People v. Scott CA5 ( 2021 )

Filed 12/14/21 P. v. Scott CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082188
Plaintiff and Respondent,
(Super. Ct. No. BF180435A)
v.
GARY SCOTT, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. David R. Zulfa,
Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Peña, Acting P. J., Snauffer, J., and De Santos, J.
STATEMENT OF APPEALABILITY
This appeal is from a final judgment which disposes of all issues between the
parties. (Pen. Code, § 1237, 1 Cal. Rules of Court, rule 8.304(a).)
STATEMENT OF THE CASE
On July 29, 2020, 2 after a preliminary examination, an information was filed
charging Scott with first degree burglary (§ 460, subd. (a); count 1); assault with a deadly
weapon, a pickaxe (§ 245, subd. (a)(1); count 2); and misdemeanor resisting arrest
(§ 148, subd. (a)(1), count 3). As to count 1, it was further alleged that a person other
than an accomplice was present in the residence and that Scott personally used a deadly
weapon, a pickaxe. (§§ 667.5, subd. (c)(21), 12022, subd. (b)(2).)
On October 26, trial commenced. Count 3 was dismissed. On November 4, the
jury found Scott guilty on counts 1 and 2. The person present and use allegations were
found true.
On December 2, Scott was sentenced to the upper term of 6 years in prison on
count 1. The use allegation was stricken by the court. The sentence of 4 years on count 2
was stayed pursuant to section 654. Various fines and fees were imposed. Scott received
69 days presentence custody credit.
On December 23, Scott filed a timely notice of appeal.
STATEMENT OF FACTS
A. The Prosecution’s Case
On March 16, between 11:00 and 11:30 p.m., five members of the M. family were
at their Bakersfield residence. E., his wife M., and his mother B. were in the kitchen; R.
and G. were in their respective bedrooms. E. and M. live in a motor home/trailer on the
back patio.
1 Subsequent statutory references are to the Penal Code.
2 Subsequent references to dates are to dates in 2020 unless otherwise stated.
2.
When E. went outside to go to his motor home, he saw Scott “coming in our back
gate.” E. told Scott that he was not allowed there. Scott said he was looking for his
girlfriend, B.M., a friend of E.’s wife. E. again told Scott he was not allowed to be there,
told him his girlfriend was not there, and that Scott “needed to go.”
When Scott said, “Well, I’m looking for [my girlfriend],” E. said it did not matter
and that he was not allowed there. Scott said, “What are you going to do about it?” E.
pushed Scott. Scott picked up a pickaxe that was lying in the yard. E. said, “I’ll call the
law on you” and turned to run into the house. Scott chased him, carrying the pickaxe. E.,
who was scared because Scott was chasing him, entered the residence through a rear
sliding-glass door. He shut the door and went into the kitchen. Scott entered the house
through the sliding glass door, hitting and scratching it with the pickaxe as he did so.
Scott chased E. into the living room. E. picked up a wooden chair to use as a shield to
defend himself. Scott came into the room “swinging that pickaxe.” As Scott swung the
pickaxe, he hit the chair. Scott forcefully swung the pickaxe at E. E. testified, “He was
planning on injuring me with it.”
While in the kitchen, E.’s wife M. 3 heard a loud bang. She then saw E. run in
through the sliding glass door, through the kitchen, and into the living room; Scott was
“chasing him with a pickaxe.” M. looked down the hall and “heard scuffling.” E.’s
mom B. saw E. come through the sliding glass door “backing up frantically swearing, …
‘Get the F out of here.’ ” E. had his hands up. She heard a loud bang. B. ran down the
hall and into the bedroom she shared with her husband. She snuck back into the kitchen,
got her phone, went back into the bedroom, and called the police. She heard “all the
commotion.” B. told M. to go outside; M. went outside.
From his bedroom, E.’s brother R. “heard a commotion going on in the front
room.” He went into the front room and saw Scott “with something in his hand swinging
3 In April 2016, M. had been convicted of misdemeanor shoplifting.
3.
it at [his] brother who was holding a chair.” R. saw Scott swing the object at least five or
six times. To protect E., R. “bull-rushed” Scott into a cabinet and “just start[ed] wailing
away at him”; E. joined in to restrain Scott. The pickaxe fell to the floor. R. tackled
Scott and they fell into the kitchen; R. continued to hit Scott. At some point, Scott said,
“Okay. All right. I quit. Let me up. Let me up.” E. and R. detained Scott on the floor
until the police arrived.
After calling 911, B. went into the kitchen and saw E. and R. wrestling with Scott
and trying to subdue him. E. and R. sustained minor scrapes and bruises as a result of
their struggle with Scott, and R. broke his hand as a result of hitting Scott. E. denied
approaching Scott with the pickaxe, hitting him with it, or swinging it at him. E. did not
reply “F you” to Scott’s question whether his girlfriend was there. E. did not hit Scott
with the chair.
E. testified the pickaxe made a dent or a “strike mark” on the chair he had been
holding. Scott may also have hit a closet door with the pickaxe. R. testified he saw wood
chips flying from the chair as a result of Scott hitting it with the pickaxe.
Officer Aaron Waddle responded to the scene and found Scott on the kitchen
floor. He placed Scott in his patrol car, then collected the pickaxe. Officer Waddle did
not notice any wood chips on the floor, and R. did not tell him that there were wood chips
on the floor.
B. DEFENSE CASE
Scott4 testified that he got off work at around 11:30 p.m. on March 16 and went to
the M. family’s house to see his girlfriend. He had been told she was there. He had been
to E. and M.’s trailer on a previous occasion to see his girlfriend and had entered through
the side gate; he believed that such entry was permissible.
4 Scott has several prior convictions.
4.
Scott parked his car and walked to the gate on the side of the house. He opened it,
took one step, and saw E. Scott asked if his girlfriend was there. E. said, “No F you,”
and swung a pickaxe at Scott, hitting him in the right rear shoulder. E. never said that
Scott’s girlfriend was not there nor did he say he was going to call the police. Scott was
not aggressive and did not challenge E. to a fight.
After being hit with the pickaxe, Scott dropped to one knee and saw E. swinging
the pickaxe. Scott reached up and grabbed E.’s hand, “preventing him from hitting me a
second time.” Scott grabbed the pickaxe. Although he did not “remember much,” Scott
recalled following E. into the house. Scott went into the house because he felt threatened,
wanted to make sure E. did not have any other weapons, and to see if his girlfriend was
there. He chased E. Scott did not hit the sliding glass door with the pickaxe.
Scott entered the kitchen and then went into the dining room. E. was holding a
chair and pushed it out into Scott’s face. E. then hit Scott “across the face with it.”
Being hit with a chair put Scott on the floor. Scott never swung the pickaxe at E. If the
pickaxe touched the chair, it was only because Scott was protecting himself from the
chair. Scott remembered “a bunch of fists hitting [him].” He was punched
“viciously … many times.” He sustained numerous injuries.
APPELLATE COURT REVIEW
Scott’s appointed appellate counsel has filed an opening brief that summarizes the
pertinent facts, raises no issues, and requests this court to review the record
independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes
the declaration of appellate counsel indicating Scott was advised he could file his own
brief with this court. By letter on April 19, 2021, we invited Scott to submit additional
briefing. To date, he has not done so.
Having undertaken an examination of the entire record, we find no evidence of
ineffective assistance of counsel or any other arguable error that would result in a
disposition more favorable to Scott.
5.
DISPOSITION
The judgment is affirmed.
6.