Opinion
E072328
02-05-2020
THE PEOPLE, Plaintiff and Respondent, v. THOMAS DOUGLAS SCOTT, Defendant and Appellant.
Thomas Douglas Scott, in pro. per.; Robert V. Vallandigham, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV027315) OPINION APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Thomas Douglas Scott, in pro. per.; Robert V. Vallandigham, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
On December 3, 2003, in San Bernardino Superior Court case No. FWV027315, a first amended information alleged that defendant and appellant Thomas Douglas Scott committed: (1) second degree robbery under Penal Code section 211 (count 1); (2) evasion of an officer in a marked vehicle while operating a motor vehicle under Vehicle Code section 2800.2, subdivision (a) (count 2); (3) possession of a firearm by a felon under Penal Code section 12021, subdivision (a) (count 3); (4) possession of a controlled substance under Health and Safety Code section 11350, subdivision (a) (count 4); and (5) misdemeanor resisting an officer under Penal Code section 148, subdivision (a)(1). As to count 1, the information alleged that defendant personally used a firearm under Penal Code sections 1203.06, subdivision (a), 12022.5, subdivision (a)(1), and 12022.53, subdivision (b); and that defendant had suffered a prior serious felony conviction under Penal Code section 667, subdivision (a)(1). Moreover, the information alleged that defendant had not remained free from prison custody for five years after previously suffering prior felony convictions under Penal Code section 667.5, subdivision (b). Furthermore, as to counts 1 through 4, the information alleged that defendant had suffered prior serious or violent felony or juvenile adjudications under Penal Code sections 1170.12, subdivision (a) through (d), and 667, subdivision (b) through (i).
Following a jury trial, the jury convicted defendant of second degree robbery, evading a police officer, possession of a firearm by a felon, possession of a controlled substance, and resisting/obstructing a peace officer. "It was also found true that defendant personally used a firearm during the robbery." Moreover, "[i]n a bifurcated proceeding, the trial court found that defendant had two prior convictions." The trial court sentenced defendant to a total term of 71 years to life. Thereafter, defendant appealed to this court. On May 8, 2006, in an unpublished opinion, we affirmed the judgment, but modified the sentence to stay the sentences on counts 2 and 5 under section 654.
The petition did not reflect the order granting defendant's previous petition, which reduced the total term to 46 years to life.
On June 22, 2017, defendant filed a petition for resentencing under Penal Code section 1170.18 for count 4, possession of a controlled substance under Health and Safety Code section 11350, subdivision (a). At a hearing on July 21, 2017, defense counsel and the prosecutor were present. The People agreed that the petition should be granted and the new total term should be 46 years to life. The trial court found that defendant had satisfied the criteria in Penal Code section 1170.18. The court granted the petition as to count 4 and reduced the drug possession offense to a misdemeanor. The court then resentenced defendant to 46 years to life.
Thereafter, in the Superior Court of Los Angeles, case No. BA210452, defendant petitioned to reduce a conviction for possession of a controlled substance under Health and Safety Code section 11350 to a misdemeanor. On June 25, 2018, the trial court granted the petition and reduced the drug possession offense to a misdemeanor.
On July 18, 2018, defendant filed a petition in propria persona for resentencing in this case. Defendant contended that (1) his three-strike sentence of 71 years to life should be vacated under Proposition 47 and Penal Code section 1170.18 because one of the two prior strike offenses had been reduced to a misdemeanor; and (2) the court should vacate a one-year use of a firearm enhancement due to the recent enactment of Senate Bill 136, which amended Penal Code section 12022.5.
On February 13, 2019, the People filed an opposition to the resentencing petition, limited to Proposition 47, asserting that that defendant's judgment had become final in 2006, and that defendant's Los Angeles conviction was not reduced to a felony until 2017. Therefore, the People argued that defendant's petition should be denied.
On February 15, 2019, at the hearing on the petition, defendant was not present but his counsel was present. Both the prosecutor and defense counsel agreed that defendant's prior conviction in count 4 for possession of a controlled substance had been reduced to a misdemeanor. However, the court ruled that because defendant's conviction was final when Proposition 47 took effect, defendant was ineligible for resentencing under Proposition 47. The court also ruled that defendant's firearm sentencing enhancement under Penal Code section 12022.5 was final when defendant filed his petition. The court denied the petition.
On March 13, 2019, defendant filed a timely notice of appeal from the February 15, 2019 denial. Thereafter, defense counsel filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 426 and Anders v. California (1967) 386 U.S. 738. Defendant filed a personal supplemental brief on October 21, 2019. Thereafter, on October 29, 2019, we ordered defendant to file a supplemental brief addressing the application of Senate Bill 136 to his appeal. We also stated that the People may file a supplemental reply brief. On November 18, 2019, defendant filed his supplemental brief and on December 17, 2019, the People filed their brief.
On December 17, 2019, the People filed a request for judicial notice of our unpublished opinion in defendant's prior appeal, case No. E037666; the request was granted by order on January 3, 2020. On January 14, 2020, the People filed a request for judicial notice of our docket in defendant's prior appeal, case No. E037666; the request was granted by order on January 21, 2020 --------
DISCUSSION
A. WENDE REVIEW
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record. Pursuant to Anders, counsel has stated the following: "Counsel acknowledges that some Court of Appeal justices have expressed a strong desire for listing issues under Anders v. California (1967) 386 U.S. 738, but counsel has carefully weighed the situation and concluded that the approach needed to promote the client's interest in this particular case is to invite court review of the record unfettered by counsel's prior though processes. To assist the court in its review of the record, however, counsel has written a more thorough Statement of the Case than normal."
We offered defendant an opportunity to file a personal supplemental brief. Defendant filed a 22-page handwritten supplemental brief. In his brief, defendant essentially challenges his conviction in this case, and not the court's ruling on his petition that is at issue on this appeal. For example, defendant challenges the finding that defendant had not remained free from prison for five years after suffering two felony convictions in Los Angeles, and his prior convictions. As noted above, we have already issued an opinion on the appeal from defendant's convictions back on 2006. Defendant, therefore, has failed to raise any cognizable issues on this appeal.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error. After reviewing the record, we requested that the parties address the applicability of SB 136 in their supplemental briefs. That issue will be discussed below.
B. SB 136 DOES NOT APPLY
In his supplemental opening brief, defendant contends that "if the enhancement defined by the amended section 667.5, subdivision (b), no longer applies to [defendant], this court should strike the one-year term attached to [defendant]'s sentence under that statute."
On October 8, 2019, SB 136 was signed into law and became effective on January 1, 2020. SB 136 modifies Penal Code section 667.5, subdivision (b), to eliminate the one-year sentences for prior prison terms served unless the prior prison term involves a conviction of a sexually violent offense (which is not involved here). The statute is retroactive and applies to cases not yet final as of its effective date. (See People v. Garcia (2018) 28 Cal.App.5th 961, 972-973.) Here, as noted by the People and the opinion issued in the earlier appeal of defendant's conviction, we affirmed the judgment on May 8, 2006, and a remittitur issued on September 7, 2006. The case, therefore, was final as of the effective date of SB 136—January 1, 2020, and SB 136 does not apply to this case.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. CODRINGTON
J.