People v. Scott CA3 ( 2023 )

Filed 7/11/23 P. v. Scott 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Tehama)
----
THE PEOPLE, C096477
Plaintiff and Respondent, (Super. Ct. No. NCR82011)
v.
THOMAS CHARLES SCOTT,
Defendant and Appellant.
In 2012, a jury found defendant Thomas Charles Scott guilty of several marijuana-
related felony offenses and possession of child pornography. Defendant also admitted he
sustained multiple violent felony convictions in 1990, all stemming from a single
criminal case. The trial court sentenced him to an aggregate term of 25 years to life in
prison.
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After the voters passed the Control, Regulate and Tax Adult Use of Marijuana Act
(Proposition 64, as approved by voters, Gen. Elec. (Nov. 8, 2016)) (Proposition 64),
defendant petitioned the trial court to resentence his marijuana-related convictions and
the court denied the petition. We remanded the matter with directions, as we detail post.
On remand, the court declined to resentence defendant, finding he posed an unreasonable
risk of danger to public safety.
Defendant argues on appeal that the trial court abused its discretion. As we will
explain, we agree and will reverse and remand for a new hearing on defendant’s petition.
FACTUAL AND PROCEDURAL BACKGROUND
In 2012, a jury found defendant guilty of cultivating marijuana (Health & Saf.
Code, § 11358; count I),1 possession of marijuana for sale (id., § 11359; count II),
possession of concentrated cannabis (id., § 11357, subd. (a); count III), maintaining a
place for selling or using controlled substances (id., § 11366; count IV), and possession
of matter depicting a minor engaging in sexual conduct (Pen. Code, § 311.11, subd. (b);
count V). Defendant also admitted 10 prior violent felony convictions sustained in 1990.
(id., §§ 667, subd. (b)(1), 1170.12, subd. (a)-(d)).
The trial court sentenced defendant to 25 years to life in state prison on count I,
plus a concurrent term of 25 years to life on count 5. It stayed sentences of 25 years to
life on counts II through IV pursuant to Penal Code section 654.
In 2020, the Department of Justice identified defendant as “potentially eligible”
under Proposition 64 for recall or dismissal of his sentence or redesignation of some of
his convictions. (People v. Scott (Nov. 15, 2021, C093047) [nonpub. opn.] (Scott).)2 The
trial court denied relief as to counts I and II, but reduced count III to a misdemeanor,
1 Undesignated statutory references are to the Health and Safety Code.
2We construe defendant’s request for judicial notice of the record in Scott, supra,
C093047 as a motion to incorporate by reference and grant that motion.
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sealed the conviction, and deemed it time served. Defendant appealed the decision. We
concluded the court was unaware of its discretion to redesignate counts I and II as
misdemeanors under Proposition 64 and remanded the matter. We further noted that,
because the court never considered whether Proposition 64 applied to count IV,
defendant was permitted to raise that issue on remand. (Scott, supra, C093047)
On remand, defendant sought resentencing on counts I, II, and IV. He argued that
he did not present an unreasonable risk of danger to public safety because his offenses
involved no victims or use of deadly weapons, his prior offenses were remote, he had not
sustained new convictions while incarcerated for the current offenses, he maintained
employment throughout incarceration and continued to better himself, and he had support
from his friends and family. At the hearing on June 14, 2022, defendant testified that,
during his time in custody, he received only two violation reports for taking his shirt off
when the prison’s cooling system broke down in a heat wave. He had multiple health
problems and would turn 65 years old in November 2022.
At the conclusion of defendant’s testimony, the trial court directed both counsel to
“put your closing arguments in writing.” The court indicated that it wanted the parties to
address “some specific issues,” including which of the 10 prior sexual offenses were
properly classified as super strikes3 and the proper determination of the classification
“unreasonable risk of danger to public safety” as compared to that contained on other
statutory resentencing provisions.
At the continued hearing on June 20, 2022, the trial court discussed the prior
convictions with counsel; all seemed to agree that the questions of whether the victim
was under 14 and whether any or all the prior crimes were, in 1989 when they were
3 Super strikes refer to violent felonies within the meaning of clause (iv) of subparagraph
(C) of paragraph (2) of subdivision (e) of Penal Code section 667. (People v. Strother
(2021) 72 Cal.App.5th 563, 570.)
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committed, super strikes, was unresolved. However, the court concluded the priors were
“super strikes per se to some extent,” and defense counsel agreed that at least some of the
charges were possibly super strikes, although he argued (and the court agreed) that
regardless of their status as super strikes, the convictions were not “automatic
disqualifiers.” Counsel also emphasized the convictions’ remoteness.
The trial court then denied relief, finding defendant posed an unreasonable risk of
danger to public safety.4 In ruling, the court first noted defendant’s prior convictions
were “some of the most heinous crimes that one could be convicted of.” The court then
indicated that although it “certainly underst[ood] the defendant’s current medical status,
his age, his health, his prison record or lack thereof, plus his explanation of the one
instance where he was in essence written up but that was for lack of a shirt, along with
his plans upon release,” it was “most concerned” with the fact that defendant committed
the charged felony drug crimes after his release, and even “more importantly,” possessed
child pornography as a prior registrant, which elevated the punishment for that charge
(from a wobbler) to a “2/4/6” felony. The court concluded that defendant, “having been
given the chance of rehabilitating himself when he was released from state prison,
decided not to do that, engaged in more criminal conduct; and . . . gets convicted of
having in essence child pornography. And that indicates to the Court that the People
have met their burden that he is an unreasonable risk.” At the end of the hearing, the
court clarified that it was “specifically making the finding that under any definition
[defendant] would be an unreasonable risk, but specifically the Court is finding that the
defendant would be someone who would commit a new super strike.”
Defendant timely appealed on June 24, 2022. The case was fully briefed on
April 24, 2023, and assigned to the current panel on May 5, 2023.
4 The trial court assumed, without deciding, that Proposition 64 applies to count IV for
violation of section 11366.
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DISCUSSION
Defendant argues the trial court abused its discretion in finding that he posed an
unreasonable risk of danger to public safety and denying his petition on that basis. He
contends the remoteness of his prior convictions, his age, health, and record of
rehabilitation, all suggested he is not currently dangerous. He adds that the trial court
failed to consider the 25-year-to-life prison sentence he was already serving for the
possession of child pornography conviction in determining his dangerousness. As we
next explain, we agree the court’s determination of unreasonable risk to public safety is
not supported by substantial evidence in the record.
Proposition 64 added section 11361.8, setting forth procedures for persons
convicted of marijuana-related felonies and currently serving a sentence for such
convictions to petition for recalling their sentences or for resentencing. (§ 11361.8, subd.
(a); People v. Smit (2018) 24 Cal.App.5th 596, 600.) Eligible petitioners are entitled to
relief “unless the court determines that granting the petition would pose an unreasonable
risk of danger to public safety.” (§ 11361.8, subd. (b).) An “unreasonable risk of danger
to public safety” means an unreasonable risk that the petitioner will commit a new super
strike. (§ 11361.8, subd. (b)(2); Pen. Code, § 1170.18, subd. (c).) The super strikes
include, as relevant here, sexually violent offenses and various sexual acts with a child
under 14 years of age. (Pen. Code, § 667, subd. (e)(2)(C)(iv).) In determining whether to
grant a section 11361.8 petition, the trial court may consider the petitioner’s criminal
conviction history, including the type of crimes committed, the extent of injury to
victims, the length of prior prison commitments, and the remoteness of the crimes; the
petitioner’s disciplinary record and record of rehabilitation while incarcerated; and any
other relevant evidence. (§ 11361.8, subd. (b)(1); Pen. Code, § 1170.18, subd. (b).)
We review the trial court’s determination of unreasonable risk of danger for abuse
of discretion. (People v. Jefferson (2016) 1 Cal.App.5th 235, 242; see People v. Saelee
(2018) 28 Cal.App.5th 744, 748-749.) A trial court abuses its discretion when it “bases
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its decision on express or implied factual findings that are not supported by substantial
evidence.” (People v. Moine (2021) 62 Cal.App.5th 440, 449.)
In People v. Williams (2018) 19 Cal.App.5th 1057, this court held in the context of
an appeal from a denial of resentencing pursuant to Penal Code section 1170.126, which
concerns the same finding of unreasonable risk of danger to public safety at issue here
(see id., § 1170.126, subd. (f)), as follows: “[G]ranting the petition would not entitle
defendant to be released. Rather, the dangerousness determination would be deferred
until defendant was 77 and would be vested in the Board of Parole Hearings. ([Pen.
Code,] § 3041, subd. (b)(1); Cal. Code Regs., tit. 15, § 2402, subd. (a).) Resentencing
poses significantly less danger to society if it is contingent on a finding at some future
date that the defendant no longer poses a threat to society. (See [Pen. Code,] § 3041,
subd. (b)(1) [‘The panel or the board, sitting en banc, shall grant parole to an inmate
unless it determines that the gravity of the current convicted offense or offenses, or the
timing and gravity of current or past convicted offense or offenses, is such that
consideration of the public safety requires a more lengthy period of incarceration for this
individual.’].) The trial court’s failure to consider when, if ever, defendant would be
released if the petition was granted was an abuse of discretion.” (Williams, at pp. 1063-
1064.) In that case, we reversed the denial of the resentencing petition and remanded for
additional proceedings. (Id. at p. 1064.)
Here, the trial court’s finding that defendant poses an unreasonable risk of danger
to public safety was similarly unsupported by substantial evidence. Defendant’s prior
violent felony convictions are more than 33 years old and were all committed on the
same day, in a single episode of criminal conduct. His current marijuana-related felonies
may be redesignated as misdemeanors, and his possession of child pornography
conviction, though “reprehensible” as his briefing admits, is neither a super strike offense
nor a violent felony. Except for these offenses, defendant has not been convicted of
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criminal conduct since 1990 and has a minimal disciplinary record while in custody for
his current convictions.
Moreover, and critically for our determination here, at the time of the hearing
defendant was 64 years old and had served approximately 10 years of his 25-year-to-life
term for count V. That sentence would not be affected by the petition and was ordered
served concurrently with the 25-year-to-life term for count I. With the sentences on
counts II and IV already stayed, granting the petition would not entitle defendant to be
released or alter defendant’s time in prison. Defendant would remain in custody until he
is near 80, when he first becomes eligible for parole, and the Board of Parole Hearings
would determine defendant’s dangerousness at that time. (See People v. Williams, supra,
19 Cal.App.5th at p. 1063.) “Resentencing poses significantly less danger to society if it
is contingent on a finding at some future date that the defendant no longer poses a threat
to society.” (Id. at pp. 1063-1064.) Indeed, it is physically impossible for defendant to
commit a super strike offense involving a minor while in prison, and, as we have noted,
future commission of such offense appeared to be the trial court’s primary concern.
Thus, the court abused its discretion in denying the petition by not considering
defendant’s current sentence, that would remain in place were the petition to be granted,
defendant’s dangerousness considering his anticipated age upon release, and that
defendant would still be subject to a parole determination on dangerousness before any
release.
The Attorney General briefly argues defendant has forfeited his claim that the trial
court failed to consider the length of his entire sentence when determining his
dangerousness. We reject this argument because defendant’s claim “do[es] not invoke
facts or legal standards different from those the trial court was asked to apply.”
(People v. Carasi (2008) 44 Cal.4th 1263, 1289, fn. 15.) The Attorney General cites
Williams and adds that “[i]n the event this Court considers the merits of whether the trial
court failed to consider when appellant would be released if the petition was granted, the
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appropriate remedy, as in Williams, is to reverse and remand to allow the trial court to
determine whether appellant should be resentenced under this standard.” We agree with
that assertion.
DISPOSITION
The trial court’s order denying defendant’s petition is reversed. The matter is
remanded for the trial court to conduct a new hearing on defendant’s petition.
/s/
Duarte, Acting P. J.
We concur:
/s/
Renner, J.
/s/
Horst, J.
 Judge of the Placer County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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