Opinion
E066467
11-14-2017
THE PEOPLE, Plaintiff and Respondent, v. BYRON SCOTT, Defendant and Appellant.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV07023) 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.) Remanded with directions. James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant is serving life without the possibility of parole for two murders with special circumstances he committed in 1995, three months before he turned 18 years old. Defendant appeals from the superior court's order denying his petition to recall his sentence and hold a hearing to consider resentencing him to a lesser term under Penal Code section 1170, subdivision (d)(2). The People concede the court should hold a new hearing under the amended and retroactive section 1170, subdivision (d)(2)(B), which no longer allows the court to deny defendant a resentencing hearing based on his failure to establish remorse and rehabilitation. We decline defendant's request to remand with directions to the court to hold the resentencing hearing. Instead, we remand with directions to hold a new hearing under the amended subdivision (d)(2)(B) of section 1170, at which the court will make the factual determination as to whether defendant can establish any one of four factors that would entitle him to a resentencing hearing.
Section references are to the Penal Code except where otherwise indicated.
FACTS AND PROCEDURE
The facts of the crime are taken from the probation report.
Except where otherwise indicated, the procedural history through the first appeal is taken from this court's prior nonpublished opinion. (People v. Scott (March 7, 2014, E058840).) --------
In December 1994, the then 17-year-old defendant stayed for a few weeks at the home of his friend, Melodie Code, and her parents, Linda and Tim Code, because he was not getting along with his father and stepmother. At some point, the Codes decided it was not a "good idea" for defendant to continue staying with them, so at a family conference they asked him to leave by the end of the week. After that, Melodie told her father that she "had words" at school with defendant. On the afternoon of January 17, 1995, defendant entered the Code's home while Tim Code was away on a business trip, intending to steal some items from the house. Seventeen-year-old Melodie came home from school sometime later. In Melodie's upstairs bedroom, defendant choked her, tied her up, cut off her clothes, and attempted to rape her. She died from asphyxiation. Four to five hours later in the evening, defendant heard Linda Code come home. He waited for 15 minutes in Melodie's bathroom until Linda eventually came into Melodie's bedroom. Defendant attacked Linda from behind and, according to the autopsy report, stabbed her approximately 37 times. Defendant took some items from the home and left in the Code's vehicle.
The People charged defendant as an adult with two counts of murder (§ 187), and one count each of residential burglary (§ 459), residential robbery (§ 211), and attempted forcible rape (§§ 664, 261, subd. (a)(2)). The People alleged the special circumstances as to both murders that they were committed during a residential robbery (§ 190.2, subd. (a)(17)), a residential burglary (§ 190.2, subd. (a)(17)), and while lying in wait (§ 190.2, subd. (a)(15)). The People alleged the special circumstance as to Melodie that the murder was committed during an attempted forcible rape (§ 190.2, subd. (a)(17)).
A jury convicted defendant of all counts on May 23, 1996. The jury found true each of the special circumstance allegations, except the lying-in-wait special circumstance allegation as to Melodie.
The court sentenced defendant on July 11, 1996. The court imposed the aggravated term of six years for the burglary, imposed and stayed the aggravated term of three years for the robbery, and imposed the middle term of one year for the attempted rape, to run consecutive to the sentence for the burglary. The determinate term was therefore set at seven years. As to the murder counts, the court imposed two consecutive life terms without the possibility of parole.
On March 27, 2013, approximately 17 years after beginning to serve his sentence, defendant filed a petition with the superior court to recall his sentence pursuant to section 1170, former subdivision (d)(2). That provision then stated, in relevant part: "When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has served at least 15 years of that sentence, the defendant may submit to the sentencing court a petition for recall and resentencing." (§ 1170, former subd. (d)(2)(A)(i).)
However, the superior court treated defendant's petition as if it were one to recall a sentence under the "Three Strikes" law. (§ 1170.126.) The court denied the petition, noting first that defendant was not sentenced under the Three Strikes law, and second that he would have been ineligible for resentencing under section 1170.126 because his current offenses include two counts of murder.
Defendant appealed and, in an opinion filed March 7, 2014, this Court reversed the superior court's order with directions to properly exercise its discretion under section 1170, subdivision (d)(2), and the relevant criteria stated therein.
The superior court reappointed the public defender. The matter was continued a number of times. On March 20, 2015, the superior court granted defendant in propria persona status. Defendant filed several motions and other pleadings in support of resentencing. On May 14, 2015, the People filed its opposition. On June 5, 2015, the court denied the petition after determining defendant was not entitled to have his sentence recalled and a resentencing hearing scheduled. Specifically, the court found defendant did not make the required showings of remorse and actions of rehabilitation by a preponderance of the evidence.
On August 19, 2015, defendant filed a notice of appeal. On July 22, 2016, this Court ordered the notice of appeal be construed to have been timely filed.
DISCUSSION
Defendant argues the superior court abused its discretion when it denied him a hearing on his petition.
Section 1170, subdivision (d)(2), allows an inmate to petition for recall of sentence where the inmate is subject to a life sentence without possibility of parole, the inmate was under 18 years of age when the crime was committed, and the inmate has served at least 15 years of the sentence.
The petition must describe the inmate's remorse for the crime and work toward rehabilitation, and must include a statement or showing of any one of these four possible mitigating circumstances: (1) conviction under the felony-murder rule or as an aider and abettor; (2) no significant juvenile felony adjudications for assault or crimes involving personal harm; (3) committing the crime with at least one adult codefendant; or (4) taking actions toward rehabilitation or which demonstrate remorse. (§ 1170, subd. (d)(2)(B)(i)-(iv).)
At the time of the hearing on defendant's petition, the statute provided that the superior court "shall hold a hearing to consider whether to recall the sentence and commitment previously ordered and to resentence the defendant in the same manner as if the defendant had not previously been sentenced" if it "finds by a preponderance of the evidence that the statements in the petition are true." (§ 1170, subd. (d)(2)(E), italics added.) Should the court decide to hold a resentencing hearing, the statute then lists a number of factors for it to consider in determining whether to resentence the defendant to a lesser term. (§ 1170, subd. (d)(2)(F) & (G).)
Here, the superior court stated that it could not find by a preponderance of the evidence that defendant's allegations of remorse and rehabilitation were true. "[T]he petition must indicate and make a showing of remorse and actions of rehabilitation and must be proven by a preponderance of the evidence. The Court finds that in this case defendant has failed to meet that burden. [¶] That the allegations of both remorse and rehabilitation are insufficient and there is nothing to support those allegations. And nothing to even make a prime facie showing of those factors by a preponderance of the evidence."
However, effective January 1, 2017, section 1170, subdivision (d)(2)(E), was amended to provided that the superior court "shall recall the sentence and commitment previously ordered and hold a hearing to resentence the defendant in the same manner as if the defendant had not previously been sentenced" if it "finds by a preponderance of the evidence that one or more of the statements specified in clauses (i) to (iv), inclusive, of subparagraph (B) is true." In other words, the court under the amended language must hold the resentencing hearing if it finds by a preponderance of the evidence any one of the four factors set forth in section 1170, subdivision (d)(2)(b)(i)-(iv) (felony murder or aiding/abetting; no juvenile felonies involving personal harm; adult codefendant; actions toward rehabilitation) even if, as the court found in 2015, defendant did not establish his remorse or actions of rehabilitation by a preponderance of the evidence. This amendment is retroactive. (§ 1170, subd. (d)(2)(J) ["This subdivision shall have retroactive application."].)
We must therefore remand this matter to the superior court so it can proceed under the amended section 1170, subdivision (d)(2)(E). Defendant asks this court to direct the superior court to hold a resentencing hearing, arguing the record reflects, as a matter of law, that he has already made the required showing. We disagree. Whether one or more of the four factors in section 1170, subdivision (d)(2)(B), applies in this case is clearly an issue of fact for the superior court to determine.
DISPOSITION
The matter is remanded to the superior court with directions to determine whether defendant is entitled to a hearing to decide whether he should be resentenced to a lesser term than life without parole.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. CODRINGTON
J.