People v. Wealth CA2/8 ( 2020 )

Filed 10/21/20 P. v. Wealth CA2/8
Opinion following transfer from Supreme Court
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B294035
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.
Xavier Becerra, Attorney General, Lance E. Winters,
Senior Assistant Attorney General, William H. Shin, Steven D.
Matthews and Michael J. Wise, Deputy Attorneys General, for
Plaintiff and Respondent.
**********
Defendant and appellant Shebeth Wealth assaulted a social
worker during a visit with her minor son and then fled with her
son in tow. 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 (Department).
Defendant was convicted by jury of kidnapping, child detention
and assault causing great bodily injury. She was sentenced to
nine years in prison.
In our original unpublished decision filed November 26,
2019, 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.
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 (Frahs). 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,
by order dated August 19, 2020, transferred the matter to this
court with directions to vacate our original decision and
reconsider the cause in light of Frahs.
Having done so, we conclude defendant forfeited her right
to seek mental health diversion pursuant to Penal Code
section 1001.36. We again affirm defendant’s conviction, reverse
the three-year sentence on the great bodily injury enhancement
and remand for a new sentencing hearing.
2
FACTUAL AND PROCEDURAL BACKGROUND
On May 22, 2017, defendant went to Darby Park in
Inglewood for a scheduled, monitored visit with her minor son,
S.W., who was a dependent of the court. Rosita Brennan, a
Department social worker, accompanied S.W. to the visit.
Ms. Brennan was the coworker of the social worker assigned to
the case who no longer attended visits because defendant had
verbally threatened her with harm, resulting in the issuance of a
restraining order. Ms. Brennan had monitored about eight of
defendant’s visits with S.W. before that day.
Defendant arrived late to the visit accompanied by her
teenage daughter, H.W., who was also a dependent child, but
H.W. had run away from her placement. For about 20 minutes or
so, S.W. played on the playground while defendant sat on a bench
talking with H.W. At some point, she appeared to be on a phone
call with another family member who lived out of state.
Ms. Brennan attempted to reach her supervisor to alert her to the
fact that H.W. was at the visit and to ask how she should handle
the situation.
Ms. Brennan was told to attempt to interview H.W. and ask
her if she wanted to “return to the Department to receive
services.” H.W. declined. Defendant reacted angrily to
Ms. Brennan’s attempt to speak with H.W. Ms. Brennan headed
into the community center at the park to attempt to reach her
supervisor again on the phone. Defendant followed her inside
and continued yelling at her. Ms. Brennan was instructed by her
supervisor to terminate the visit. Ms. Brennan told defendant
she was terminating the visit on the instruction of her supervisor
and then took S.W. by the hand and started to leave.
3
Defendant became very angry, was yelling profanities and
screamed for H.W., saying Ms. Brennan was terminating the
visit. H.W. ran over from the vending machines and tried to pull
her brother away from Ms. Brennan and also punched
Ms. Brennan several times in the face and neck. Ms. Brennan
yelled for assistance and asked for someone to call the police.
Defendant grabbed Ms. Brennan by her hair and “slammed” her
head into the wall. Ms. Brennan fell backwards onto the floor in
great pain.
Arrick Turner, a senior recreation supervisor at the park,
heard angry voices in the lobby of the community center. He was
standing just outside the open door and did not see what started
the argument. As he stepped inside the lobby to see what was
going on, Mr. Turner saw defendant swing at Ms. Brennan, who
was in a defensive posture. Ms. Brennan’s glasses were knocked
from her face.
Mr. Turner told a staff member, Javon Davis, to intervene
as he went to call the police. Mr. Davis ran over and saw
defendant repeatedly hitting Ms. Brennan’s head and face with
her fist as Ms. Brennan lay on the floor. Ms. Brennan was
screaming for help. Mr. Davis intervened and stopped the
assault. At that point, he noticed defendant had a shoe “with a
pretty thick heel” in one of her hands.
After calling 911, Mr. Turner joined Mr. Davis standing
near the two women. Ms. Brennan was on the floor. She had a
“knot” on her head and someone had gotten her an icepack. She
also had blood on her face. Mr. Turner heard H.W. tell defendant
“don’t take him,” but defendant responded “let’s go” and left with
both H.W. and S.W. Ms. Brennan was treated by paramedics and
taken to the hospital.
4
Defendant was arrested that night at her home. S.W. was
found inside the home and returned to the custody of the
Department.
Defendant was charged with kidnapping (Pen. Code, § 207,
subd. (a); count 1), child detention (§ 278.5; count 2), and assault
by means of force likely to cause great bodily injury (§ 245,
subd. (a)(4); count 3). It was alleged as to count 3 that defendant
caused the victim great bodily injury in the commission of the
offense (§ 12022.7, subd. (a)).
The case proceeded to a jury trial in May 2018.
Ms. Brennan, Mr. Turner, Mr. Davis and another Department
social worker attested to the above facts.
Defendant testified that she and H.W. were playing with
S.W. and enjoying their visit when Ms. Brennan told her she
needed to speak with H.W. Ms. Brennan told defendant that if
she refused to allow her to speak with her daughter, then she
would have to terminate her visit with S.W. Defendant asked her
daughter to please speak with Ms. Brennan and H.W. agreed.
Ms. Brennan accused H.W. of being a prostitute, so H.W. stopped
talking. Defendant suggested they all go inside the community
center where they could have more privacy. Defendant denied
being angry with Ms. Brennan or yelling at her.
At some point while they were inside, Ms. Brennan
received a text message, then got up and “snatched” S.W. out of
his chair, causing him to cry, and started to leave. Defendant
told Ms. Brennan that was not the proper way to end the visit to
which Ms. Brennan replied, “Don’t make me call the police.”
H.W. tried to block Ms. Brennan from leaving, telling her she
should not be dragging her brother like that and Ms. Brennan
pushed H.W. out of the way twice. H.W. and Ms. Brennan
5
started to take swings at each other and defendant tried to
intervene but Ms. Brennan pushed her out of the way. One of
H.W.’s punches caused Ms. Brennan to fall to the floor. She did
not believe there was anything wrong with Ms. Brennan.
Defendant denied hitting Ms. Brennan or grabbing her head and
pushing her into a wall. Defendant left with H.W. and S.W. and
took them back to her home. Defendant explained she did not
take S.W. to the Department office after leaving the park because
it was too late and the office was already closed. Defendant said
she planned on calling her attorney and taking S.W. back to the
office in the morning. Defendant also said she could not call
anyone from the park or on the way home because the battery on
her phone had died.
H.W. testified she had been playing with her brother when
Ms. Brennan, acting “very rude,” asked her if she was defendant’s
daughter, H.W. She said yes and noticed Ms. Brennan giving her
mother “dirty looks.” Ms. Brennan then made numerous phone
calls and abruptly announced the visit was over. Ms. Brennan
grabbed S.W.’s arm “aggressive[ly]” and started to pull him away,
and he began to cry. H.W. leaned down to say goodbye to her
brother and Ms. Brennan shoved her twice. H.W. thought
Ms. Brennan was going to hit her so she hit her first and they
struggled for a bit. Ms. Brennan hit H.W. many times, but H.W.
was able to hit her back at least once and then Ms. Brennan
“fainted” and fell to the floor. H.W. said her mother never hit
Ms. Brennan, but only tried to intervene and push Ms. Brennan
away.
The jury found defendant guilty as charged and found true
the great bodily injury allegation. The court sentenced defendant
to state prison for nine years, calculated as follows: a midterm of
6
five years on count 1, a concurrent midterm of two years on
count 2, a consecutive one-year term on count 3 (one-third the
midterm), and a consecutive three-year term for the great bodily
injury enhancement on count 3. The court awarded defendant
592 days of presentence custody credits.
Without objection from defendant, the court imposed
statutory fees and assessments: $120 court operation
assessment, $90 criminal conviction assessment and
$300 restitution fine. The court imposed and stayed a $300
parole revocation fine. Also without objection from defendant,
the court imposed a three-year protective order pursuant to Penal
Code section 136.2, subdivision (i)(1). Ms. Brennan and S.W.
were identified as the protected persons.
Following remand from the Supreme Court, both defendant
and respondent submitted supplemental briefing addressing the
issue of whether defendant is entitled to a conditional reversal
and remand to allow the trial court to conduct an eligibility
hearing pursuant to Penal Code section 1001.36.
DISCUSSION
1. Mental Health Diversion
Penal Code section 1001.36 became effective June 27, 2018,
some four months before defendant was sentenced on October 19,
2018. It authorizes the diversion of certain alleged offenders into
mental health treatment programs in lieu of criminal
prosecution. (§ 1001.36, subd. (a) [court may “grant pretrial
diversion to a defendant pursuant to this section if the defendant
meets all of the requirements specified in paragraph (1) of
subdivision (b)”].)
Frahs concluded that Penal Code section 1001.36 applies
retroactively because it mitigates the possible punishment for a
7
specific class of offenders with certain enumerated mental health
conditions and there is no clear contraindication of legislative
intent. (Frahs, supra, 9 Cal.5th at pp. 630-637; see also In re
Estrada (1965) 63 Cal.2d 740, 742-748 [an amendatory statute
lessening punishment for a crime is presumptively retroactive,
absent clear legislative intent for prospective application, and
applies to all defendants whose judgments are not final at the
time the statute becomes effective].)
Defendant argues she is entitled to the benefit of the
amendatory provision and a conditional reversal and remand to
allow the opportunity for an eligibility hearing.
We find the contention has been forfeited. (People v. Scott
(1994) 9 Cal.4th 331, 354 [general rule is “that only those claims
properly raised and preserved by the parties are reviewable on
appeal”].) Not only did Penal Code section 1001.36 take effect
several weeks before the initial sentencing hearing in this matter
on July 9, 2018, but the issue of defendant’s mental health was
squarely before the court from that date until October 19, 2018,
when defendant was eventually sentenced. At no time during
this period did defendant make any request for mental health
diversion.
In her sentencing memorandum, defendant requested the
court impose probation but did not specifically mention any
mental health issues. The probation report recommended a state
prison sentence, explaining that defendant’s violent acts and the
seriousness of the victim’s injuries did not support an order of
probation.
At the outset of the July 9, 2018 hearing, the trial court
stated the case was both “serious” and “puzzling” and noted its
tentative was to order a diagnostic evaluation of defendant
8
pursuant to Penal Code section 1203.03. (Id., subd. (a) [“the
court, if it concludes that a just disposition of the case requires
such diagnosis and treatment services as can be provided at a
diagnostic facility of the Department of Corrections, may order
that defendant be placed temporarily in such facility for a period
not to exceed 90 days, with the further provision in such order
that the Director of the Department of Corrections report to the
court his diagnosis and recommendations concerning the
defendant within the 90-day period”].)
No party objected to the court’s tentative and the court
ordered defendant transferred temporarily to a diagnostic facility
at the California Department of Corrections and Rehabilitation
for a period not to exceed 90 days for an evaluation to be
conducted in accordance with Penal Code section 1203.03,
subdivision (a). The court scheduled a return date of October 19,
2018.
The report provided by the Department of Corrections and
Rehabilitation recommended defendant be sentenced to prison,
finding defendant not suitable for supervision on probation. The
evaluator recounted defendant’s refusal to show remorse, her
insistence she did nothing wrong and was in fact “set up” by the
Department of Children and Family Services, her demonstrated
lack of impulse control, and her repeated attempts to contact her
minor son in violation of the court’s protective order. The
evaluator stated defendant “presents as an individual who may
re-offend in a similar nature” especially in light of her “lack of
insight into her behaviors and focus on retribution.” The report
noted defendant presented with an “elevated mood” and
“significant grandiosity” and would likely benefit from receiving
mental health services in prison.
9
When the parties returned to court on October 19, 2018,
some four months after Penal Code section 1001.36 took effect,
defendant continued to urge the court to sentence defendant to
probation but did not make any specific request for further
mental health evaluation or for diversion under the four-month-
old statute. We think it is plain the contention has been
forfeited.
2. The Sentence on Count 2
The trial court imposed a concurrent sentence on count 2.
Defendant contends the trial court’s failure to stay the sentence
violates the proscription against multiple punishment set forth in
Penal Code section 654. We disagree.
“Whether a defendant may be subjected to multiple
punishment under [Penal Code] section 654 requires a two-step
inquiry . . . . We first consider if the different crimes were
completed by a ‘single physical act.’ [Citations.] If so, the
defendant may not be punished more than once for that act.
Only if we conclude that the case involves more than a single
act—i.e., a course of conduct—do we then consider whether that
course of conduct reflects a single ‘ “intent and objective” ’ or
multiple intents and objectives. [Citations.] At step one, courts
examine the facts of the case to determine whether multiple
convictions are based upon a single physical act. [Citation.]
When those facts are undisputed—as they are here—the
application of section 654 raises a question of law we review de
novo.” (People v. Corpening (2016) 2 Cal.5th 307, 311-312
(Corpening).)
Defendant asserts that count 1 (kidnapping) and count 2
(child detention) were completed by a single act—the act of
10
leaving the park with S.W.—and that act can only be punished
once. The argument lacks merit.
Defendant engaged in a course of conduct, not a single act,
involving two different victims. (See, e.g., In re Michele D. (2002)
29 Cal.4th 600, 614.) Defendant kidnapped S.W. in violation of
Penal Code section 207 by absconding with him from the park
after her violent assault on the social worker. Defendant then
withheld and concealed S.W. within her home, depriving the
Department of its lawful custody of the minor child, for the
remainder of that day until her arrest that night in violation of
section 278.5. The statute expressly prohibits not only the taking
away of a child, but also the separate acts of keeping, withholding
and concealing a child to deprive the lawful custodian of the right
of custody. (See, e.g., People v. Lazarevich (2001) 95 Cal.App.4th
416, 423.)
This case is readily distinguishable from Corpening. There,
the defendant was found guilty of robbery and carjacking a
vehicle that contained several valuable, rare coins. (Corpening,
supra, 2 Cal.5th at p. 315.) The single act of forcefully taking the
car containing the rare coins completed both the carjacking and
the robbery and therefore Corpening concluded that Penal Code
section 654 required a stay of the sentence on the robbery count.
(Corpening, at pp. 315-316.) Defendant committed several
criminal acts here, and Penal Code section 654 does not apply.
3. The Protective Order
The trial court imposed a three-year protective order at the
time of sentencing pursuant to Penal Code section 136.2,
subdivision (i)(1). Both Ms. Brennan and S.W. are identified as
protected persons in the order. Defendant challenges only the
inclusion of her minor son, S.W., in the scope of the order.
11
Defendant did not object to the trial court issuing the
protective order as to S.W. The court issued the protective order
under Penal Code section 136.2, subdivision (i)(1). That statute
permits a court to impose a protective order for up to 10 years
“[i]n all cases in which a criminal defendant has been convicted of
a crime involving domestic violence as defined . . . in Section 6211
of the Family Code.” (Pen. Code, § 136.2, subd. (i)(1), italics
added.) Family Code section 6211, subdivision (e) includes in the
definition of domestic violence abuse perpetrated against “a child
of a party.” The kidnapping and child detention crimes were
abuses perpetrated against defendant’s child, and they involved
domestic violence. Not only did defendant abuse S.W. by
kidnapping and detaining him, she further abused S.W. by
smashing the social worker’s head against the wall and viciously
beating her in his presence.
4. Remand for Resentencing Is Warranted
Respondent concedes defendant’s claim of error with
respect to the three-year sentence imposed on the great bodily
injury enhancement on count 3.
We agree the three-year sentence on the enhancement is an
unauthorized sentence. The court imposed a consecutive one-
year sentence on count 3 (one-third the midterm) in accordance
with Penal Code section 1170.1, subdivision (a). However, the
court applied the full three-year term, instead of one-third of the
term for the enhancement. Section 1170.1, subdivision (a)
requires that a one-third term be imposed on a specific
enhancement attached to a subordinate offense. (See, e.g., People
v. Sasser (2015) 61 Cal.4th 1, 15-17.)
The three-year term on the enhancement is reversed and
we remand for a new sentencing hearing at which the court may
12
assess its sentencing choices anew. We express no opinion on
how the court should exercise its discretion on remand.
Finally, defendant, citing People v. Dueñas (2019)
30 Cal.App.5th 1157, requests remand and an opportunity to
argue her alleged inability to pay the statutory fines and fees
imposed at sentencing. Defendant failed to object to the
imposition of these statutorily authorized fees at the time of
sentencing and has therefore forfeited the argument on appeal.
However, respondent does not object to defendant being allowed
the opportunity to raise the argument before the trial court on
remand.
DISPOSITION
The judgment of conviction is affirmed.
The three-year sentence on the great bodily injury
enhancement on count 3 is reversed. We remand for a new
sentencing hearing. Defendant has the right to be present and to
be represented by counsel. (People v. Buckhalter (2001)
26 Cal.4th 20, 34-35.)
Following resentencing, the superior court is directed to
prepare and transmit a new abstract of judgment to the
Department of Corrections and Rehabilitation.
GRIMES, J.
I CONCUR:
BIGELOW, P. J.
13
STRATTON, J., Concurring and Dissenting.
There one issue upon which I add a different perspective.
The sentencing here implicates Justice Moreno’s comment in
In re Michele D. (2002) 29 Cal.4th 600, 614. That case held that
kidnapping an unresisting infant or child requires proof that the
defendant moved the victim, not forcibly, but for an illegal
purpose or with an illegal intent. Defendant there had argued
that her conduct did not constitute kidnapping but at most child
abduction under Penal Code section 278. (Id. at p. 613.) Writing
for the majority, Justice Moreno stated: “There is a fundamental
difference between kidnapping and child abduction in terms of
the person targeted by the offense; the first is a crime against the
person being kidnapped, the second against the parents of the
child abducted. If there is evidence that a defendant’s conduct is
aimed at both, there is no reason why he or she should not be
prosecuted under both statutes.” (Id. at p. 614.) “Defendants
would be free to argue that punishment under both statutes
violates Penal Code section 654’s proscription against dual
punishment.” (Id. at p. 614, fn. 6, italics added.)
This case presents the scenario Justice Moreno was talking
about and I conclude Penal Code section 654 requires the trial
court to stay the sentence on count 2. Penal Code section 654
prevents multiple punishments for a single act or omission or an
indivisible course of conduct. (People v. Miller (1977) 18 Cal.3d
873, 885.) This is so even though the act or omission violates
more than one statute and thus constitutes more than one crime.
(People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) Imposition of
concurrent sentences, as here, is precluded by Penal Code
section 654 because the defendant is deemed to be subjected to
1
the term of both sentences although they are served
simultaneously. (In re Wright (1967) 65 Cal.2d 650, 654–655.)
Whether a defendant may be subjected to multiple
punishments requires a two-step inquiry. First, we consider if
the different crimes were completed by a single physical act. If
so, the defendant may not be punished more than once for that
act. Only if the case involves more than a single act, that is, an
indivisible course of conduct, does the court then consider
whether that course of conduct reflects a single intent and
objective or multiple intents and objectives. (People v. Corpening
(2016) 2 Cal.5th 307, 311–312.)
Here, witness Arrick Turner, one of the men who broke up
the fight, succinctly summed up the act: “[S]he took her son and
left.” Javon Davis, the other non-party eyewitness to the fight,
testified similarly: “I recall a young lady grabbing the child and
they left.” The two separate crimes, kidnapping and child
abduction, were completed when appellant did exactly the same
thing at the same time—carrying the child away from the
custodial adult.1 There is no need to proceed to the second step of
the inquiry. The sentence on count 2 should have been stayed.
On this, I dissent.
STRATTON, J.
1 “Every person who . . . steals or takes, or holds, detains, or
arrests any person in this state, and carries the person into
another country, state, or county, or into another part of the same
county, is guilty of kidnapping.” (Pen. Code, § 207, subd. (a).)
“Every person, not having a right to custody, who maliciously
takes, entices away, keeps, withholds, or conceals any child with
the intent to detain or conceal that child from a lawful custodian”
is guilty of child abduction. (Pen. Code, § 278.)
2