Scott v. Superior Court CA4/2

• Court: California Court of Appeal
• Decided: February 6, 2023
• Docket: E079281
• Status: Unpublished

Opinion

Filed 2/6/23 Scott v. Superior Court CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

GEROME SCOTT,

Petitioner, E079281

v. (Super.Ct.No. FVI19002377)

THE SUPERIOR COURT OF SAN OPINION BERNARDINO COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

ORIGINAL PROCEEDINGS; petition for writ of mandate. Christopher S.

Pallone, Judge. Granted.

Thomas W. Sone, Public Defender, Benjamin Russi, and Ed O’Brien, Deputy

Public Defenders, for Petitioner.

No appearance for Respondent.

Jason Anderson, District Attorney, and Robert W. Knox, Deputy District

Attorney, for Real Party in Interest.

1 In March 2020, petitioner Gerome Scott pleaded no contest to criminal charges 1 that included a gang enhancement under Penal Code section 186.22, subdivision (b), and

was released from jail on probation. In May 2022, while probation revocation

proceedings were pending, Scott filed a motion to vacate his judgment. The motion

sought to undo his plea agreement based on changes to section 186.22 brought about by

Assembly Bill No. 333 (2021-2022 Reg. Session) (Assembly Bill 333). The trial court

denied the motion.

We now consider Scott’s petition for a writ of mandate, which requests that we

direct the trial court to vacate its order denying his motion to vacate judgment and issue a

new order granting the motion. We grant the petition.

FACTS

This case arises from an incident on August 31, 2019, apparently motivated by

Scott’s belief that his neighbor had called 911 on him during a domestic dispute. At the

preliminary hearing, the prosecution presented evidence that Scott threatened to kill the

neighbor, removing his shirt to display gang tattoos and announcing his gang

membership as he did so. Scott reportedly said that he would bring his fellow gang

members over and the neighbor would never be able to walk the street again. A gang

expert identified Scott as a member of a specific gang. The expert also testified about

several offenses previously committed by other members of the gang. The expert opined

1 Further undesignated statutory references are to the Penal Code.

2 that Scott’s threats of violence, combined with his display of “allegiance” to the gang,

had reputational benefit to both the gang and to Scott personally.

In March 2020, Scott pleaded no contest to one count of making a criminal threat

in violation of section 422, subdivision (a), and admitted to a gang enhancement under

section 186.22, subdivision (b), in exchange for suspended imposition of sentence, 36 2 months of supervised probation, and dismissal of a second criminal threat count. Scott’s

counsel stipulated that the evidence presented at the preliminary hearing provided a

factual basis for his plea. 3 On April 1, 2022, the trial court revoked Scott’s probation. On May 16, 2022,

while further revocation proceedings remained pending, Scott (through counsel) filed a

motion to vacate judgment. On June 9, 2022, the trial court denied the motion. Scott

filed his petition challenging that ruling on July 1, 2022. In November 2022, we issued 4 an order to show cause and stayed further trial court proceedings.

2 The trial court suspended pronouncement of judgment, after cautioning Scott about the potential sentencing range, rather than deciding the length of sentence that would be appropriate and then suspending its execution. 3 Scott’s probation had been revoked once before, but was reinstated.

4 The stay was issued on our own initiative. Scott did not request a stay because the prosecution indicated “it would await Petitioner’s pursuit of review before taking further action.”

3 DISCUSSION

Scott contends that he is entitled to benefit from the changes to section 186.22

enacted by Assembly Bill 333, and that the “appropriate remedy” to allow him to do so is

to vacate his “entire plea.” We agree.

Section 186.22 enhances the punishment of a person convicted of an enumerated

felony committed “for the benefit of, at the direction of, or in association with a criminal

street gang, with the specific intent to promote, further, or assist in criminal conduct by

gang members.” (§ 186.22, subd. (b)(1)(4).) This gang enhancement relies on the

definition of “criminal street gang” as defined in section 186.22, subdivision (f).

Assembly Bill 333 narrowed the definition of “criminal street gang.” What was

previously defined as an “ongoing organization, association, or group of three or more

persons . . . whose members individually or collectively engage in, or have engaged in, a

pattern of criminal gang activity” (former § 186.22, subd. (f), italics added) is now

defined as 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), italics added.) Assembly Bill 333 also raised the bar for

proving the “pattern of criminal gang activity” needed to establish a criminal street gang,

as: (1) predicate offenses now must be proven to have “commonly benefitted a criminal

street gang, and the common benefit of the offense[s] is more than reputational”; (2) the

last predicate offense must have occurred within three years of the currently charged

offense; (3) the predicate offenses must have been committed by two or more “members”

4 of the gang, as opposed to any persons; (4) the currently charged offense no longer counts

as a predicate offense; and (5) the list of qualifying predicate offenses is shortened.

(Assem. Bill 333, § 3, revised § 186.22, subd. (e)(1)-(2).)

Assembly Bill 333 went into effect January 1, 2022. (People v. Lopez (2021) 73

Cal.App.5th 327, 343.) Its changes to section 186.22 “apply retroactively to all

cases . . . in which the judgment of conviction [was] not yet final” as of that date

“because the changes ‘redefine, to the benefit of defendants, conduct subject to criminal

sanctions’” (People v. E.H. (2022) 75 Cal.App.5th 467, 478; accord People v. Lopez,

supra, 73 Cal.App.5th at p. 344 [substantive changes in Assembly Bill 333 apply

retroactively because they “increase[] the threshold for conviction of the section 186.22

offense and the imposition of the enhancement”]; In re Estrada (1965) 63 Cal.2d 740,

745.)

The judgment against Scott is not yet final. Where, as here, imposition of

sentence is suspended and a defendant is placed on probation, the case is not final for

purposes of retroactivity because the defendant “may still timely obtain direct review of

an order revoking probation and causing the state prison sentence to take effect.” (People

v. Esquivel (2021) 11 Cal.5th 671, 673; accord People v. Lopez (2020) 57 Cal.App.5th

409, 414 [“A grant of probation is not a sentence and final judgment for purposes of

retroactivity: in a case where the court suspends imposition of sentence to place the

defendant on probation, there is no final judgment. And where the court imposes

sentence but suspends its execution, that sentence constitutes only a provisional or

5 conditional judgment, the finality of which depends on the outcome of the probationary

period”].) As such, Assembly Bill 333’s amendments to section 186.22 apply

retroactively to this case.

Where a defendant was convicted by a jury under the former version of the section

186.22 gang enhancement, the “proper remedy . . . is to remand and give the People an

opportunity to retry the affected charges.” (People v. E.H., supra, 75 Cal.App.5th at p.

480.) Here, analogously, the appropriate remedy is to grant Scott’s request to vacate his

conviction and the plea bargain on which the conviction was based and to allow the

parties to proceed with the case from that point under the amended law. (See People v.

Lopez, supra, 57 Cal.App.5th at pp. 412, 416 [ordering conviction based on plea bargain

vacated in light of amendment that “added an element the prosecution previously had no

reason to prove”; remanding for further proceedings “to allow the district attorney the

opportunity to prove” those elements]; People v. Stamps (2020) 9 Cal.5th 685, 707

(Stamps) [“If he desires, defendant should be given the opportunity to seek” benefit of

retroactive change in the law, though that could have “consequences to the plea

agreement”].)

The People propose that Scott’s motion was procedurally improper, arguing that it

should be “construed as a petition for writ of error coram nobis.” This argument lacks

merit. A petition for writ of error coram nobis seeks to vacate a final conviction based on

errors of fact. (See, e.g., People v. Kim (2009) 45 Cal.4th 1078, 1101-1102.) As

discussed above, Scott’s conviction is not final, and he does not seek to vacate his

6 conviction and the plea bargain that underlies it based on errors of fact, but on a

retroactive change in the law. For similar reasons, the People’s alternative proposal that

we treat Scott’s motion as a habeas petition is also without merit. (See People v. Duvall

(1995) 9 Cal.4th 464, 474 [“a writ of habeas corpus seeks to collaterally attack a

presumptively final criminal judgment”].) Rather, a motion to vacate was an appropriate

procedural mechanism for Scott to have sought relief. (See People v. Lopez, supra, 57

Cal.App.5th at pp. 416-417 [considering motion to vacate conviction based on retroactive

change in law].) The People have not presented any valid reason why either Scott’s 5 motion or the present petition should be considered procedurally barred or defective.

We are also unpersuaded by the People’s arguments going to the merits. The

People cite Doe v. Harris (2013) 57 Cal.4th 64, 66, 70 (Doe) for the proposition that a

defendant “is supposed to know that the Legislature may change the law defining an

enhancement later and this generally does not invalidate his plea.” This is a misreading

of Doe. Doe holds that a plea agreement “does not have the effect of insulating [the

parties] from changes in the law that the Legislature has intended to apply to them.”

(Doe, at p. 66.) That holding was later codified (§ 1016.8, subd. (a)(1)) with the

clarification that “[a] provision of a plea bargain that requires a defendant to generally

waive future benefits” of any “changes in the law that may retroactively apply after the

date of the plea is void as against public policy” (id., subd. (b)). (See Stamps, supra, 9

5 We note also that the People did not challenge Scott’s motion on procedural grounds in the trial court, so those arguments were also forfeited.

7 Cal.5th at p. 705 [discussing Doe and § 1016.8].) Given that Assembly Bill 333’s

changes to section 186.22 were (implicitly) intended by the Legislature to have

retroactive effect on cases not yet final, Doe only supports Scott’s motion. As the People

note, Scott’s “stipulation to a factual basis at the time of his plea essentially admitted the

sufficiency of the evidence against him.” But his admission to facts that supported the

enhancement under the former law was not—and, in light of section 1016.8, subdivision

(b), could not be—an admission that the facts support the enhancement in its current

form.

The People argue that the evidence supports an inference that the gang

enhancement “could have been proven” even under the higher bar of current law,

although the evidence actually presented at the preliminary hearing was lacking in some

respects. We decline to engage in substantial evidence review of a partially hypothetical

record. Moreover, regardless of the legal sufficiency of the evidence that could have

been mustered in support of the enhancement, the “new circumstances” of the law after

Assembly Bill 333 and recent appellate case law relating to the amended section 186.22

could “lead the parties to reevaluate what constitutes a fair disposition of the case.”

(Stamps, supra, 9 Cal.5th at p. 709.) After this opinion issues and the matter is returned

to the trial court, the parties may again reach a plea agreement, whether on similar or

different terms, or the case may proceed to trial. We will take up the sufficiency of the

evidence in support of the gang enhancement under current law if and when the question

is properly before us.

8 DISPOSITION

The petition for writ of mandate is granted. Let a peremptory writ of mandate

issue directing the respondent superior court to (1) vacate its order denying Scott’s

motion to vacate judgment and (2) enter a new order granting the motion. The stay we

ordered on November 2, 2022 shall be dissolved when our remittitur issues.

Scott shall prepare the writ of mandate and have it issued, copies served, and the

original filed with the clerk of this court, together with proofs of service on all parties.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL J.

We concur:

CODRINGTON Acting P. J.

FIELDS J.