People v. Smart CA3

Filed 10/5/21 P. v. Smart CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Trinity) ----

THE PEOPLE, C093192

Plaintiff and Respondent, (Super. Ct. No. 20F0041)

v.

STEPHANIE ANN SMART,

Defendant and Appellant.

Defendant Stephanie Ann Smart pled no contest to assault with a deadly weapon resulting in great bodily injury, assault with a deadly weapon, and threatening to commit a crime resulting in death while on bail. The trial court sentenced defendant to five years and eight months in prison. Defendant appeals her sentence, asserting the trial court improperly considered her lack of remorse as an aggravating circumstance, and remand for resentencing is appropriate because the error was prejudicial. We conclude defendant forfeited the argument she raises on appeal and thus affirm.

1

FACTUAL AND PROCEDURAL BACKGROUND The facts underlying defendant’s case are irrelevant to the contention raised on appeal. Suffice it to say defendant and an unknown accomplice threatened and severely beat the victims with their fists and a golf club. As to sentencing, defendant received a copy of the probation report and the district attorney’s sentencing recommendation prior to the sentencing hearing. The probation report recommended a sentence of five years eight months in prison and was based, in part, on defendant’s lack of remorse. At the hearing, defendant argued for a mitigated term of 16 months based on her lack of prior felony convictions and her minor participation in the attack. She further asserted a mitigated sentence was justified because there was good reason to suspect one of the victims was responsible for her sister’s death. The prosecution argued for the recommended sentence. The trial court sentenced defendant in accordance with the sentencing recommendation as follows: the upper term of four years for assault with a deadly weapon resulting in great bodily injury, one-third the middle term of one year for assault with a deadly weapon, and one-third the middle term of eight months for threatening to commit a crime resulting in death while on bail. The trial court justified the imposition of the upper term on the grounds defendant participated in the attack while on probation, the victims sustained brutal injuries, and defendant lacked remorse and failed to take responsibility for her actions. The trial court then advised defendant of her right to appeal the decision and provided defendant an opportunity to respond. Defendant had nothing further to add. DISCUSSION Defendant contends the trial court improperly used her lack of remorse to justify the upper term for the assault with a deadly weapon resulting in great bodily injury count because she entered the no contest plea pursuant to West. (Citing People v. West (1970) 3 Cal.3d 595.) A defendant entering a West plea does not admit the plea’s factual basis,