People v. Smart CA3

Filed 3/18/22 P. v. Smart CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. OPINION ON TRANSFER

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.

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In an unpublished opinion, we concluded defendant forfeited the argument and we accordingly affirmed the judgment. (People v. Smart (Oct. 5, 2021, C093192) [nonpub. opn.].) Our Supreme Court granted review and transferred the matter back to us with directions to vacate our decision and reconsider the cause in light of Senate Bill No. 567 (Stats. 2021, ch. 731), which was signed into law three days after we filed our unpublished opinion. Defendant thereafter filed a supplemental brief, arguing Senate Bill No. 567 applies retroactively to her and requires that we remand the matter for resentencing; the People agree. Upon reconsideration, we conclude defendant is entitled to resentencing under Senate Bill No. 567 because it is an ameliorative statute that applies retroactively to her nonfinal case. We accordingly vacate the sentence and remand the matter to the trial court to resentence defendant. 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