People v. Scott CA2/5

Filed 3/30/23 P. v. Scott CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B315262
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. BA420534)
SEDRIC SCOTT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Terry A. Bork, Judge. Affirmed in part,
reversed in part, and remanded.
Leslie Conrad for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles S. Lee and David E. Madeo,
Deputy Attorneys General, for Plaintiff and Respondent.
In 2012, defendant and appellant Sedric Scott (defendant)
snatched a gold chain off victim Patrick Lister (Lister) and a gang
melee ensued during which Lister was fatally stabbed.
Defendant was tried and convicted of second degree murder and
the jury found true an enhancement allegation that the crime
was gang related. Several years later, defendant filed a petition
for resentencing under Penal Code section 1172.6 (former Penal
Code section 1170.95).1 The People stipulated defendant was
eligible for resentencing and the trial court redesignated
defendant’s offense as second degree robbery, reimposed the gang
enhancement found true, and resentenced defendant. We
consider an issue on which our Supreme Court has granted
review—whether section 1172.6 permits reimposing an
enhancement in connection with a grant of section 1172.6 relief—
and, if so, whether the gang enhancement reimposed here must
still be vacated because of amendments made to the gang
enhancement statute by Assembly Bill No. 333 (2021-2022 Reg.
Sess.) (AB 333) that apply retroactively to defendant.
I. BACKGROUND
A. The Murder
Defendant, John Armstrong (Armstrong), and Curtis Lowe
(Lowe) were members of the Swans criminal street gang. In May
2012, defendant and Armstrong approached Lister outside a
market and asked where he was from. Lister did not respond
and entered the market.
1
Undesignated statutory references that follow are to the
Penal Code.
2
Defendant and Armstrong followed Lister inside, and
defendant tore a gold chain from Lister’s neck. As defendant ran
out of the market, Lister gave chase. Defendant, Armstrong, and
other members of the Swans gang then attacked Lister. Lowe
ran from across the street and joined in the group assaulting
Lister. At some point during the altercation, defendant pocketed
the chain.
When the attack stopped, Lister’s chest was covered in
blood. Defendant returned the chain to Lister. Lister died days
later from a six-inch-deep stab wound that pierced his heart.
(People v. Lowe (Apr. 19, 2016, B260127) [nonpub. opn.] (Lowe).)
The market’s surveillance camera, which captured portions
of the attack, showed Lowe walking toward the market from the
direction of the fight, moving something from his left hand to his
right hand, and putting it in his pocket. Later, the video showed
Lowe opening his right palm and looking down at it. (Lowe,
supra, B260127.) Another Swans gang member, Mitchell
Johnson, who was interviewed by police after the murder,
claimed Lowe stabbed Lister, though he conceded he had not seen
the actual act of stabbing himself. (Lowe, supra, B260127.)
B. Charges and Trial
Defendant, Nathaniel Willard (Willard), Lowe, and
Armstrong were charged with Lister’s murder in 2014. The
information alleged the murder was committed while the
defendants were engaged in the commission of a robbery and was
committed for the benefit of, at the direction of, and in
association with a criminal street gang.
During the defense case, defendant admitted he was a
member of the Swans gang. Defendant testified he accidentally
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broke Lister’s chain during the altercation, but he later gave it
back to Lister. Defendant said Lister was not bleeding when he
returned the chain, and he had not known Lister had been
stabbed. (Lowe, supra, B260127.)
Officer Bobby Romo testified about the Swans gang, which
was a “Blood” gang. According to Officer Romo, gang members
want members of the community to fear them so the community
members will be reluctant to cooperate with the police out of fear
of retaliation. They also want to be feared and respected by
members of other gangs. Fear and respect make it easier for
them to get away with crimes.
The prosecution introduced two minute orders from other
cases during Officer Romo’s testimony to satisfy the predicate
crime requirements of the gang enhancement statute as it existed
at the time. The minute orders were from the prosecutions of one
Trotter and one Hall. Officer Romo testified he had been
involved in the investigation of the Trotter case. Trotter was
convicted of assault with a firearm for an offense committed on
February 20, 2010. Officer Romo explained the officers
responded to a call at what was basically a warehouse party
attended by numerous Blood gang members. Officers observed
Trotter with a firearm, the officers pursued him, and Trotter fired
a shot at the officers. Officer Romo opined Trotter was a member
of the Swans gang on the date the offense was committed. As to
the Hall case, Officer Romo testified he was also involved in the
investigation. He explained Hall was convicted of attempted
murder for an offense committed on June 19, 2008. Officer Romo
opined Hall was a member of the Swans gang on the date the
offense was committed.
4
After the presentation of evidence at defendant’s trial, the
jury was instructed that defendant and his accomplices were
being prosecuted under three theories: (1) malice murder, (2)
felony murder, and (3) murder pursuant to the natural and
probable consequences doctrine. The jury was also instructed
that if it found defendant guilty it would also have to decide
whether the People had proven the defendant committed the
crime for the benefit of, at the direction of, or in association with
a criminal street gang.
The jury convicted defendant of second degree murder. It
found true allegations that the murder occurred during the
commission of a robbery and the murder was committed for the
benefit of, at the direction of, or in association with a street gang.
The trial court sentenced defendant to 15 years to life in prison
for the murder and stayed the terms on the special circumstance
and gang enhancement.
Defendant appealed the judgment of conviction. A prior
panel of this court affirmed defendant’s conviction but struck the
jury’s true finding on the robbery-murder special circumstance.
(Lowe, supra, B260127.)
C. The Petition for Resentencing
Defendant filed a petition for resentencing under section
1172.6 and the People opposed the petition.2 The trial court
appointed counsel for defendant. After a series of continuances,
defendant filed a reply brief in February 2020. Following
2
The appellate record does not include a copy of defendant’s
initial petition. The People’s opposition to the petition represents
the petition was filed on December 27, 2018.
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additional continuances (many due to the COVID-19 pandemic)
and additional briefing, the trial court found defendant made a
prima facie case for relief and set the matter for an evidentiary
hearing in February 2021. A few months later, the parties
stipulated defendant was eligible to have his murder conviction
vacated under section 1172.6, subdivision (d)(2), and
redesignated by the court in accordance with section 1172.6,
subdivision (d)(2) and/or (d)(3).
The trial court held a hearing in September 2021. The
court accepted the stipulation of the parties and vacated
defendant’s murder conviction. The court found that since the
murder count in the case was charged generically and the target
offense was not designated or charged, robbery in the second
degree should be deemed the underlying felony pursuant to
section 1172.6, subdivision (e).3 The court stated the original
sentencing judge had not stricken the gang enhancement and
found that decision was supported by the facts. Based on its own
review of the evidence, the court was convinced beyond a
reasonable doubt that defendant was guilty of the robbery and
the gang allegation. It recognized its authority to strike the gang
enhancement, but declined to do so.
The court resentenced defendant to 15 years in prison,
comprised of the upper term of five years for the base term, plus
ten years for the gang enhancement. The court found the
following circumstances in aggravation: the crime involved great
3
The statutory subdivision provides that a conviction
vacated pursuant to the statute shall be redesignated as the
target offense or underlying felony for resentencing purposes
when murder was charged generically and the target offense was
not charged.
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violence and great bodily harm; the manner in which the crime
was carried out indicated planning, sophistication, or
professionalism; defendant engaged in violent conduct that
indicated a serious danger to society; defendant’s prior
convictions were numerous or of increasing seriousness; and
defendant had served a prior prison term.
II. DISCUSSION
Two published decisions are split on whether a section
1172.6 court can impose a sentencing enhancement after vacating
a murder conviction and resentencing on the target offense or
underlying felony. (People v. Arellano (2022) 86 Cal.App.5th 418,
435-436 [imposing enhancement not permitted], review granted
Mar. 15, 2023, S277962 (Arellano); People v. Howard (2020) 50
Cal.App.5th 727, 741-742 [imposing enhancement permitted],
review denied Sept. 9, 2020, S263486 (Howard).) As noted, our
Supreme Court has granted review in Arellano to decide the
issue, and pending the Supreme Court’s decision, we believe the
result in Howard is correct on the facts here: section 1172.6 did
not preclude the trial court from reimposing the gang
enhancement as part of defendant’s new sentence. But we also
hold the proof of that enhancement is inadequate under current
law (specifically the redefinition of a “pattern of criminal gang
activity”), which the parties agree applies retroactively to
defendant. We will accordingly reverse and remand with
instructions to permit the People to prove the gang enhancement
allegation under current law, if they so choose, and to resentence
defendant (which will be required regardless of the People’s
election).
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A. Imposition of the Gang Enhancement
Defendant challenges the trial court’s decision to impose
the gang enhancement on his redesignated conviction, arguing
the text of section 1172.6, subdivision (e) does not permit it. The
court in Howard concluded a court is permitted to apply an
enhancement to a redesignated conviction. (Howard, supra, 50
Cal.App.5th at 741-742 [“When the court redesignates the
murder conviction as the underlying felony [citation], may the
court impose enhancements relative to that felony? [S]ubdivision
(e) is silent with respect to how a court resentences a defendant
after redesignating the underlying felony. Consistent with the
legislative goal of placing Howard after resentencing in a
situation where the murder and any related enhancements no
longer exist, Howard’s resentencing may not include count-
specific enhancements unless the People establish them related
to the underlying felony by evidence presented at the hearing on
the section [1172.6] petition. Our conclusion finds support in the
principle that ‘[t]o the extent the court is determining the
sentence to impose after striking the murder conviction, the
traditional latitude for sentencing hearings should be allowed.’
(Couzens et al., [ ]Sentencing Cal. Crimes[ (The Rutter Group
2019)] ¶ 23.51 (J)(2), p. 23-157.)”].) The court in Arellano held to
the contrary. (Arellano, supra, 86 Cal.App.5th at 436 [“By
directing that the vacated conviction shall be redesignated only
‘as the target offense or underlying felony for resentencing
purposes’ (§ 1172.6, subd. (e)) and failing to mention sentence
enhancements, the Legislature spoke to both redesignation of the
conviction and resentencing for that conviction. That is, through
the specific language it chose for section 1172.6, subdivision (e),
the Legislature stated that ‘for resentencing purposes,’ the newly
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redesignated conviction shall include only the offense upon which
liability for murder or attempted murder was based. [¶]
Although this interpretation of section 1172.6, subdivision (e),
limits resentencing to the target offense or underlying felony,
such interpretation does not result in absurd consequences the
Legislature did not intend. It simply limits a petitioner’s
exposure in a relatively definite manner to only a specific offense
and avoids the complexities that could arise in deciding which of
the myriad sentencing enhancements in our penal law might be
applicable to a particular factual scenario”].)
Our Supreme Court will definitively resolve the question,
but we believe the result in Howard better comports with the
purpose of section 1172.6 and the goal of evenhanded sentencing.
We hold section 1172.6 does not bar—at least in theory (a
qualification necessary in light of the issue we reach next)—the
trial court from reimposing a gang enhancement in resentencing
defendant.
B. Defendant’s Sentence Must Be Vacated to Account for
Retroactive Amendments to Section 186.22
1. Assembly Bill 333
“‘In 1988, the Legislature enacted the California Street
Terrorism Enforcement and Prevention Act (STEP Act; § 186.20
et seq.) to eradicate “criminal activity by street gangs.”’
[Citation.] Among other things, the STEP Act created ‘a
sentencing enhancement for a felony committed “for the benefit
of, at the direction of, or in association with any criminal street
gang” [citation].’ [Citation.]” (People v. Tran (2022) 13 Cal.5th
1169, 1205-1206 (Tran).)
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Effective January 1, 2022, AB 333 amended subdivision (f)
of section 186.22. (See Stats. 2021, ch. 699, §§ 1-5.) AB 333 made
a number of changes to the law on gang enhancements, three of
which are relevant here: “First, it narrowed the definition of a
‘criminal street gang’ to require that any gang be an ‘ongoing,
organized association or group of three or more persons.’
(§ 186.22, subd. (f), italics added.) Second, whereas section
186.22, former subdivision (f) required only that a gang’s
members ‘individually or collectively engage in’ a pattern of
criminal activity in order to constitute a ‘criminal street gang,’
Assembly Bill 333 requires that any such pattern have been
‘collectively engage[d] in’ by members of the gang. (§ 186.22,
subd. (f), italics added.) Third, Assembly Bill 333 also narrowed
the definition of a ‘pattern of criminal activity’ by requiring that
(1) the last offense used to show a pattern of criminal gang
activity occurred within three years of the date that the currently
charged offense is alleged to have been committed; (2) the
offenses were committed by two or more gang ‘members,’ as
opposed to just ‘persons’; (3) the offenses commonly benefitted a
criminal street gang [and the common benefit is more than
reputational]; and (4) the offenses establishing a pattern of gang
activity must be ones other than the currently charged offense.
(§ 186.22, subd. (e)(1), (2).)” (Tran, supra, 13 Cal.5th at 1206.)
The Attorney General concedes the substantive changes to
section 186.22 apply retroactively to defendant pursuant to In re
Estrada (1965) 63 Cal.2d 740. Precedent demonstrates the
concession is appropriate. (E.g., Tran, supra, 13 Cal.5th at 1207;
People v. E.H. (2022) 75 Cal.App.5th 467, 478 (E.H.).) The
parties disagree, however, as to whether remand is required as a
result of the retroactive changes.
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2. Remand is required
The current version of section 186.22, subdivision (f)
provides that a “criminal street gang” means “an ongoing,
organized association or group of three or more persons . . . whose
members collectively engage in, or have engaged in, a pattern of
criminal gang activity.” (§ 186.22, subd. (f).) As pertinent here,
subdivision (e)(1) provides that a “pattern of criminal gang
activity” may be established by proving the commission of two or
more enumerated offenses within a certain time period, provided
the offenses “were committed on separate occasions or by two or
more [gang] members, the offenses commonly benefited a
criminal street gang, and the common benefit of the offense is
more than reputational . . . .” (§ 186.22, subd. (e)(1).) Subdivision
(g) provides the following, nonexclusive, list of examples of a
common benefit that is more than reputational: “financial gain or
motivation, retaliation, targeting a perceived or actual gang rival,
or intimidation or silencing of a potential current or previous
witness or informant.” (§ 186.22, subd. (g).)
The evidence presented at defendant’s trial, which was the
only evidence before the section 1172.6 court, does not suffice to
prove the proffered predicate crimes commonly benefited the
gang in a way that was more than reputational. (§ 186.22, subd.
(e)(1).) Officer Romo’s testimony did not address any benefit to
the gang specifically provided by the predicate acts, much less
establish the nature of any such benefit.
The Attorney General disputes this, arguing the evidence
would permit an inference the crimes were committed for a non-
reputational common benefit because Officer Romo testified that
gang members commit crimes to force the community to fear
them and fear retribution, violence is a likely consequence of a
11
rival gang member’s presence in gang territory, and gang
members expect fellow members to provide backup for crimes.
None of that directly addresses the predicate crimes committed
by Trotter and Hall, however, and regardless, the testimony is
insufficient to establish any common benefit was “more than
reputational.” (§ 186.22, subd. (e)(1).)
Because AB 333 took effect after defendant’s trial and the
resentencing proceedings before the section 1172.6 court, reversal
is required but the People will have the opportunity to prove up
the gang enhancement under current law. (Tran, supra, 13
Cal.5th at 1207; E.H., supra, 75 Cal.App.5th at 480.)
C. Additional Sentencing Claims
Senate Bill 567 became effective January 1, 2022. (Stats.
2021, ch.731, §§ 1.3, 3(c).) “Pursuant to Senate Bill No. 567,
section 1170, subdivision (b) has been amended to make the
middle term the presumptive sentence for a term of
imprisonment; a court now must impose the middle term for any
offense that provides for a sentencing triad unless ‘there are
circumstances in aggravation of the crime that justify the
imposition of a term of imprisonment exceeding the middle term,
and the facts underlying those circumstances have been
stipulated to by the defendant, or have been found true beyond a
reasonable doubt at trial by the jury or by the judge in a court
trial.’ (§ 1170, subd. (b)(1) & (2).)” (People v. Lopez (2022) 78
Cal.App.5th 459, 464 (Lopez).)
The People appropriately concede the amended version of
section 1170, subdivision (b) would apply retroactively in this
case because it is an ameliorative change in the law applicable to
nonfinal convictions on appeal. (E.g., People v. Flores (2022) 73
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Cal.App.5th 1032, 1039; Lopez, supra, 78 Cal.App.5th at 465;
People v. Dunn (2022) 81 Cal.App.5th 394, 403.) They dispute,
however, defendant’s assertion that remand for resentencing
under the amended law is necessary.
We have already determined the case must be remanded
for further proceedings concerning the gang enhancement and we
accordingly need provide no further directions concerning Senate
Bill 567 because resentencing will be required and prevailing law
will apply.
Defendant also argues, and the People agree, that remand
is necessary for the trial court to correct his custody credits. This
can be corrected during resentencing.
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DISPOSITION
Defendant’s sentence is vacated. The cause is remanded
with directions to permit the People, if they so elect, to prove the
section 186.22, subdivision (b)(1) enhancement beyond a
reasonable doubt under current law. Regardless of the People’s
election, the trial court shall resentence defendant in a manner
consistent with this opinion. In all other respects, the judgment
is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
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