People v. Wealth CA2/8 ( 2022 )

Filed 8/16/22 P. v. Wealth CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B313713
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA462465)
v.
SHEBETH WEALTH,
Defendant and Appellant.
APPEAL from the judgment of the Superior Court of Los
Angeles County. Curtis B. Rappe, Judge. Affirmed in part,
reversed in part and remanded with directions.
Jason Szydlik, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, William H. Shin, Steven D. Matthews,
Michael J. Wise and Rama R. Maline, Deputy Attorneys General,
for Plaintiff and Respondent.
**********
In May 2017, defendant and appellant Shebeth Wealth
assaulted a social worker during a visit with her minor son and
then fled with him. She was arrested later that night at her
home, and her son was returned to the custody of the Los Angeles
County Department of Children and Family Services. Defendant
was charged with kidnapping (Pen. Code, § 207, subd. (a)), child
detention (§ 278.5), and assault by means of force likely to cause
great bodily injury (§ 245, subd. (a)(4)). An allegation of great
bodily injury was also alleged (§ 12022.7, subd. (a)). After a jury
trial, defendant was convicted of all charges and sentenced to
nine years in prison.
In our original unpublished decision, we reversed the three-
year sentence on the great bodily injury enhancement, remanded
for a new sentencing hearing and otherwise affirmed defendant’s
conviction. Our original decision further concluded Penal Code
section 1001.36, enacted in June 2018, did not apply
retroactively. (People v. Wealth (Nov. 26, 2019; B294035)
[nonpub. opn.].)
Defendant filed a petition for review with the Supreme
Court. The Supreme Court granted review and deferred further
consideration of the matter pending its disposition in People v.
Frahs (2020) 9 Cal.5th 618. After issuance of the Frahs decision
in which it concluded Penal Code section 1001.36 applies
retroactively to cases not yet final on appeal, the Supreme Court
transferred the matter back to our court with directions to vacate
our original decision and reconsider the cause in light of Frahs.
After reconsidering the parties’ arguments in light of
Frahs, we again affirmed defendant’s conviction and concluded
defendant forfeited her right to seek mental health diversion
since Penal Code section 1001.36 took effect several months
before defendant’s original sentencing in October 2018, but she
did not make any request for diversion in the trial court. (People
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v. Wealth (Oct. 21, 2020; B294035) [nonpub. opn.].) We again
reversed the three-year sentence on the great bodily injury
enhancement and remanded for a new sentencing hearing.
(Ibid.)
The resentencing hearing was held on June 11, 2021.
Defendant was present and represented by counsel. At the start
of the hearing, defendant withdrew her request for mental health
diversion. After hearing arguments from counsel, the court
sentenced defendant to seven years eight months calculated as
follows: a five-year midterm on the kidnapping count, a
consecutive eight-month term on the child detention count, a
consecutive one-year term on the assault count, plus an
additional one-year term for the bodily injury enhancement.
A restitution hearing was held on June 25, 2021. The court
ordered defendant to pay restitution in the amount of $11,567.93.
Defendant filed notices of appeal from both the
resentencing hearing and the restitution hearing. We
consolidated both appeals under case No. B313713. We also
grant defendant’s request to take judicial notice of our prior
decisions and the prior appellate record.
While this appeal was pending, the Governor signed Senate
Bill 567 (2021–2022 Reg. Sess.) and Assembly Bill 124 (2021–
2022 Reg. Sess.). Both acts, which became effective January 1,
2022, made changes to the law under which defendant was
sentenced.
DISCUSSION
We agree with the parties the changes effected by Senate
Bill 567 and Assembly Bill 124 apply retroactively to defendant’s
case as they are ameliorative in nature and therefore apply to all
nonfinal appeals. (People v. Brown (2012) 54 Cal.4th 314, 323
[discussing rule of In re Estrada (1965) 63 Cal.2d 740]; see also
People v. Banner (2022) 77 Cal.App.5th 226, 240 [concluding
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Assem. Bill 124 applies retroactively to all nonfinal appeals];
People v. Flores (2022) 73 Cal.App.5th 1032, 1038–1040
[concluding the same as to Sen. Bill 567].)
Assembly Bill 124 and Senate Bill 567 made several
fundamental changes to our determinate sentencing laws.) As
relevant here, Assembly Bill 124 created a presumption in favor
of a low term where the court finds the defendant “has
experienced psychological, physical, or childhood trauma,
including, but not limited to, abuse, neglect, exploitation, or
sexual violence” that contributed to the commission of the
offense. (Stats. 2021, ch. 695, § 5.) Penal Code section 1170,
subdivision (b)(6) now provides that “[n]otwithstanding
paragraph (1), and unless the court finds that the aggravating
circumstances outweigh the mitigating circumstances that
imposition of the lower term would be contrary to the interests of
justice, the court shall order imposition of the lower term if any of
the following was a contributing factor in the commission of the
offense: [¶] (A) The person has experienced psychological,
physical, or childhood trauma, including, but not limited to,
abuse, neglect, exploitation, or sexual violence.” (Stats. 2021,
ch. 731, § 1.3.)
The People contend nothing in the record shows defendant
suffered trauma that was a contributing factor in the kidnapping
and assault. But there was no reason for defendant to have
offered any such evidence before these amendments were
enacted. Defendant contends the record shows she reported to
the Department of Corrections and Rehabilitation that she was
placed in multiple foster homes beginning at the age of 14 after
her mother was committed to a mental hospital. We cannot rule
out the possibility that defendant could demonstrate the type of
neglect or trauma contemplated by the new legislation.
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Moreover, there is nothing in the record that clearly
indicates remand would be futile. The trial court should be given
the opportunity to exercise its discretion anew in light of the
amendments to Penal Code section 1170.
On remand, the trial court may revisit all of its sentencing
choices in light of the new legislation. (People v. Valenzuela
(2019) 7 Cal.5th 415, 424–425 [“the full resentencing rule allows
a court to revisit all prior sentencing decisions when resentencing
a defendant”]; accord, People v. Buycks (2018) 5 Cal.5th 857, 893
[“when 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 sentence is reversed in its entirety and the case is
remanded to the superior court for resentencing. At the new
sentencing hearing, the court may reconsider all of its sentencing
choices in light of the amendments to Penal Code section 1170.
Defendant has the right to be present and to be represented by
counsel. (People v. Buckhalter (2001) 26 Cal.4th 20, 34–35.)
In all other respects, the judgment of conviction is affirmed.
GRIMES, J.
WE CONCUR:
STRATTON, P. J. HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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