People v. Bartsch CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD230475
- Trial judge
- Edward P. Allard III
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), McINTYRE, Patricia D. Benke
Analysis
The trial court found the defendant guilty of theft from an elder adult and placed her on probation after a bench trial. The Court of Appeal affirmed the judgment following a Wende review, finding no reasonably arguable issues of error.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Conviction for theft from an elder adult (Pen. Code, § 368, subd. (d))“A review of the record pursuant to Wende and Anders, including the possible issues listed pursuant to Anders, has disclosed no reasonably arguable appellate issues.” | substantial evidence | not reached | agree with court The court conducted a Wende review and found no reasonably arguable issues, effectively declining to address the specific merits of the conviction or restitution arguments raised by appointed counsel. |
Award of $123,943 in restitution“A review of the record pursuant to Wende and Anders, including the possible issues listed pursuant to Anders, has disclosed no reasonably arguable appellate issues.” | abuse of discretion | not reached | agree with court The court identified the restitution award as a potential issue but concluded through its Wende review that it was not reasonably arguable, thus affirming the trial court's decision without detailed analysis. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to conduct an independent review of the record for error when no arguable issues are presented.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to file a brief identifying potential issues while arguing they are frivolous, allowing the court to review the record.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Anders framework for appointed counsel appeals. It accurately reflects that the court reviewed the record and found no arguable errors, leading to an affirmance.
How this analysis was made · dispute it
unusual dispositionAfter a bench trial, the San Diego Superior Court found Bartsch guilty of theft from an elder adult (Pen. Code, § 368, subd. (d)) with a taking over $65,000 (Pen. Code, § 12022.6, subd. (a)(1)), placed her on three years' probation, and ordered $123,943 in restitution. On appeal, appointed counsel filed a Wende/Anders brief, Bartsch filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Conviction for theft from an elder adult with excessive-taking enhancement (sufficiency of the evidence)“counsel mentions as possible, but not arguable, issues: (1) whether substantial evidence supports the conviction” | substantial evidence | correct | agree with court The facts recited—Bartsch holding a power of attorney over a memory-impaired elder, withdrawing nearly all of $173,000 in inherited retirement funds without permission, taking $20,000 from a joint account immediately after evicting her mother, and never returning the retirement money—readily support theft from an elder exceeding $65,000. The opinion does not analyze the elements, but on the recited record the result is plainly defensible. |
Victim restitution award of $123,943“(2) whether the court abused its discretion by awarding $123,943 in restitution” | abuse of discretion | correct | unsure The court identified abuse of discretion as the standard and found no arguable issue. The opinion gives no breakdown of how the figure was computed, so the record quoted does not allow independent verification, though an award well below the roughly $173,000 taken from retirement accounts (plus the unreturned $3,000) is facially consistent with the facts. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds no arguable issues may file a brief identifying anything in the record that might arguably support the appeal, and the court then reviews the record.
The appellate opinion: sound — The court followed the Wende/Anders procedure correctly: it noted counsel's brief, gave the defendant an opportunity to file her own brief, independently reviewed the record including the identified possible issues, and affirmed. The opinion contains no substantive legal analysis, which is standard for Wende dispositions, so the result is defensible but the reasoning is minimal.
Opinion
Filed 5/8/14 P. v. Bartsch CA4/1 NOT TO BE PUBLISHED IN 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064368
Plaintiff and Respondent, v. (Super. Ct. No. SCD230475)
DEE ANN BARTSCH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Edward P.
Allard III, Judge. Affirmed.
Jared G. Coleman, 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, Peter Quon, Jr., and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent. After Dee Ann Bartsch waived her right to a jury trial, the court found her guilty of theft from an elder adult (Pen. Code, § 368, subd. (d)) of more than $65,000 (Pen.
Code, § 12022.6, subd. (a)(1)). The court placed Bartsch on three years' probation.
Bartsch appeals. We affirm.
BACKGROUND
Joanne Rogers was born in 1934 and married Stanton Rogers in 1951. Bartsch is their daughter.
In 2003, Mrs. Rogers suffered a brain aneurysm that resulted in memory impairment. In 2008, Mr. Rogers underwent ankle surgery and was unable to care for his wife. At Bartsch's suggestion, Mrs. Rogers left her husband and moved in with Bartsch, although Mrs. Rogers did not want to separate from her husband. Mrs. Rogers trusted Bartsch and signed the papers Bartsch gave her. Shortly after moving in with Bartsch, Mrs. Rogers executed a power of attorney in Bartsch's favor. Bartsch handled Mrs.
Rogers's finances and they had a joint bank account.
Shortly after Mr. Rogers's surgery, Bartsch held a garage sale at which she sold her parents' tools; hundreds of dollars worth of cookware; new washer and dryer and refrigerator; and bed. In June 2008, Bartsch took approximately $10,200 in cash, a gun and personal papers from Mr. Rogers's safe. Around November, Mrs. Rogers received an inheritance from her brother consisting of $173,000 in retirement accounts. She intended to leave the money in those accounts.
Bartsch manipulated Mrs. Rogers and isolated her from other family members. In December 2008, Bartsch took Mrs. Rogers to see a family law attorney regarding the 2 dissolution of the Rogerses' marriage. Bartsch filed a dissolution petition after having Mrs. Rogers sign the papers. Mrs. Rogers did not want to end the marriage and was unaware of the dissolution until after it became final in July 2009. Meanwhile, around January, without Mrs. Rogers's permission, Bartsch sought a restraining order against Mr.
Rogers, naming Mrs. Rogers as an additional protected party.
Over a period of several months in 2009, without Mrs. Rogers 's permission, Bartsch withdrew nearly all of the money from Mrs. Rogers 's inherited retirement accounts. In December, Bartsch petitioned to become Mrs. Rogers 's conservator. Mrs.
Rogers told her appointed attorney, Charles Brown, that she did not need a conservator.
Brown agreed, and he and the court's investigator recommended the petition be denied.
On December 24, Bartsch evicted Mrs. Rogers. Mrs. Rogers called her son Larry and he took her into his home. Bartsch immediately withdrew just over $20,000 from the joint account.
In January 2010, Brown requested an accounting from Bartsch and the court dismissed the conservatorship petition. Mrs. Rogers retained Brown to recover her money and Brown demanded that Bartsch return the money. Bartsch returned the money she had withdrawn from the joint account, minus $3000. In the spring, Mr. and Mrs.
Rogers resumed living together. In September or October, Mrs. Rogers filed a civil lawsuit against Bartsch. In late 2010, Brown received an incomprehensible accounting from Bartsch. Bartsch never returned the money she took from her mother's retirement accounts.
DISCUSSION
3 Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) counsel mentions as possible, but not arguable, issues: (1) whether substantial evidence supports the conviction and (2) whether the court abused its discretion by awarding $123,943 in restitution.
We granted Bartsch permission to file a brief on her own behalf. She has not responded. A review of the record pursuant to Wende and Anders, including the possible issues listed pursuant to Anders, has disclosed no reasonably arguable appellate issues.
Bartsch has been competently represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
McINTYRE, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12