People v. Garth CA1/1 ( 2022 )

Filed 5/12/22 P. v. Garth CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A164094
v.
ARIANA IRISHA GARTH, (Napa County
Super. Ct. No.
Defendant and Appellant.
21CR002337)
After defendant Ariana Irisha Garth pleaded no contest to evading a
peace officer, grand theft, and resisting arrest, the trial court sentenced her
to two years in state prison. Her sole contention on appeal is that she is
entitled to resentencing under the recently enacted ameliorative amendments
to Penal Code section 1170. The People agree.
We accept the Attorney General’s concession, vacate defendant’s
sentence, and remand for resentencing in light of amended Penal Code
section 1170, subdivision (b). In all other respects, we affirm.
BACKGROUND
In October 2021, then 20-year-old Ariana Garth entered a Sunglasses
Hut with two associates. The three proceeded to fill bags with approximately
$30,000 of merchandise and fled the store without paying. They left in an
1
SUV that defendant was driving, and defendant led police on a high-speed
chase.
The district attorney filed a complaint alleging one count of felony
evading a police officer (Veh. Code, § 2800.2, subd. (a)), one count of felony
grand theft (Pen. Code, § 487, subd. (a))1 and one count of misdemeanor
resisting arrest (§ 148, subd. (a)(1)). Defendant pleaded no contest.
At the November 2021 sentencing hearing, defense counsel asked the
court to consider the low term and refer defendant to probation citing two
“ameliorative sentencing statutes” that would amend section 1170 and would
be applicable to defendant as she was “under the age of 26” and because of
the “childhood turmoil and trauma” she has suffered.
The court weighed defendant’s youth and “any hardships that she’s had
since a child” against her prior history on probation, and the “fact that she
led law enforcement on a high-speed [chase],” among other factors, and
sentenced defendant to two years in prison consisting of the midterm of two
years for the evading a peace officer count and the low term of 16 months to
be served concurrently for the grand theft count. However, the court noted
that in the event “there’s an Appellate Court ruling or if there’s a bill that
does pass, and I’m required to take a second look at this case, I will do so.”
DISCUSSION
Approximately one month later, such events came to pass, as “Effective
January 1, 2022, our determinate sentencing law, section 1170, was amended
in several fundamental ways. (See Sen. Bill No. 567 (2020–2021 Reg. Sess.);
Stats. 2021, ch. 731, § 1.3; Assem. Bill No. 124 (2020–2021 Reg. Sess.); Stats.
2021, ch. 695, § 5.)” (People v. Flores (2022) 73 Cal.App.5th 1032, 1038
1All further statutory references are to the Penal Code unless
otherwise indicated.
2
(Flores).) As the court in Flores explained, these bills amended section 1170,
former subdivision (b) “by making the middle term the presumptive sentence
for a term of imprisonment unless certain circumstances exist. (Stats. 2021,
ch. 731, § 1.3, adding Pen. Code, § 1170, subd. (b)(1), (2)),” and by creating “a
presumption in favor of a low prison term when a defendant is under 26
years of age at the time of the offense. (Stats. 2021, ch. 695, § 4, adding Pen.
Code § 1016.7; Stats 2021, ch. 695, § 5.1, adding Pen. Code § 1170, subd.
(b)(6)(B).)” (Flores, at p. 1038, fn. omitted.)
The “amended version of section 1170, subdivision (b) that became
effective on January 1, 2022, applies retroactively . . . as an ameliorative
change in the law applicable to all nonfinal convictions on appeal.” (Flores,
supra, 73 Cal.App.5th at p. 1039.) Relevant here, section 1170, subdivision
(b)(6) now provides: “[U]nless the court finds that the aggravating
circumstances outweigh the mitigating circumstances that imposition of the
lower 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. [¶] (B) The person is a youth,
or was a youth as defined under subdivision (b) of Section 1016.7 at the time
of the commission of the offense.” (§ 1170, subd. (b)(6)(A), (B); see § 1016.7,
subd. (b) [“A ‘youth’ for purposes of this section includes any person under 26
years of age on the date the offense was committed”].)
Here, the judgment was not yet final, defendant was under the age of
26 when she committed the crimes in question, and although defense counsel
was not certain of the extent of defendant’s childhood trauma, he asserted
3
she had a “very complicated relationship with her family; that her mother
had used drugs, and that there were family issues.”
Accordingly, we agree with the parties and conclude defendant is
entitled to a new sentencing hearing under the newly amended version of
section 1170, subdivision (b). (In re Estrada (1965) 63 Cal.2d 740, 745,
disapproved on another ground as stated in Californians for Disability Rights
v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 230; Flores, supra, 73 Cal.App.5t at
p. 1039.)
DISPOSITION
The sentence is vacated, and the matter is remanded to the trial court
for resentencing under the amendatory version of section 1170, subdivision
(b)(6). In all other respects, the judgment is affirmed.
4
_________________________
Banke, J.
We concur:
_________________________
Humes, P.J.
_________________________
Wiss, J.*
*Judge of the San Francisco Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
A164094, People v. Garth
5