People v. Shannon CA2/1

Filed 1/31/23 P. v. Shannon CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE
THE PEOPLE, B317574
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA104786)
v.
DANIEL L. SHANNON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Kathryn A. Solorzano, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Miriam K. Billington, 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, Wyatt E. Bloomfield and John Yang, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________________
Daniel Shannon appeals from a judgment entered after a
jury found him guilty of (1) elder abuse with personal use of a
deadly weapon and (2) assault with a deadly weapon, a rake. In
a sentencing memorandum filed before the sentencing hearing,
Shannon asserted he had a “significant history of childhood
trauma that may have contributed to his crime,” and he detailed
such history. The trial court imposed what it described as a
presumptive middle term sentence of three years for the elder
abuse, plus one year for the weapon enhancement. The court
imposed and stayed the middle term sentence of three years for
the assault with a deadly weapon.
Shannon contends and the Attorney General concedes the
matter must be remanded for a new sentencing hearing in light
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of Penal Code section 1170, subdivision (b)(6), a statutory
provision that became effective a few days after Shannon was
sentenced and provides for a presumptive lower term sentence
where a defendant “has experienced psychological, physical, or
childhood trauma” which “was a contributing factor in the
commission of the offense.” We agree. Although the record
shows the trial court was aware of a recent bill that was signed
into law that amended section 1170, the record also indicates the
trial court was unaware of this particular amendment to section
1170 at the time it sentenced Shannon; and the record does not
indicate the court would have imposed a middle term sentence if
it had considered the matter under section 1170, subdivision
(b)(6).
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Undesignated statutory references are to the Penal Code.
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BACKGROUND
I. The Offenses
The victim and his wife owned a triplex apartment
building. Two of their tenants reported that people had pitched
tents next to the driveway, and the tenants were afraid of the
occupants of the tents. On June 24, 2021, the victim, who was
then 81 years old, drove to the property to assess the situation.
Once there, he approached a woman and a man in a tent and told
them they had to leave the area. The woman walked away, and
the man closed the entrance to the tent.
Thereafter, the victim had a physical confrontation with
another tent dweller whom the victim identified at trial as
defendant Shannon. The victim could not remember at trial how
the confrontation unfolded, but the prosecutor played for the jury
videos of the event, and the victim testified to what he
remembered. The videos showed the victim and Shannon
talking. Shannon pushed the victim, and the victim told
Shannon he had committed an assault. Shannon said to the
victim, “ ‘Get out of here,’ ” and he pushed the victim again,
causing the victim’s shoe to come off his foot.
The victim retrieved his cell phone and began filming so he
could show his wife the scene and identify the person who had
assaulted him. Shannon reached for the phone and the victim
dropped it. Then, Shannon picked up a rake and repeatedly
struck the victim on his head, shin, back, and hand, while hurling
insults at the victim. One of the victim’s tenants called the
police. As a result of this incident, the victim suffered an injured
finger and knee, gashes on his knee and hand, a bruise on his
arm, red marks on his face and back, puncture marks on his
shoulder, wounds on his arm and shin, pain in his head, and
hearing loss.
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An information, filed September 2, 2021, charged Shannon
with one count of elder abuse (§ 368, subd. (b)(1)) and alleged
Shannon personally used a deadly and dangerous weapon, a
rake, in the commission of the elder abuse (§ 12022, subd. (b)(1)).
The information also charged Shannon with one count of assault
with a deadly weapon, the rake. (§ 245, subd. (a)(1).)
II. Relevant Amendments to Section 1170
On October 8, 2021, before Shannon’s trial, the Governor
signed Assembly Bill No. 124 (2021-2022 Reg. Sess.; Stats. 2021,
ch. 695, § 5), Assembly Bill No. 1540 (2021-2022 Reg. Sess.; Stats.
2021, ch. 719, § 2), and Senate Bill No. 567 (2021-2022 Reg. Sess.;
Stats. 2021, ch. 731, § 1.3) into law. The three bills amended
section 1170, effective January 1, 2022. Senate Bill No. 567 was
enacted last, and it incorporated Assembly Bill No. 124’s and
Assembly Bill No. 1540’s amendments to section 1170. (See
Stats. 2021, ch. 731, § 3(c).) Thus, Senate Bill No. 567 became
the operative legislation, and we will refer to it when referencing
applicable amendments to section 1170. (See Gov. Code, § 9605,
subd. (b).)
Relevant here, Senate Bill No. 567 added current
subdivision (b)(6) to section 1170, which provides in pertinent
part: “Notwithstanding paragraph (1) [directing that the court
impose a sentence not to exceed the middle term of a sentencing
triad except as provided in subdivision (b)(2)], 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
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trauma, including, but not limited to, abuse, neglect, exploitation,
or sexual violence. . . .”
Senate Bill No. 567 also added current subdivision (b)(2) to
section 1170, referenced above, which provides in pertinent part:
“The court may impose a sentence exceeding the middle term
only when there are circumstances in aggravation of the crime
that justify the imposition of a term of imprisonment exceeding
the middle term, and the facts underlying those circumstances
have been stipulated to by the defendant, or have been found true
beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.”
III. Verdicts and Sentencing
The jury found Shannon guilty of elder abuse and found
true the special allegation that in the commission of the elder
abuse Shannon personally used a deadly and dangerous weapon.
The jury further found Shannon guilty of assault with a deadly
weapon, a rake.
The district attorney filed a sentencing memorandum,
urging the trial court to sentence Shannon to four years in state
prison, the middle term of three years for the elder abuse, plus
one year for the weapon enhancement. The district attorney
asserted there were no factors in mitigation but there were
factors in aggravation, including factors related to the offenses
(e.g., that the victim was particularly vulnerable) and factors
related to Shannon’s criminal history.
Defense counsel filed a sentencing memorandum, asking
the trial court to consider certain factors in mitigation when
sentencing Shannon, including that “Shannon has a significant
history of childhood trauma that may have contributed to his
crime.” Counsel set forth a one-page description of such history
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in the memorandum, including that Shannon witnessed the
death of his 15-year-old sister when he was five years old and
sometime thereafter was placed in a mental health institution
until he turned 18. Counsel did not propose in the sentencing
memorandum that the trial court impose a particular sentence.
In the sentencing memoranda, neither side referenced the
recently enacted, but not yet effective, bills that amended section
1170.
The sentencing hearing was held on December 27, 2021, a
few days before the amendments to section 1170 referenced above
became effective. At the outset of the hearing, the trial court
mentioned Senate Bill No. 567, and referenced amended
subdivisions (b)(1) and (b)(2) of section 1170, which set forth the
circumstances when a court may impose a sentence that exceeds
the middle term. After an exchange with the prosecutor about
the meaning of these statutory provisions, the court commented:
“[T]he way I read all of this is that presumptively the court is to
begin with the middle term if the court is going to impose prison
or is thinking about prison.” Defense counsel cited to the court
subdivision (b)(5) of section 1170, which prohibits a court from
imposing “an upper term by using the fact of any enhancement
upon which sentence is imposed under any provision of law.”
This statutory language preceded the amendments to section
1170 at issue here.
The trial court read a statement from the victim. Then, the
court discussed Shannon’s criminal history and commented that
his time in custody in jail and prison for prior convictions did not
“deter [further] criminal conduct.” The court reiterated its belief
that “the midterm is the appropriate starting point” in imposing
Shannon’s sentence. The court explained it did not find any
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factors in aggravation that would warrant imposition of an upper
term sentence.
The trial court stated it would “hear from [defense counsel]
with regard to the low term” and whether the court should
impose the one-year term for the weapon enhancement. Defense
counsel highlighted the information in Shannon’s sentencing
memorandum regarding Shannon’s history of “childhood
trauma,” and argued: “So I would ask the court to impose the low
term, if the court is going to deny probation, just based on using
the other factors from his pretty significant history of childhood
trauma.” Neither defense counsel nor anyone else referenced
newly enacted subdivision (b)(6) of section 1170, which, as
discussed above, provides for a presumptive lower term sentence
where a defendant “has experienced psychological, physical, or
childhood trauma” which “was a contributing factor in the
commission of the offense.”
After reviewing the circumstances of the offenses on the
record, the trial court stated: “Based on [Shannon’s criminal]
record that I have already read into the record here and the
objectives of sentencing, even considering what you [defense
counsel] had to say about his -- any mitigating circumstances, the
court is going to sentence him to the midterm in this case.”
Accordingly, the court sentenced Shannon to the middle term
sentence of three years for the elder abuse, plus one year for the
weapon enhancement, for a total of four years. The court
imposed and stayed a concurrent middle term sentence of three
years for the assault with a deadly weapon.
DISCUSSION
Shannon contends and the Attorney General concedes that
the matter must be remanded for a new sentencing hearing, so
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the trial court may consider the matter in light of section 1170,
subdivision (b)(6), which provides in pertinent part:
“Notwithstanding paragraph (1) [directing that the court impose
a sentence not to exceed the middle term of a sentencing triad
except as provided in subdivision (b)(2)], 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. . . .”
As set forth above, less than three months before Shannon’s
sentencing hearing, the Governor signed into law Senate Bill No.
567, which added subdivision (b)(6) to section 1170, effective
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January 1, 2022 (a few days after the hearing). The trial court
referenced Senate Bill No. 567 during the sentencing hearing, but
there is no indication the court was aware of the new subdivision
(b)(6). Although the court acknowledged Shannon’s assertions
that his childhood trauma was a mitigating factor, the court
interpreted subdivisions (b)(1) and (b)(2) of section 1170 to mean
that the middle term was the presumptive “starting point” in
2
The parties agree that these amendments to section 1170
apply retroactively to nonfinal judgments. (See People v. Garcia
(2022) 76 Cal.App.5th 887, 902 [“We agree with the parties the
changes effected by the new legislation [specifying Senate Bill
No. 567 and Assembly Bill No. 124] apply retroactively to
defendant’s case as they are ameliorative in nature and therefore
apply to all nonfinal appeals”].)
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imposing Shannon’s sentence. There is no indication the court
considered whether Shannon’s asserted childhood trauma was a
contributing factor in the commission of the offenses.
As our Supreme Court has explained: “ ‘Defendants are
entitled to sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court. [Citations.] A
court which is unaware of the scope of its discretionary powers
can no more exercise that “informed discretion” than one whose
sentence is or may have been based on misinformation regarding
a material aspect of a defendant's record.’ [Citation.] In such
circumstances, we have held that the appropriate remedy is to
remand for resentencing unless the record ‘clearly indicate[s]’
that the trial court would have reached the same conclusion ‘even
if it had been aware that it had such discretion.’ ” (People v.
Gutierrez (2014) 58 Cal.4th 1354, 1391.)
We cannot conclude the trial court would have sentenced
Shannon to the middle term if it had considered the matter in
light of section 1170, subdivision (b)(6). The court gave no
indication that it rejected Shannon’s claim of childhood trauma or
believed that trauma was not a contributing factor in the
commission of the offenses. And the court stated it found no
aggravating circumstances. Thus, the record does not indicate
the court would have declined to impose the lower term if it had
been aware of the lower term presumption in section 1170,
subdivision (b)(6) for a defendant who has experienced childhood
trauma that was a contributing factor in the commission of the
offense. Accordingly, we remand the matter for a new sentencing
hearing.
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DISPOSITION
The matter is remanded for a new sentencing hearing at
which the trial court shall satisfy its statutory obligations under
section 1170, subdivision (b)(6). In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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