many pronouns referred. Defense counsel argued the jury had a right to know if there was another suspect in the murder. He also argued the statement was relevant because there might be testimony that Mihld’s son picked up Palmer’s mail and that, because Palmer’s house appeared dilapidated from the outside, the only way one could know Palmer had any money was to look at his mail. In other words, defense counsel argued the statement was relevant because it might suggest Mihld had an opportunity to view Palmer’s mail, learn of Palmer’s wealth, and form a financial motive to murder him. The court sustained the objection under People v. Hall (1986) 41 Cal.3d 826, which held that evidence of mere motive or opportunity, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt. No evidence or testimony about this statement was presented to the jury.

A. The Statement
B.
There is no testimony or other evidence indicating to or about whom Retzlaff addressed her statement, if she did, in fact, author the statement. It is not clear who the “client” is, or to whom the statement is directed. Nonetheless, it does not appear to us that Retzlaff was referring to Mihld when she commented on an unidentified “client’s” behavior. It does appear clear to us that Retzlaff was attributing “his behavior” to the “client,” whomever that may be. The placement of the comma in this statement compels us to read the statement as follows: “Due to the nature of your client’s contact with witness John Mihld, [your client’s] behavior during the course of this investigation raises concerns . . . .” The subject of this sentence is the client’s behavior, and the preceding clause serves to alert the reader that the writer’s conclusions about the client’s behavior are based on the nature of the client’s contact with Mihld.

Bushman unsuccessfully attempts to contort Retzlaff’s statement into evidence that Retzlaff considered Mihld to be a suspect in the murder. To do so, Bushman re-works the statement by inserting a “[sic]” in a sentence that reveals no obvious error on its face. In his opening and reply briefs, he posits the statement as follows: “ ‘Due to the nature of your client’s [sic] contact with witness John Mihld, his behavior during the course of this investigation . . . .’ ” Bushman contends he is not the “client” here because the only way “client’s” could refer to him would be if Retzlaff were addressing the report to defense counsel, and there is no evidence she was. Therefore, Bushman proceeds to argue, because there is no evidence Retzlaff was addressing defense counsel, the word “ ‘client’s’ ” resulted either from defense counsel’s error in reading the report aloud or Retzlaff’s error in writing the report. Bushman concludes that the statement makes sense only if the word “client’s” refers to Ratzlaff herself.

Appellant’s re-write of the statement makes no sense. Bushman would have the sentence read as follows: “Due to the nature of [my] contact” (instead of “your client’s contact”) with witness John Mihld, his behavior during the course of this investigation raises concerns . . . .” Bushman provides no explanation for why Retzlaff would refer to herself in a writing as “your client.” We find no plausible explanation why a writer would refer to herself as another person and we can conjure no hypothetical situation in which doing so would make any sense whatsoever.

Bushman’s tortured interpretation of Ratzlaff’s statement relies on a fundamentally unsound premise: that the absence of evidence is evidence. Bushman would have us believe that because there is no evidence Ratzlaff was addressing defense counsel in the statement, she could not have been, and therefore the statement was mistakenly dictated or transcribed. Yet, there is no evidence Ratzlaff was not addressing defense counsel and Bushman’s attempts to re-work the sentence in his favor yield nonsense.

Ultimately, Retzlaff’s statement is vague as to the identity of the “client” and any attempt to construe it as referring to Mihld is unfounded speculation, not evidence.

C. The Court Did Not Abuse its Discretion by Precluding Bushman from Eliciting Testimony About the Statement
D.
In any event, were we to read the statement to mean Retzlaff was expressing concern about Mihld’s behavior, we would find no error. Bushman’s spin on the content of the statement—which he construes as Mihld acting strangely or suspiciously during the investigation—is not supported by the evidence. All the statement could have done is suggest Mihld had a motive to kill Palmer, which is not enough to render it admissible.

“A trial court’s ruling excluding third party culpability evidence is reviewed for abuse of discretion.” (People v. Elliott (2012) 53 Cal.4th 535, 581.) “To be admissible, the third-party evidence need not show ‘substantial proof of a probability’ that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant’s guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party’s possible culpability. . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice.” (People v. Hall, supra, 41 Cal.3d at p. 833.) “Evidence that raises a reasonable doubt as to a defendant’s guilt, including evidence tending to show that another person committed the crime, is relevant. But evidence that another person had a motive or opportunity to commit the crime, without more, is irrelevant because it does not raise a reasonable doubt about a defendant’s guilt; to be relevant, the evidence must link this third person to the actual commission of the crime.” (People v. Brady (2010) 50 Cal.4th 547, 55.) “ ‘[T]o be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt . . . must link the third person either directly or circumstantially to the actual perpetration of the crime.’ ” (People v. Elliott, at p. 580.)

Bushman repeatedly describes Mihld’s behavior during the investigation as “strange” or suspicious. Bushman argues this behavior is evidence, and that such evidence was admissible because it would support an inference of consciousness of guilt. Bushman then cites a string of cases in which courts determined evidence was admissible to raise an inference of consciousness of guilt: false statements to police (People v. Osslo (1958) 50 Cal.2d 75, 93); evasive replies and refusal to answer custom inspector’s questions (People v. Mitchell (1962) 209 Cal.App.2d 312, 321); furtive acts and suspicious conduct (People v. Tripp (2007) 151 Cal.App.4th 951, 956); a third party’s false statements and threats to others to support his false alibi (In re Hardy (2007) 41 Cal.4th 977, 1012, 1014); and flight (People v. Henderson (2003) 110 Cal.App.4th 737, 743).

Here, the problem is Retzlaff’s statement does not describe Mihld’s behavior at all, much less suggest it was strange. The only place in the record referring to Mihld’s behavior as strange was defense counsel asking Retzlaff whether she ever wrote a report or statement indicating Mihld’s behavior was strange. Defense counsel’s unanswered question is not evidence. We decline to adorn this vague statement with details suggested only by defense counsel’s unanswered questions about it.

Finally it is not an abuse of discretion for a court to exclude evidence that supports only speculative inferences. (People v. Adams (2004) 115 Cal.App.4th 243, 253.) Bushman’s argument that the evidence was admissible to suggest Mihld’s consciousness of guilt therefore fails. Defense counsel proffered no evidence connecting Mihld either directly or circumstantially to the actual murder. (People v. Elliott, supra, 53 Cal.4th at p. 580.) Even if the statement was intended to suggest Mihld had a financial interest in Palmer’s demise and was potentially connected to the murder, it would amount to no more than evidence of motive, which is not enough on its own to warrant admission. The trial court properly sustained the People’s relevance objection on this basis. We find no error.

E. California’s Admissibility Requirements for Evidence of Third Party Culpability Do Not Contravene the Evidence Code or the California Constitution, Nor Do They Violate a Defendant’s Sixth and Fourteenth Amendment Rights
F.
Bushman contends Hall’s admissibility requirements for third party culpability evidence create a higher threshold for admissibility than for all other evidence. He argues Hall violates Evidence Code sections 210 and 351, which define relevant evidence and declare all relevant evidence is admissible. He also contends Hall violates the California Constitution’s “Truth-in-Evidence” provision of Proposition 8, which provides that all relevant evidence shall not be excluded in any criminal proceeding. (Cal. Const., art I, § 28, subd. (f)(2).) Finally, Bushman argues Hall violates a criminal defendant’s federal constitutional rights to present a complete defense.

Hall expressly holds courts should “treat third-party culpability evidence like any other evidence: if relevant it is admissible [citation] unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion.” (People v. Hall, supra, 41 Cal.3d at p. 834.) Despite this language, Bushman insists third party culpability evidence is only admissible under Hall if it raises a reasonable doubt about a defendant’s guilty.

First, as Bushman acknowledges, we are bound by Hall. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We therefore decline to address Bushman’s constitutional and statutory challenges to Hall.

Second, we would not find Retzlaff’s statement relevant under any reasonable standard because, in our view, the evidence does not establish that Retzlaff was commenting on Mihld’s motivations or behavior. The subject of the statement was unidentified, vague at best, and not susceptible to the interpretation that Retzlaff was referring to Mihld’s behavior. Relevant evidence is evidence “having a tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Appellant’s inferential leap that Mihld behaved strangely was not supported by the facts, nor did it constitute evidence. Ultimately, appellant’s speculative characterization did not have a tendency to prove or disprove any disputed fact.

III. Senate Bill No. 1393
IV.
Bushman was sentenced on June 26, 2018, when courts did not have the discretion to strike prior serious felony enhancements in the interest of justice under section 1385. (People v. Gonzalez (2019) 39 Cal.App.5th 115, 123.) Senate Bill No. 1393, effective January 1, 2019, amended section 1385 to allow courts to exercise their discretion to strike or dismiss prior serious felony enhancements. (People v. Garcia (2018) 28 Cal.App.5th 961, 971.) Senate Bill No. 1385 is retroactive to those cases not yet final on appeal. (Id. at pp. 971–972.)

When the record shows that the trial court sentenced a defendant on the assumption it lacked discretion, remand is necessary to allow the court to exercise its sentencing discretion at a new sentencing hearing. (People v. Gonzalez, supra, 39 Cal.App.5th at p. 123.) We agree with Bushman and the People that remand is warranted here to permit the trial court to exercise its discretion whether to strike the five-year prior serious felony enhancement.

V. Senate Bill No. 136
VI.
At the time of Bushman’s sentencing, courts imposed a one-year sentencing enhancement for every prior prison or county jail term imposed under section 1170, subdivision (h). (People v. Lopez (2019) 42 Cal.App.5th 337, 340.) On October 8, 2019, the Governor signed Senate Bill No. 136, which limits the enhancement to prior prison or jail terms imposed for certain sexually violent offenses as defined in Welfare and Institutions Code section 6600, subdivision (b). (Id. at pp. 340–341.) Senate Bill No. 136 became effective on January 1, 2020.

It is undisputed none of Bushman’s prior prison terms were imposed for sexually violent offenses. The People concede and we agree Senate Bill No.136 applies to Bushman retroactively. “When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper.” (In re Estrada (1965) 63 Cal.2d 740, 745.) “It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty . . . should apply to every case to which it constitutionally could apply.” (Ibid.) Our Supreme Court has already established that, absent any indication to the contrary, when the Legislature enacts an ameliorative change to the criminal law, Estrada’s inference of retroactivity applies to sentences not yet final on appeal. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308–309.)

Senate Bill No. 136 is an ameliorative change to the criminal law, evidencing the Legislature’s determination that imposing sentencing enhancements upon every prior prison term is too severe and should be applied only to sexually violent offenders. Accordingly, the court shall strike the two prior prison enhancements upon remand at Bushman’s resentencing hearing.

VII. Fines and Fees
VIII.
Bushman argues he is entitled, under People v. Dueñas (2019) 30 Cal.App.5th 1157, to a hearing on his ability to pay his fines and fees. We find the issue moot as Bushman will be resentenced. (People v. Buycks (2018) 5 Cal.5th 857, 893 [“[W]hen part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.’ ”].)

DISPOSITION

The matter is remanded for a resentencing hearing where the court may exercise its discretion to strike the five-year prior serious felony enhancement imposed under section 667, subdivision (a)(1). Upon remand, the court shall strike the two sentencing enhancements imposed under section 667.5, subdivision (b). At the resentencing hearing, appellant may present evidence of his ability to pay the fines and fees imposed at sentencing, and the court may exercise its discretion to vacate, reduce, or leave them in place.

The judgment is affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

BIGELOW, P.J.

GRIMES, J.