People v. Scott CA4/2

Opinion

Filed 3/24/21 P. v. Scott CA4/2 See dissenting opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E073100

v. (Super.Ct.No. RIF077569)

CHARLES KANARD SCOTT, JR., OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed.

Robert L.S. Angres, 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, Natasha Cortina, Tami Falkenstein

Hennick, and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.

1 After a superior court judge granted defendant and appellant Charles Kanard

Scott’s petition for writ of habeas corpus and remanded the matter to the sentencing

department to permit the People to prove defendant had suffered a prior serious felony

and prior strike conviction, the sentencing court found that sufficient evidence supported

the prior conviction enhancements. On appeal, defendant contends that insufficient

evidence supports the court’s finding that his prior conviction amounted to a serious

felony. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND1

On September 10, 1998, a jury convicted defendant of attempted murder (Pen.

Code §§ 664, 187, count 1),2 attempted voluntary manslaughter (§§ 664, 192, subd. (a),

count 2), shooting at an inhabited home (§ 246, count 3), and being a convicted felon in

possession of a firearm (former § 12021, subd. (a)(1), count 4). The jury additionally

found true allegations that defendant had personally used a firearm during the

commission of counts 1 through 3. (§ 12022.5, subd. (a).) The trial court thereafter

found true allegations that defendant had suffered two prior strike convictions (§§ 667,

subds. (c), (e), 1170.12, subd. (c)), two prior serious felony convictions (§ 667, subd. (a)),

and two prior prison terms (§ 667.5, subd. (b)).

1We take judicial notice of our nonpublished opinion in People v. Scott (Feb. 29, 2000, E023696), defendant’s appeal from his conviction. (Evid. Code, §§ 452, subd. (d), 459.)

2 All further statutory references are to the Penal Code unless otherwise indicated.

2 On November 16, 1998, the trial court sentenced defendant, as a third strike

offender, to four consecutive 25-year-to-life terms on the substantive offenses and a

consecutive term of 25 years four months on the remaining enhancements. Defendant

appealed, and this court affirmed the judgment. (People v. Scott, supra, E023696.)

On August 2, 2018, defendant filed a petition for writ of habeas corpus in the

superior court alleging the evidence supporting the true findings on one of the prior

serious felony convictions and prior strike conviction enhancements was

unconstitutionally infirm. On December 18, 2018, a superior court judge issued an order

to show cause why relief should not be granted based on petitioner’s claims that he was

entitled to relief pursuant to People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo).3

On February 20, 2019, the People filed a return to the petition asserting defendant

failed to establish his burden of showing the judgment against him was invalid, and the

issue should have been raised on appeal. The People further maintained that even

pursuant to Gallardo, the record in the case supported the true findings on the

enhancements.

At a hearing on April 18, 2019, the superior court judge informed the parties that

the tentative decision was to grant defendant’s petition and remand the matter to the

sentencing department pursuant to Gallardo. The judge reasoned that the sentencing

court had improperly reviewed the probation report in rendering a true finding on the

prior conviction enhancements and stated: “I think there are ambiguities . . . in the

3 The People apparently filed an informal response to defendant’s petition, which is not included in the record on appeal.

3 sentencing that would have been cleared up by the probation report which is clearly . . .

inadmissible, in order to determine whether that constituted a strike or not.” After

argument by the parties, the superior court judge granted the petition and remanded the

matter to the sentencing department to “‘[p]ermit the People to demonstrate to the trial

court, based on the record of the prior plea proceedings, that defendant’s guilty plea

encompassed a relevant admission about the nature of the crime.’”

On June 19, 2019, the parties filed a joint statement of the issues remaining to be

addressed, which they framed as follows: “1. Whether the transcript considered by the

trial court and designated Exhibit 4 in the habeas proceeding, and attached herewith, is

admissible evidence of the facts underlying defendant’s prior conviction; and if so, [¶]

2. Whether the transcript supports the People’s burden of showing that the defendant

personally inflicted the injury and that the victim was not an accomplice.”

Exhibit 4 consists of a reporter’s transcript of defendant’s guilty plea on August 8,

1991, for battery while inflicting serious bodily injury. (§ 243, subd. (d).) The judge

noted that defendant had already pled guilty to the offense. However, the plea bargain

had been changed so that defendant would be sentenced to state prison for the low term

of two years, to be served concurrently with his two-year sentence in another case, where

defendant had pled guilty to assault with a firearm. (§ 245, subd. (a)(2).) Defendant

agreed to the change in the plea. The factual basis for the plea of guilty to the battery

while inflicting serious bodily injury charge consisted of the following colloquy:

4 “[DEFENSE COUNSEL]: The factual basis is my client got into a fight with the

victim alleged in Count I, . . . and [the victim] suffered a very large contusion and a

broken tooth.

“THE COURT: You heard what your attorney . . . says, do you agree with

that . . . , is that a statement of the events?

“[DEFENDANT]: I didn’t hear it.

“[DEFENSE COUNSEL]: [The victim] had a broken tooth and a large bruise—

contusion after—

“THE COURT: After you had a fight with him; is that correct?

“[DEFENDANT]: Yes.”

The matter was thereafter continued for the preparation of a probation report.

On June 24, 2019, defendant filed a supplemental brief asserting that even if the

court could consider the August 8, 1991 “sentencing” transcript, it failed to prove that

defendant had personally committed the battery, which was requisite for a finding that

defendant’s conviction qualified as a serious felony and prior strike conviction. At the

June 25, 2019 hearing, defense counsel argued that “the trial court considered not what

was given as the factual basis for the guilty plea, but instead the colloquy that happened

during a sentencing proceeding.” The judge responded: “That was a factual basis for a

guilty plea.” Defense counsel replied: “No, sir. That was actually—when imposing the

sentence, what the Court had done is not reference the actual colloquy that occurred

during the taking of the guilty plea. I understand that it reads that way and it appears that

way when reading the transcript, but the colloquy that actually occurred, that the Court

5 referenced and that I cited in the supplemental brief, was actually not the date that the

plea was taken.”

Defense counsel additionally argued that the factual basis for the plea was

insufficient to sustain the prior conviction enhancements because there was insufficient

evidence the injury was inflicted on a victim, rather than an accomplice, and that

defendant, rather than an accomplice, had inflicted the injury. The People contended that

the August 1991 transcript was both admissible and sufficient for proving the truth of the

prior conviction enhancements, particularly when indulging in rational inferences

therefrom.

On June 25, 2019, the superior court judge found that the August 1991 transcript

of the factual basis was admissible to prove the prior conviction enhancements. The

court also found that the victim of the battery was not an accomplice: “The victim was

not an accomplice. One cannot be an accomplice. It is impossible. It is a legal

impossibility to be an accomplice in your own battery. That is abundantly clear. He’s

specifically referred to as ‘the victim.’ When we talk about accomplices, that’s

something that happens to someone helping you—that is someone who is participating in

the target offense.”

The court further found that the factual basis was sufficient to prove that defendant

personally inflicted the injury on the victim: “I think in order for me to read it, there is a

possibility that there might have been others involved . . . this colloquy would be to

elevate form over substance.” “The defendant . . . specifically admitted that he did get in

a fight with the victim, and as a result of that fight, the victim had a broken tooth and a

6 large contusion.” The victim “was the named victim. The victim is this person, and so

he is the victim of the [great bodily injury] and the target offense, which was the 243(d).”

II. DISCUSSION

Defendant contends insufficient evidence supports the superior court’s finding that

he personally inflicted serious bodily injury upon the victim, rather than an accomplice.

We disagree.

In Gallardo, supra, 4 Cal.5th 120, the court, in considering Descamps v. United

States (2013) 570 U.S. 254, determined that its prior sanctioned approach was “no longer

tenable insofar as it authorize[d] trial courts to make findings about the conduct that

‘realistically’ gave rise to a defendant’s prior conviction.” (Gallardo, at p. 134.) The

court held: “The trial court’s role is limited to determining the facts that were necessarily

found in the course of entering the conviction. To do more is to engage in ‘judicial

factfinding that goes far beyond the recognition of a prior conviction.’” (Ibid.)

“[W]e now hold that a court considering whether to impose an increased sentence

based on a prior qualifying conviction may not determine the ‘nature or basis’ of the prior

conviction based on its independent conclusions about what facts or conduct

‘realistically’ supported the conviction. [Citation] That inquiry invades the jury’s

province by permitting the court to make disputed findings about ‘what a trial showed, or

a plea proceeding revealed, about the defendant’s underlying conduct.’ [Citation.] The

court’s role is, rather, limited to identifying those facts that were established by virtue of

the conviction itself—that is, facts the jury was necessarily required to find to render a

7 guilty verdict, or that the defendant admitted as the factual basis for a guilty plea.”

(Gallardo, supra, 4 Cal.5th at p. 136.)

Where a trial court has violated this tenet, “the appropriate course is to remand to

permit the trial court to make the relevant determinations about what facts defendant

admitted in entering her plea. Our precedent instructs that determinations about the

nature of prior convictions are to be made by the court, rather than a jury, based on the

record of conviction.” (Gallardo, supra, 4 Cal.5th at p. 138.)

“‘The People must prove all elements of an alleged sentence enhancement beyond

a reasonable doubt.’ [Citation.] ‘On review, we examine the record in the light most

favorable to the judgment to ascertain whether it is supported by substantial evidence. In

other words, we determine whether a rational trier of fact could have found that the

prosecution sustained its burden of proving the elements of the sentence enhancement

beyond a reasonable doubt.’” (People v. Hudson (2018) 28 Cal.App.5th 196, 203

[standard of review applied on appeal in which the defendant alleged the court had

rendered a Gallardo error].) “[T]he trier of fact may draw reasonable inferences from

the record presented. Absent rebuttal evidence, the trier of fact may presume that an

official government document, prepared contemporaneously as part of the judgment

record and describing the prior conviction, is truthful and accurate. Unless rebutted, such

a document, standing alone, is sufficient evidence of the facts it recites about the nature

and circumstances of the prior conviction.” (People v. Miles (2008) 43 Cal.4th 1074,

1083.)

8 “Battery with serious bodily injury is not one of the crimes specified in

section 1192.7, subdivision (c) as a ‘serious felony.’” (People v. Bueno (2006)

143 Cal.App.4th 1503, 1508.) “[O]ne can commit a battery within the meaning of

section 243, subdivision (d) without committing a serious felony within the meaning of

section 1192.7, subdivision (c)(8).” (Ibid.) “[T]o establish that the battery was a serious

felony the People [are] required to show that [defendant] personally inflicted the injury,

rather than that he aided and abetted another [citation], and that the victim was not an

accomplice.” (Ibid.)

Here, sufficient evidence supports the superior court’s finding that defendant

personally inflicted serious bodily injury on a nonaccomplice. Defendant admitted that

he was in a fight with the named victim, and the victim thereafter suffered “a broken

tooth” and “a very large contusion.” The court could and did rationally infer from that

admission that defendant personally inflicted serious bodily injury on a nonaccomplice.

There was no indication that anyone other than defendant and the named victim were

involved in the altercation. Thus, sufficient evidence supports the true finding on the

prior serious felony and prior strike conviction enhancements.

9 III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J. I concur:

CODRINGTON J.

10 [People v. Scott, Jr., E073100]

MENETREZ, J., Dissenting.

The majority opinion’s application of the substantial evidence standard of review

masks the opinion’s failure to follow People v. Gallardo (2017) 4 Cal.5th 120

(Gallardo). In 1991, Charles Kanard Scott, Jr., admitted facts constituting the felony of

battery with serious bodily injury, to which he pled guilty. The admitted facts do not

constitute a serious felony under subdivision (c) of Penal Code section 1192.7

(subsequent statutory citations are to this code). But the majority opinion, applying

substantial evidence review, starts with the admitted facts and then infers additional facts

that do constitute a serious felony, thereby supporting the third strike sentence that Scott

received in a later case in 1998. The majority opinion also relies on People v. Miles

(2008) 43 Cal.4th 1074 (Miles) for the proposition that the sentencing court “‘may draw

reasonable inferences from the record presented’” in determining whether a prior

conviction is a serious felony. (Maj. opn., ante, at p. 8.) But Miles predates Gallardo, is

inconsistent with (though not expressly overruled by) Gallardo, and is based in part on

the case that Gallardo overruled, People v. McGee (2006) 38 Cal.4th 682 (McGee).

Because the majority opinion’s approach violates Gallardo, I respectfully dissent.

Under Gallardo, “a court considering whether to impose an increased sentence

based on a prior qualifying conviction” is “limited to identifying those facts that were

established by virtue of the conviction itself—that is, facts the jury was necessarily

required to find to render a guilty verdict, or that the defendant admitted as the factual

basis for a guilty plea.” (Gallardo, supra, 4 Cal.5th at p. 136.) Thus, “[t]he trial court's

1 role is limited to determining the facts that were necessarily found in the course of

entering the conviction. To do more is to engage in ‘judicial factfinding that goes far

beyond the recognition of a prior conviction.’” (Id. at p. 134.) The court “may not

determine the ‘nature or basis’ of the prior conviction based on its independent

conclusions about what facts or conduct ‘realistically’ supported the conviction.

[Citation.] That inquiry invades the jury’s province by permitting the court to make

disputed findings about ‘what a trial showed, or a plea proceeding revealed, about the

defendant’s underlying conduct.’” (Id. at p. 136, italics added.)

Battery with serious bodily injury under section 243, subdivision (d), is not listed

as a serious felony under section 1192.7, subdivision (c). But “any felony in which the

defendant personally inflicts great bodily injury on any person, other than an

accomplice,” is a serious felony under section 1192.7, subdivision (c)(8).

Personal infliction of great bodily injury and the victim’s not being an accomplice

are not elements of battery with serious bodily injury under section 243, subdivision (d).

But if a defendant commits battery with serious bodily injury and personally inflicts great

bodily injury and the victim is not an accomplice, then the offense becomes a serious

felony under section 1192.7, subdivision (c)(8). (People v. Bueno (2006) 143

Cal.App.4th 1503, 1508.)

In 1991, Scott pled guilty to battery with serious bodily injury under section 243,

subdivision (d). He admitted facts constituting the elements of the offense and nothing

more—he admitted that he was in a fight with the victim and that afterward the victim

had a broken tooth and a large contusion. Scott did not admit that he personally inflicted

2 great bodily injury or that the victim was not an accomplice—he did not admit anything

about who inflicted the victim’s injuries or whether the victim was an accomplice in

some other crime. The plea colloquy is quoted in full in the majority opinion. (Maj.

opn., ante, at p. 5.) It reflects that defense counsel and the court were very precise when

eliciting Scott’s admission of the factual basis for the plea. They had Scott admit only

the elements of the crime to which he pled guilty.

In 1998, Scott was convicted by jury of multiple felonies, including attempted

murder. The information alleged two prior serious felony convictions and two prior

strike convictions, including the 1991 battery with serious bodily injury. The court found

the prior conviction allegations true and sentenced Scott as a third strike offender on that

basis.

In 2018, Scott petitioned the superior court for a writ of habeas corpus on the

ground that under Gallardo, supra, 4 Cal.5th 120, the evidence was constitutionally

insufficient to support the true finding on the serious felony and strike conviction

enhancements as to the 1991 battery. The superior court granted the petition and

remanded the matter to the sentencing court to give the prosecution the opportunity to

3 prove that Scott’s “‘guilty plea encompassed a relevant admission about the nature of the

crime.’”1

The sentencing court rejected Scott’s claim, concluding that it “elevate[s] form

over substance.” The majority opinion affirms because we can “rationally infer from

[Scott’s] admission[s] that defendant personally inflicted serious bodily injury on a

nonaccomplice.” (Maj. opn., ante, at p. 9.)

That is a straightforward violation of Gallardo. The sole issue before us is

whether Scott admitted facts constituting a strike. He did not. It does not matter that we

can rationally infer additional, nonadmitted facts that constitute a strike. To take those

additional inferential steps, no matter how rational, is to engage in exactly the kind of

judicial factfinding that Gallardo forbids. (See, e.g., People v. Strike (2020) 45

Cal.App.5th 143, 152-153; People v. Hudson (2018) 28 Cal.App.5th 196, 208-209.)

Finally, as already noted, the majority opinion’s reliance on Miles is misplaced.

The statement in Miles that the sentencing court “may draw reasonable inferences from

the record presented” (Miles, supra, 43 Cal.4th at p. 1083) is inconsistent with Gallardo.

Gallardo limits the sentencing court to consideration of the facts “the defendant admitted

1 Our court has previously held that Gallardo applies retroactively to final judgments (In re Brown (2020) 45 Cal.App.5th 699, 714-722, review granted June 10, 2020, S261454), but the issue is currently pending before the Supreme Court (In re Milton (2019) 42 Cal.App.5th 977, 982, 988-999, review granted Mar. 11, 2020, S259954). Here, the superior court applied Gallardo retroactively in granting Scott’s habeas petition, and the People did not appeal. Accordingly, the People expressly decline to contest the retroactivity issue on this appeal. Thus, regardless of whether the Supreme Court determines that Gallardo is retroactive in general, for purposes of the instant case Gallardo applies.

4 as the factual basis for a guilty plea” (Gallardo, supra, 4 Cal.5th at p. 136); the court

cannot consider reasonable inferences from those admitted facts. It is consequently

unsurprising that the analysis in Miles is partly based on McGee, supra, 38 Cal.4th 682

which Gallardo overruled. (See Miles, at p. 1088, fn. 10 [citing McGee for proposition

that “relevant inquiry is whether record discloses ‘realistic[]’ possibility that prior

conviction ‘may have been based on conduct that would not constitute a serious felony

under California law’”]; Gallardo, at p. 136 [overruling McGee’s holding that a

sentencing court may base its decision “on its independent conclusions about what facts

or conduct ‘realistically’ supported the conviction”].)

For all of these reasons, I respectfully dissent. The order should be reversed and

the matter remanded for resentencing.

MENETREZ J.