Filed 5/20/24 P. v. Scott CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E082039
v. (Super.Ct.No. RIF148527)
JAVANTE MARQUIS SCOTT, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Jorge C. Hernandez,
Judge. Affirmed.
Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, Felicity A. Senoski
and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
1 A prisoner serving a 120-year-to-life sentence after conviction on three counts of
attempted murder (with enhancements) petitioned under the law allowing resentencing
for people convicted of attempted murder under the now-abrogated natural and probable
consequences theory. However, the record of conviction establishes he was not convicted
under such a theory, and procedural errors at the prima facie hearing stage do not require
reversing for a new hearing. We affirm.
I
FACTS
The People charged and tried appellant Javante Marquis Scott on three counts of
attempted willful, premeditated, and deliberate murder. (Pen. Code, §§ 664/187, subd.
(a), unlabeled statutory citations refer to this code.) The People also tried Scott for
personally and intentionally discharging a firearm causing great bodily injury or death
(§ 12022.53, subds. (d), (e)), inflicting great bodily injury and death on a person, not an
occupant of a motor vehicle, by discharging a firearm from a motor vehicle (§ 12022.55),
and acting for the benefit of, at the direction of, and in association with a criminal street
gang (§ 186.22, subd. (b)).
The trial court instructed the jury that to find Scott guilty of attempted murder it
would have to find “[t]he defendant took at least one direct but ineffective step toward
killing another person” and “intended to kill that person.” The trial court also instructed,
“If you find the defendant guilty of attempted murder under Counts 1, 2 and 3, you must
then decide whether the People have proved the additional allegation that the attempted
2 murder was done willfully, and with deliberation and premeditation. [¶] The defendant
acted willfully if he intended to kill when he acted. The defendant deliberated if he
carefully weighed the considerations for and, knowing the consequences, decided to kill.
The defendant premeditated if he decided to kill before acting.” The court also instructed
the jury to decide whether Scott “personally discharged a firearm during the commission
or attempted commission of th[e] crime” and “intended to discharge the firearm.” The
trial court did not instruct the jury on attempted murder under a natural and probable
consequences theory, on aiding and abetting, or on the felony-murder rule (which does
not apply to attempted murder in any event).
In September 2010, the jury found Scott guilty of three counts of attempted
willful, deliberate, and premeditated murder, and found the enhancement allegations to be
true. The trial court sentenced Scott to prison for 120 years to life, and we affirmed after
ordering some modifications. (People v. Scott (May 17, 2012, E052276) 2012 WL
1746142 [nonpub. opn.].)
In July 2023, Scott petitioned for resentencing under section 1172.6. Scott’s
petition alleged (1) a complaint, information, or indictment was filed against him that
allowed the prosecution to proceed under a theory of attempted murder under the natural
and probable consequences doctrine, (2) he was convicted of attempted murder following
a trial, and (3) he could not presently be convicted of attempted murder because of
changes made to sections 188 and 189, effective January 1, 2019. The court appointed
counsel to represent Scott, as required by the statute, and set a hearing to determine
3 whether Scott had made a prima facie case for eligibility, which would require the court
to issue an order to show cause and hold an evidentiary hearing.
Neither the People nor Scott filed briefs with the trial court. At the prima facie
hearing in August 2023, the People told the court, “We sent [defense counsel] the jury
instructions in this case on the 21st of August. Further, the defendant testified, and this is
a self-defense case, but more importantly the jury instructions did not include natural and
probable consequences, felony murder, or any other theory by which malice could be
imputed to the defendant. We’d ask that the petition be denied because of that.” Scott’s
counsel told the court, “I confirm everything counsel said. I believe the aiding and
abetting [instruction] was also not given. I’ll submit.”
The trial court denied the petition without stating its reasons.
II
ANALYSIS
Scott argues the trial court erred by ruling he did not make out a prima facie case
because the People failed to submit a brief setting out their objections to his eligibility
and failed to submit into evidence at the hearing the jury instructions that supported their
argument. We conclude there was no error, because the parties agreed the record of
conviction established Scott was not convicted under a natural and probable
consequences theory. The trial court was entitled to rely on counsel’s representations as a
basis for that ruling.
4 Scott argues we should return the case to the trial court because the failure to
submit the jury instructions as an exhibit at the trial court hearing deprives this court of
an adequate record to conduct a review. However, the People have remedied any such
problem by moving for judicial notice of the record in Scott’s first appeal, a motion we
have granted. That record shows the People’s representations about the jury instructions
(and his own counsel’s concession) to be accurate. At trial, Scott did not request, and the
court did not give, an instruction on the natural and probable consequences doctrine.
This resolves the petition as a matter of law. It is well established a petitioner like
Scott is entitled to relief under section 1172.6 only if he could have been convicted (or
pled guilty to) murder, attempted murder, or manslaughter under a theory abrogated by
Senate Bill No. 1437 or Senate Bill No. 775. Under section 1172.6, “[a] person convicted
of felony murder or murder under the natural and probable consequences doctrine or
other theory under which malice is imputed to a person based solely on that person’s
participation in a crime, attempted murder under the natural and probable consequences
doctrine, or manslaughter may file a petition with the court that sentenced the petitioner
to have the petitioner’s murder, attempted murder, or manslaughter conviction vacated
and to be resentenced on any remaining counts.” (§ 1172.6, subd. (a), italics added.) As
the statutory text makes plain, a petitioner convicted of attempted murder is eligible for
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Filed 5/20/24 P. v. Scott CA4/2
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, E082039
v. (Super.Ct.No. RIF148527)
JAVANTE MARQUIS SCOTT, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Jorge C. Hernandez,
Judge. Affirmed.
Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, Felicity A. Senoski
and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
1 A prisoner serving a 120-year-to-life sentence after conviction on three counts of
attempted murder (with enhancements) petitioned under the law allowing resentencing
for people convicted of attempted murder under the now-abrogated natural and probable
consequences theory. However, the record of conviction establishes he was not convicted
under such a theory, and procedural errors at the prima facie hearing stage do not require
reversing for a new hearing. We affirm.
I
FACTS
The People charged and tried appellant Javante Marquis Scott on three counts of
attempted willful, premeditated, and deliberate murder. (Pen. Code, §§ 664/187, subd.
(a), unlabeled statutory citations refer to this code.) The People also tried Scott for
personally and intentionally discharging a firearm causing great bodily injury or death
(§ 12022.53, subds. (d), (e)), inflicting great bodily injury and death on a person, not an
occupant of a motor vehicle, by discharging a firearm from a motor vehicle (§ 12022.55),
and acting for the benefit of, at the direction of, and in association with a criminal street
gang (§ 186.22, subd. (b)).
The trial court instructed the jury that to find Scott guilty of attempted murder it
would have to find “[t]he defendant took at least one direct but ineffective step toward
killing another person” and “intended to kill that person.” The trial court also instructed,
“If you find the defendant guilty of attempted murder under Counts 1, 2 and 3, you must
then decide whether the People have proved the additional allegation that the attempted
2 murder was done willfully, and with deliberation and premeditation. [¶] The defendant
acted willfully if he intended to kill when he acted. The defendant deliberated if he
carefully weighed the considerations for and, knowing the consequences, decided to kill.
The defendant premeditated if he decided to kill before acting.” The court also instructed
the jury to decide whether Scott “personally discharged a firearm during the commission
or attempted commission of th[e] crime” and “intended to discharge the firearm.” The
trial court did not instruct the jury on attempted murder under a natural and probable
consequences theory, on aiding and abetting, or on the felony-murder rule (which does
not apply to attempted murder in any event).
In September 2010, the jury found Scott guilty of three counts of attempted
willful, deliberate, and premeditated murder, and found the enhancement allegations to be
true. The trial court sentenced Scott to prison for 120 years to life, and we affirmed after
ordering some modifications. (People v. Scott (May 17, 2012, E052276) 2012 WL
1746142 [nonpub. opn.].)
In July 2023, Scott petitioned for resentencing under section 1172.6. Scott’s
petition alleged (1) a complaint, information, or indictment was filed against him that
allowed the prosecution to proceed under a theory of attempted murder under the natural
and probable consequences doctrine, (2) he was convicted of attempted murder following
a trial, and (3) he could not presently be convicted of attempted murder because of
changes made to sections 188 and 189, effective January 1, 2019. The court appointed
counsel to represent Scott, as required by the statute, and set a hearing to determine
3 whether Scott had made a prima facie case for eligibility, which would require the court
to issue an order to show cause and hold an evidentiary hearing.
Neither the People nor Scott filed briefs with the trial court. At the prima facie
hearing in August 2023, the People told the court, “We sent [defense counsel] the jury
instructions in this case on the 21st of August. Further, the defendant testified, and this is
a self-defense case, but more importantly the jury instructions did not include natural and
probable consequences, felony murder, or any other theory by which malice could be
imputed to the defendant. We’d ask that the petition be denied because of that.” Scott’s
counsel told the court, “I confirm everything counsel said. I believe the aiding and
abetting [instruction] was also not given. I’ll submit.”
The trial court denied the petition without stating its reasons.
II
ANALYSIS
Scott argues the trial court erred by ruling he did not make out a prima facie case
because the People failed to submit a brief setting out their objections to his eligibility
and failed to submit into evidence at the hearing the jury instructions that supported their
argument. We conclude there was no error, because the parties agreed the record of
conviction established Scott was not convicted under a natural and probable
consequences theory. The trial court was entitled to rely on counsel’s representations as a
basis for that ruling.
4 Scott argues we should return the case to the trial court because the failure to
submit the jury instructions as an exhibit at the trial court hearing deprives this court of
an adequate record to conduct a review. However, the People have remedied any such
problem by moving for judicial notice of the record in Scott’s first appeal, a motion we
have granted. That record shows the People’s representations about the jury instructions
(and his own counsel’s concession) to be accurate. At trial, Scott did not request, and the
court did not give, an instruction on the natural and probable consequences doctrine.
This resolves the petition as a matter of law. It is well established a petitioner like
Scott is entitled to relief under section 1172.6 only if he could have been convicted (or
pled guilty to) murder, attempted murder, or manslaughter under a theory abrogated by
Senate Bill No. 1437 or Senate Bill No. 775. Under section 1172.6, “[a] person convicted
of felony murder or murder under the natural and probable consequences doctrine or
other theory under which malice is imputed to a person based solely on that person’s
participation in a crime, attempted murder under the natural and probable consequences
doctrine, or manslaughter may file a petition with the court that sentenced the petitioner
to have the petitioner’s murder, attempted murder, or manslaughter conviction vacated
and to be resentenced on any remaining counts.” (§ 1172.6, subd. (a), italics added.) As
the statutory text makes plain, a petitioner convicted of attempted murder is eligible for
relief only if the conviction was “based on the natural and probable consequences
doctrine.” (People v. Coley (2022) 77 Cal.App.5th 539, 548.)
5 The jury instructions, and counsel’s representations, establish Scott’s jury was not
instructed on the natural and probable consequences doctrine, and therefore could not
have convicted him based on that theory.
Scott argues we should send the petition back to the trial court because it did not
conduct a proper prima facie inquiry. He objects that the court ruled even though the
People did not file a brief setting out their response. He points out the statute directs “the
prosecutor shall file and serve a response” within 60 days of service of a facially valid
petition. (§ 1172.6, subd. (c).) He also objects that the court ruled without providing a
statement of reasons, as required. (§ 1172.6, subd. (c) [“If the court declines to make an
order to show cause, it shall provide a statement fully setting forth its reasons for doing
so”].) He argues this last failure violated his federal procedural due process rights.
The trial court did not err by ruling without having first received a written
response from the People. The relevant provision directs the trial court to hold a prima
facie hearing “[a]fter the parties have had an opportunity to submit briefings.” (§ 1172.6,
subd. (c), italics added.) The parties had the opportunity to file written arguments but
chose not to. Instead, they communicated outside of court about the important record
facts and appeared at the prima facie hearing to inform the court of what they found. As it
happens, the record establishes Scott is not eligible for relief under the statute as a matter
of law. We see no error in the trial court ruling based on the parties’ oral representations
about the facts of the case. The procedure followed is “consistent with the statute’s
6 overall purpose: to ensure that murder culpability is commensurate with a person’s
actions, while also ensuring that clearly meritless petitions can be efficiently addressed
as part of a single-step prima facie review process.” (People v. Lewis (2021) 11 Cal.5th
952, 971, italics added.)
Even if the procedure constituted error, there is no reasonable probability the trial
court would have issued an order to show cause if the People had put their position in
writing before the hearing. (People v. Hurtado (2023) 89 Cal.App.5th 887, 893.)
We also conclude the failure of the trial court to provide a statement of its reasons
for refusing to make an order to show cause does not warrant reversal. The trial court’s
basis for denying the petition was plain. Both the People and Scott’s counsel represented
the jury instructions did not permit Scott’s jury to find him guilty of attempted murder
under a natural and probable consequences theory. This reason was the only basis
provided for denying the petition, and it established Scott’s petition was meritless as a
matter of law. While trial courts are required to provide a short statement of the basis for
such rulings, the trial court’s failure to do so here neither violated his federal procedural
due process rights nor was it prejudicial. (People v. Hurtado, supra, 89 Cal.App.5th at
p. 892 [“a trial court’s statutory omissions at the first step of the section 1172.6 process
are not state or federal constitutional violations”].)
7 III
DISPOSITION
We affirm the order denying Scott’s petition for resentencing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL J.
We concur:
McKINSTER Acting P. J.
CODRINGTON J.