People v. Scott CA3 ( 2024 )

Filed 9/25/24 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C099391
Plaintiff and Respondent, (Super. Ct. No. 14F05089)
v.
TERRY SCOTT,
Defendant and Appellant.
Defendant Terry Scott appeals from the trial court’s denial of his petition for
resentencing under Penal Code section 1172.6. (Statutory section citations that follow
are found in the Penal Code unless otherwise stated.) Defendant petitioned for
resentencing under former section 1170.95. Effective June 30, 2022, the Legislature
renumbered former section 1170.95 as section 1172.6 without substantive changes.
(Stats. 2022, ch. 58, § 10.) We refer to the current section throughout this opinion.
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After issuing an order to show cause, the trial court denied the petition concluding
section 1172.6 violated the People’s state constitutional right to a jury trial. On appeal,
defendant contends the trial court erred, as a resentencing hearing is not a criminal trial
for purposes of the state constitutional right to a jury trial. The People concede the issue.
We accept the People’s concession, reverse the order, and remand the matter for a hearing
under section 1172.6, subdivision (d).
FACTS AND HISTORY OF THE PROCEEDINGS
The facts underlying defendant’s conviction are not relevant to the issue on appeal
and are therefore not set forth.
In May 2016, a jury found defendant and his codefendant guilty of second degree
murder (§ 187, subd. (a)) and assault of a child under the age eight, causing death
(§ 273ab). The trial court sentenced defendant to a term of 25 years to life for assault on
a child causing death and imposed and stayed a sentence of 15 years to life on the murder
conviction.
On July 12, 2019, defendant filed a petition for resentencing under section 1172.6.
The trial court found defendant made a prima facie showing, issued an order to show
cause, set the matter for hearing and appointed counsel.
The People filed a resentencing brief arguing, among other things, that section
1172.6 violated the People’s right to a jury trial under the California Constitution.
Defendant responded that a section 1172.6 hearing is a special proceeding to which a jury
trial right does not attach.
The trial court denied the petition, finding “section 1172.6 is unconstitutional by
depriving the People of their right to a jury determination of the facts at what is for all
intents and purposes a criminal trial.”
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DISCUSSION
Defendant contends the matter must be remanded for a hearing under section
1172.6, subdivision (d), as the trial court erred in concluding section 1172.6 violates the
People’s state constitutional right to a jury trial. He contends the resentencing hearing is
not a criminal trial, thus the state constitutional right to a jury does not apply. The People
concede the issue and agree the matter must be remanded for a hearing under section
1172.6, subdivision (d).
Article I, section 16 of the California Constitution provides: “[T]rial by jury is an
inviolate right and shall be secured to all . . . . A jury may be waived in a criminal cause
by the consent of both parties expressed in open court by the defendant and the
defendant's counsel.” (Cal. Const., art. I, § 16.)
Section 1172.6, subdivision (a), provides a postjudgment procedure for individuals
convicted of murder, attempted murder, or manslaughter who could no longer be
convicted of those crimes to retroactively seek resentencing relief. (People v. Lewis
(2021) 11 Cal.5th 952, 959.) Under the statutory procedure, defendant files a petition
seeking relief, if the petition shows a prima facie entitlement to relief, the trial court must
issue an order to show cause and hold an evidentiary hearing at which the prosecution
bears the burden of proving, beyond a reasonable doubt, that the petitioning defendant is
guilty of murder under sections 188 and 189 as amended. (People v. Strong (2022)
13 Cal.5th 698, 708; § 1172.6, subds. (a), (c), (d)(1), (3).) Both parties may present “new
or additional evidence to meet their respective burdens.” (§ 1172.6, subd. (d)(3).) “[T]he
court may consider evidence previously admitted at any prior hearing or trial that is
admissible under current law, including witness testimony, stipulated evidence, and
matters judicially noticed.” (Ibid.) If the prosecution fails to carry its burden, the
challenged conviction and any accompanying allegations or enhancements must be
vacated and the petitioner resentenced on any remaining charges. (Ibid.)
3
Section 1172. 6 does not provide for a new trial (People v. Vargas (2022)
84 Cal.App.5th 943, 952) and the parties are not placed in the position as if no trial had
occurred. (Gomez v. Superior Court (2024) 100 Cal.App.5th 778, 788 [resentencing is
not a new trial for purposes of section 1170.6].) The section 1172.6 resentencing hearing
is not a trial, criminal prosecution, or subsequent retrial. (People v. Myles (2021)
69 Cal.App.5th 688, 706 [not a trial for purposes of Fifth Amendment]; People v.
Mitchell (2022) 81 Cal.App.5th 575, 588 [not a criminal prosecution for purposes of Fifth
Amendment]; People v. Duran (2022) 84 Cal.App.5th 920, 930 [not a subsequent retrial
for purposes of Fifth Amendment].) It is a postconviction collateral proceeding, the
scope of which is limited to the issues made relevant by the amended law of murder.
(People v. Delgadillo (2022) 14 Cal.5th 216, 227 [defendant not entitled to Wende review
of denial of 1172.6 petition as it is a collateral postconviction proceeding]; People v.
Lewis, supra, 11 Cal.5th at p. 972 [no constitutional right to counsel in section 1172.6
proceedings as postconviction collateral proceeding]; Gomez, at p. 787; Mitchell, at
p. 588.) During the resentencing hearing itself, the final judgment of conviction remains
intact. (Duran, at p. 931.) “This is no doubt why the panoply of rights that attach at trial
do not apply during a section 1172.6 evidentiary hearing, such as the right to a jury trial
or the protection against double jeopardy. (Mitchell, supra, 81 Cal.App.5th at pp. 588-
589 [collecting cases].)” (Duran, at p. 931; see also People v. Njoku (2023)
95 Cal.App.5th 27, 44-46 [defendant does not possess many of the constitutional rights
attendant to a criminal trial, including right to jury trial].) Based on the reasoning
underlying these authorities, we accept the People’s concession that “resentencing
proceedings are distinctly different from a criminal trial” and “the People’s constitutional
right to a jury trial is not implicated during the section 1172.6 evidentiary hearing.”
4
DISPOSITION
The order denying the petition for resentencing is reversed and the matter is
remanded to the trial court for a hearing under section 1172.6, subdivision (d).
HULL, Acting P. J.
We concur:
BOULWARE EURIE, J.
WISEMAN, J.
 Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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