People v. Shaw CA2/8

Filed 5/19/22 P. v. Shaw CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B312145
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA480942-01)
v.
SHALONDA C. SHAW,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Laura F. Priver and Karla D. Kerlin, Judges.
Affirmed in part and remanded with direction.
Robert F. Somers, 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, Zee Rodriguez and Charles Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
Shalonda Christine Shaw was convicted of simple mayhem
(Pen. Code,1 § 203) for causing severe burns to Jose Estrada’s left
leg; the jury found true the allegation that she personally used a
deadly or dangerous weapon (gasoline) in the commission of the
mayhem (§ 12022, subd. (b)(1)). The attack occurred while
Estrada was sitting outside his tent in a homeless encampment,
and may have involved a dispute over narcotics sales. After
initially finding appellant “marginally” suitable for placement
through the Office of Diversion and Reentry (ODR), the ODR
court continued its hearing to receive additional information from
the victim, and found appellant not suitable for placement in an
ODR program. The trial court then sentenced appellant to the
mid-term of four years for the mayhem conviction plus a
consecutive one-year term for the deadly or dangerous weapon
enhancement.
Appellant appeals, contending the trial court abused its
discretion in denying ODR placement. In a supplemental brief,
she contends the matter must be remanded for resentencing in
light of Assembly Bill No. 124 (2021–2022 Reg. Sess.) (Assembly
Bill 124), which changed the presumptive mid-term sentence to
the low-term sentence for certain offenders, effective January 1,
2022. (Stats. 2021, ch. 695, § 5.3.) We see no abuse of discretion
in the trial court’s decision that appellant was not suitable for
ODR. We agree the matter must be remanded for resentencing
in light of Assembly Bill 124. In all other respects, we affirm the
judgment of conviction.
1 Undesignated statutory references are to the Penal Code.
2
BACKGROUND
On September 5, 2019, Jose Estrada was sitting outside his
tent in an encampment along the railroad tracks near the
intersection of Slauson and Western Avenue in Los Angeles. He
was smoking marijuana with two women. Appellant walked
toward and then past them. She appeared angry. She had
previously told Estrada to stop selling drugs in the encampment.
Appellant returned five to ten minutes later, carrying a
gallon of liquid. She poured some of the liquid on Estrada’s lower
left leg. Estrada believed she tossed some of the liquid toward
his head, and he raised his arms to protect his face. The liquid
splashed on his wrist and forearm. Estrada smelled gasoline,
then looked down and saw his leg, wrist and fingers were on fire.
Estrada ran and threw himself onto a patch of dirt in an attempt
to put out the fire. Estrada did not see appellant holding a match
or lighter.
Estrada suffered third degree burns on his left leg that
required multiple surgeries and a skin graft. At the time of trial,
he was unable to extend his left leg fully and was frequently out
of breath due to damage to his lungs from smoke inhalation.
A criminalist for the Los Angeles County Sheriff’s
Department determined that a gallon container and some
clothing found at the crime scene contained gasoline. An arson
investigator for the Los Angeles County Fire Department
testified that a lit cigarette cannot ignite gasoline vapors due to
the structure of the cigarette.
During trial, the prosecutor played recordings of two
outgoing phone calls made by appellant from jail. In a November
8, 2019 call, appellant admitted pouring gasoline on Estrada, but
claimed that she did not light the gasoline on fire. She indicated
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Estrada had told her she could not sell drugs in the area and she
had been selling drugs there since she was 10 years old. She also
stated her belief that Estrada had cut her brother on the face and
so she had been looking for him. In a March 5, 2020 call,
appellant stated it looked like she was going to “beat the case”
because the prosecution could not locate its witnesses. She said
the prosecution had “built a case around a crystal head witness
they can’t find, but they not ever gonna find her because my
cousins are not going to let that girl testify against me. So I ain’t
worried about it.”
The jury acquitted appellant of the charged offenses of
attempted murder, aggravated mayhem and arson causing great
bodily injury, but convicted her of the lesser offense of simple
mayhem. The jury also found appellant used a deadly and
dangerous weapon to commit the offense.
Following appellant’s conviction, the Office of Diversion
and Reentry (ODR) filed an affidavit recommending that
appellant be placed in its intensive case management services
program. The trial court found appellant might be suitable for
placement in the ODR housing program, and transferred the
matter to Department 44/644, the ODR court, for a determination
of her suitability.
The ODR court held a hearing on December 2, 2020. The
prosecutor contended that although appellant had been found
eligible for ODR, she was not suitable for it due to the nature of
her offense, particularly the very serious injuries suffered by
Estrada. A probation department officer was present at the
hearing and stated the probation department was strongly
opposed to appellant entering ODR. He emphasized appellant
was “a documented member of the Family Blood Swan Street
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Gang. They are a very vicious street gang known for very serious
retribution.”
The ODR court also heard from an ODR representative,
who stated that appellant “is our target population. She’s
diagnosed as bipolar disorder. She’s now, like her attorney
mentioned, on two injections which she has not been in the past.
[¶] In addition to oral mood stabilizers, [appellant] said this
medication regimen is really working for her and nothing that
she has been on in the past has worked as well. [¶] She does have
significant treatment in the community. So I do think that she
recognizes this opportunity and does present as motivated this
time around.”
The ODR court found appellant was “marginally suitable
for O.D.R.” When the court asked if arraignment for judgment
and time for sentencing was waived, the prosecutor replied: “So
no—the victim has a right to be heard in this case pursuant to
Marsy’s Law.” The prosecutor added “we are depriving the victim
of the opportunity to be heard.” The prosecutor explained that
she was unfamiliar with ODR and believed that a final
determination on ODR would not be made until the sentencing
hearing scheduled for next week. The court agreed to set the
matter for further ODR, and stated: “My tentative is yes, but I
will be open to hearing of course from everyone.”
At the continued hearing on ODR on January 6, 2021, the
victim and his mother were present. The prosecutor read
statements the victim and his mother and sister had prepared for
the court. The victim provided additional photos of his injured
leg. The victim and his family all opposed ODR and sought
prison time.
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The court had previously asked the prosecutor to consult
with someone else in her office, apparently the head deputy
district attorney, Mr. Wright. The prosecutor stated Wright told
her to provide the ODR court with transcripts of appellant’s jail
calls showing “she was still trying to bypass justice and not
showing remorse for her decision.” Wright asked the prosecutor
to convey his belief that appellant was unsuitable for ODR.
When appellant’s counsel argued, she stated that “in
discussing Mr. Wright’s position on O.D.R. for [appellant], the
People indicated something about how she hasn’t—still exhibited
negative behavior despite being on the injections.” Counsel then
discussed the Sheriff’s Department’s objection to appellant being
out of a safety chair for the March 2020 trial and renewed this
objection in September 2020 when deliberations finally got
underway and a verdict was reached. Counsel pointed out the
Sheriff’s Department did not have any additional information or
evidence of any incidents that occurred during the March trial
and September deliberations.
The court stated: “This is probably one of the most serious
cases I have seen since coming to O.D.R.” The court explained:
“There are cases where the offense is just so serious that I cannot
in good conscience take that case. I think this is one of those
cases.” The court noted that the head deputy district attorney
“has really good judgment and can often bring in a D.A. who is in
opposition to understanding the value of the program and
medication” and he was opposed to ODR. Probation was very
opposed, and mentioned “the gang narcotic piece being of
concern.” The court concluded: “In looking at the phone calls
from March 4th [sic], these are of great concern to the court. So I
will find that she is not a suitable candidate for O.D.R. I will
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return her to the home court for sentencing.” The court added: “I
should say one other issue just for the record is that there have
been difficulties with [appellant] on occasions that she has come
to court where she has presented a problem to the deputies . . .
and that is another indication to me that she is not going to be a
good fit for our program.”
DISCUSSION
I. Diversion
Appellant contends the court abused its discretion in
denying her placement in ODR diversion. She contends the
court’s tentative ruling on December 2, 2020 that she was
suitable for diversion was correct and the court’s change of heart
was not warranted by the additional information which the court
received at the January 6, 2021 hearing.
To the extent appellant is contending that the trial court
lacked the authority to change its initial decision, she has
forfeited that claim. She has cited no legal authority to support
such a restriction, and has also failed to provide a logical
explanation for why the court should not be able to change its
initial decision after the prosecutor explained that the victim and
his family wished to be heard, but were not present due to a
misunderstanding by the prosecutor. (See, e.g., City of Santa
Maria v. Adam (2012) 211 Cal.App.4th 266, 286–287.) At that
point, the court set the matter for a further/continued hearing
and expressly indicated that its “tentative is yes” for ODR, but
the court was open to further information. We note that
appellant’s trial counsel did not object to further proceedings.
Turning to the merits of the decision, the parties
acknowledge that placement in an ODR program involves a grant
of probation, and must be evaluated under the abuse of discretion
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standard of review applicable to the grant or denial of probation.
(People v. Carbajal (1995) 10 Cal.4th 1114, 1120 [probation
decision].) “ ‘A court abuses its discretion “whenever the court
exceeds the bounds of reason, all of the circumstances being
considered.” [Citation.] We will not interfere with the trial
court’s exercise of discretion “when it has considered all facts
bearing on the offense and the defendant to be sentenced.” ’
[Citation.] ‘ “[O]nly in a very extreme case should an appellate
court interfere with the discretion of the trial court in the matter
of denying or revoking probation.” ’ ” (People v. Kingston (2019)
41 Cal.App.5th 272, 278.) “[A] ‘ “decision will not be reversed
merely because reasonable people might disagree. ‘An appellate
tribunal is neither authorized nor warranted in substituting its
judgment for the judgment of the trial judge.’ ” ’ ” (People v.
Carmony (2004) 33 Cal.4th 367, 377.)
The trial court did not act arbitrarily or irrationally in
denying diversion in light of the additional information presented
at the January 6, 2021 hearing. The court received additional
evidence concerning the severity of Estrada’s injuries, the extent
of the medical interventions required to treat the injuries, and
how those injuries would limit his activities for the rest of his life;
the court also learned of the toll it took on his family to care for
him during treatment and recovery.
Appellant contends the trial court was aware of the extent
of Estrada’s injuries at the first hearing when it initially found
her suitable for diversion, and implies that no new information
was provided on this topic at the continued hearing. The court
explained that at the first hearing, “I had a verbal representation
about the seriousness of the injuries. I did not have a visual.
[Now] I have a visual. It is pretty extreme.” The court also
received additional information from the victim’s family at the
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January hearing about the extensive care he needed at home
once he was discharged from the hospital, which further
illuminated the seriousness of the injuries.
Appellant contends the seriousness of Estrada’s injuries did
not change her intent or conduct, so the ODR placement would
have fulfilled the same sentencing objectives regardless of the
extent of Estrada’s injuries. Appellant’s intent, conduct, or
mental health are not the only factors to be considered by the
court in deciding on a sentence for a defendant, including
whether a defendant is suitable for ODR.
Rule 4.414 of the California Rules of Court sets forth the
factors a court should consider in granting or denying probation.
These factors include the nature and seriousness and
circumstances of the crime, and whether the defendant inflicted
physical or emotional injury. (Cal. Rules of Court, rules
4.414(a)(1), 4.414(a)(4).) Further, the court may consider
whether the defendant’s acts involved a high degree of cruelty,
viciousness, or callousness. (Cal. Rules of Court, rules, 4.408(a),
4.421(a)(1).) The court properly considered this factor.
Appellant also contends the court should not have
considered her March 5, 2020 phone call discussing witness
intimidation because she had “significantly progressed in
rehabilitating herself” by the time of the January, 2021 ODR
hearing. The record citations she provides to support her claim of
rehabilitation show she was compliant with her medications. She
similarly contends the trial court should not have considered
alleged problems she had with deputies because those did not
occur during her current incarceration, showing rehabilitation.
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The court specifically inquired into the timing of the phone
call in relation to the commencement of appellant’s medication,
and learned that her first medication injection was in September
2019 and her second was in November 2019. Thus, the phone
call occurred after she had been on her medications for months.
The prosecutor did not rely on appellant’s problems with
deputies in arguing for the denial of ODR, and the court
mentioned the problems only after denying ODR. We find it is
not entirely clear when appellant’s difficulties with courthouse
deputies began, but the trial court was concerned enough about
her behavior in early March 2020 to hold a hearing on restraints
in the courtroom and to order her to wear a stealth belt. At the
hearing, the head sergeant of the courthouse lockup testified
about appellant’s behavioral problems in the lockup, but it is not
entirely clear how recent those problems were.2 At the conclusion
of the March 2020 hearing, the trial court noted it “saw her
ramping up emotionally” during the hearing and determined she
needed to wear a stealth belt during trial. Thus, there is some
indication in the record that problems persisted at least until the
beginning of trial, and so any minimal consideration of those
problems by the ODR court was not improper.
2 The lockup sergeant referred to “past” problems, but it is
not clear how far in the past those problems were. Appellant had
been in custody since at least September 2019.
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II. New Law
Section 1170, subdivision (b)(1) provides that the mid-term
sentence is the presumptive term of imprisonment. Assembly
Bill 124 amended section 1170, subdivision (b) to provide:
“Notwithstanding 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. [¶] (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. [¶] (C) Prior to the instant offense,
or at the time of the commission of the offense, the person is or
was a victim of intimate partner violence or human trafficking.”
(§ 1170, subd. (b)(6).)
The parties agree the changes made by Assembly Bill 124,
effective January 1, 2022, apply retroactively to appellant
because it is ameliorative and her case is not yet final. We agree
as well.
There is ample evidence in the record, in the form of a
report by a psychiatric social worker, that appellant suffered
“psychological, physical, or childhood trauma.” The report also
indicates appellant started sex work to make money and was
thereafter exploited by her pimp. Respondent contends that
because the court was aware of these factors, there is no need to
remand for resentencing. We cannot agree.
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The trial court stated: “[L]ooking at all the factors,
mitigating, aggravating factors that were set forth in counsel’s
memorandum, also looking at the nature of [the] violence that
was undertaken in this situation, the court feels that balancing
those . . . that the appropriate term” is the mid-term of four
years. At the time of sentencing, section 1170, subdivisions (b)(1)
and (b)(2) provided that the mid-term was the appropriate term
unless the circumstances in aggravation outweighed the
circumstances in mitigation. Thus, by imposing the mid-term,
the trial court at least impliedly found the aggravating factors
did not outweigh the mitigating factors; the court arguably made
an express finding by its reference to balancing. Under amended
subdivision (b)(6), if the aggravating factors do not outweigh the
mitigating factors, the low term is the presumptive term.
Appellant is entitled to a resentencing hearing for the trial court
to determine whether her trauma and the fact that she was
trafficked were “a contributing factor in the commission of the
offense.”
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DISPOSITION
Appellant’s sentence for mayhem is vacated, and the
matter is remanded with directions to the trial court to hold a
new sentencing hearing to consider whether section 1170,
subdivision (b)(6) requires the imposition of the low term. The
judgement is affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J.
WILEY, J.
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