P. v. Wealth

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Filed 11/26/19 P. v. Wealth 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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,
Plaintiff and Respondent,
v.
SHEBETH WEALTH,
Defendant and Appellant.
B294035
(Los Angeles County
Super. Ct. No. BA462465)
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 and
Michael J. Wise, Deputy Attorneys General, for Plaintiff and
Respondent.
* * * * * * * * * *

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Defendant and appellant Shebeth Wealth assaulted a social
worker during a visit with her minor son. Afterward, she fled
with her son. 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.
Defendant contends she is entitled to a conditional reversal
of the judgment and a remand for a mental health eligibility
hearing pursuant to Penal Code section 1001.36. In the
alternative, she contends the trial court made various sentencing
errors warranting a remand for a resentencing hearing.
We affirm the judgment of conviction. We reverse the
three-year sentence on the great bodily injury enhancement and
remand for a new sentencing hearing.
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

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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.
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

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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.
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

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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
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.

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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
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.

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This appeal followed.
DISCUSSION
1. Mental Health Diversion
Penal Code section 1001.36, which became effective
June 27, 2018, authorizes trial courts to grant certain eligible
defendants “pretrial diversion” into mental health treatment
programs in lieu of criminal prosecution. (People v. Craine (2019)
35 Cal.App.5th 744, 749 (Craine), review granted Sept. 11, 2019,
S256671; see also Pen. Code, § 1001.36 [“the 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)”].)
Defendant, relying primarily on People v. Frahs (2018)
27 Cal.App.5th 784 (Frahs), requests remand for consideration of
pretrial diversion in her case, arguing the new provision should
be applied retroactively to all cases not yet final on appeal. On
December 27, 2018, the Supreme Court granted review in Frahs
(S252220) to address the question of retroactivity of Penal Code
section 1001.36.
Craine was filed after the grant of review in Frahs. Craine
rejected the reasoning of Frahs, holding that Penal Code
section 1001.36 does not apply retroactively where, as here, the
defendant has already been tried. The Supreme Court has
granted review in Craine pending its disposition in Frahs.
People v. Torres (2019) 39 Cal.App.5th 849 has also rejected
the argument the statute should be applied retroactively to cases
not final on appeal. However, three other courts have followed
Frahs: People v. Weaver (2019) 36 Cal.App.5th 1103 (rev. granted
Oct. 9, 2019, S257049), People v. Burns (2019) 38 Cal.App.5th 776

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(rev. granted Oct. 30, 2019, S257738) and People v. Hughes (2019)
39 Cal.App.5th 886.
We believe Craine to be the better reasoned view. We
adopt the careful and correct analysis of Craine and reject
defendant’s contention she is entitled to a conditional reversal
and remand for an eligibility hearing for mental health diversion.
2. The Sentence on Count 2
Defendant contends the trial court’s failure to stay her
sentence on count 2 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
leaving the park with S.W.—and that act can only be punished
once. The argument lacks merit.

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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 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.
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

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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
assess its sentencing choices anew. We express no opinion on
how the court should exercise its discretion on remand.

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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.

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STRATTON, J., Concurring and Dissenting.
There are two issues upon which I add a different
perspective. First, I write separately on the applicability of the
mental health diversion statute. Although I continue to believe
that the statute should be applied retroactively to judgments not
yet final on appeal as set out in People v. Frahs (2018)
27 Cal.App.5th 784, review granted December 27, 2018, S252220,
I conclude that appellant has waived the issue. The statute took
effect on June 27, 2018. Appellant was sentenced on October 19,
2018, after the effective date of the statute. Prior to the
sentencing hearing, the trial court had ordered a 90-day
diagnosis study pursuant to Penal Code section 1203.03. At that
time defense counsel stated: “And so . . . unless the court was
otherwise inclined to grant probation, I think that that’s a good
option.” At the October 19, 2018, sentencing hearing where the
trial court considered the diagnostic study, defense counsel
stated: “Your Honor, I have reviewed the report. . . . [¶] . . .
I believe that Miss Wealth continues to be a good candidate for
probation. . . . [¶] . . . [¶] And I would ask the court to consider
probation in this case.” Appellant never requested diversion,
waiving the issue. I concur in the result reached by the majority
as to this issue.
Second, the sentencing here implicates Justice Moreno’s
comment in In re Michele D. (2002) 29 Cal.4th 600, 614,
footnote 6, which held that kidnapping an unresisting infant or
child requires proof that the defendant moved the victim for an
illegal purpose or with an illegal intent. The court addressed
defendant’s argument that her conduct did not constitute
kidnapping but at most child abduction under Penal Code

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section 278. (In re Michele D., at p. 613.) The court 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
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 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.)

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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 were committed by appellant
physically doing exactly the same thing at the same time. 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.

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