People v. Scott CA3 ( 2023 )

Filed 1/27/23 P. v. Scott CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C096094
Plaintiff and Respondent, (Super. Ct. No. 80035)
v.
LAWRENCE SCOTT, JR.,
Defendant and Appellant.
In 1990, a jury found defendant Lawrence Scott, Jr., and his codefendant Shyrl
LaMar guilty of robbery, burglary, and the first degree murder of two victims, and found
true three special circumstance allegations. As to defendant individually, the jury also
found true allegations he personally used a dangerous and deadly weapon, a knife, in the
commission of each crime. The trial court sentenced defendant to life in prison without
the possibility of parole. In 2022, defendant filed a petition for resentencing under
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former Penal Code section 1170.95 (now section 1172.6).1 Before the prosecution filed a
response or defendant filed a reply, and without conducting a prima facie hearing, the
trial court denied the petition, concluding the record established defendant was the actual
killer, and therefore ineligible for resentencing as a matter of law.
Defendant asserts the trial court erred in denying his petition for resentencing.
Among other things, he asserts the trial court failed to satisfy statutory requirements for
full briefing and holding a prima facie hearing, that the court improperly engaged in
factfinding and weighing of evidence, and that at least one juror may have found him
guilty on a no longer valid theory of murder.
We affirm. The record establishes defendant’s jury found, beyond a reasonable
doubt, that he acted with the intent to kill. As such, he is ineligible for resentencing
under section 1172.6 as a matter of law.
BACKGROUND
In 1986, the two victims were robbed of $60 and stabbed to death as they lay in
bed in their apartment. (People v. Scott (Feb. 16, 1994, C010153, C010317) [nonpub.
opn.] (Scott).) According to LaMar’s 17-year-old daughter, who was the prosecution’s
primary witness, on the night of the killings, defendant and LaMar “discussed waiting for
the victims to go to sleep so they could take their money.” (Ibid.) Later, LaMar’s
daughter refused to go to the victims’ apartment with defendants “because she ‘thought
the people were going to die.’ ” (Ibid.) As the jury heard, LaMar’s daughter had testified
at the preliminary hearing that defendant “was the one who was going to kill the victims.
[He] said he was going to get what he was going to use and she heard him going through
the drawers in the kitchen.” (Ibid.)
1 Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6,
with no change in text (Stats. 2022, ch. 58, § 10). Undesignated statutory references are
to the Penal Code.
2
Another witness “saw [defendant] going into the victims’ apartment a little after
midnight with liquor and food.” (Scott, supra, C010153, C010317.) LaMar’s daughter
“awoke when the defendants returned about 2:30 a.m . . . . LaMar said, ‘He did it. He
did it. They’re gone.’ She was carrying a clear plastic bag with . . . a bloody butcher
knife wrapped in toilet paper, and another plastic bag with jewelry. . . . [Defendant] did
not deny or respond to any of these statements.” (Ibid.)
Both victims died of blood loss caused by multiple stab wounds. (Scott, supra,
C010153, C010317.) Stains on defendant’s clothing “revealed that the person wearing
his clothing was standing in close proximity to the victims while they were being
stabbed.” (Ibid.)
At trial, defendant testified that LaMar’s daughter’s boyfriend was the killer.
(Scott, supra, C010153, C010317.) The defense also “launched an unmitigated assault on
the credibility of” LaMar’s daughter. (Ibid.)
A jury found defendant and LaMar each guilty of robbery (§ 211), burglary
(§ 459), and two counts of first degree murder (§ 187, subd. (a)). (Scott, supra, C010153,
C010317.) The jury found true the special circumstance allegations that the murders
were committed while defendants were engaged in the commission of robbery (§ 190.2,
former subd. (a)(17)(i)) and while they were engaged in the commission of burglary (§
190.2, former subd. (a)(17)(vii)), and that they committed multiple murders (§ 190.2,
subd. (a)(3)). (Scott, supra, C010153, C010317.) The jury also found true allegations
that defendant personally used a dangerous and deadly weapon, a knife, in the
commission of each crime. (Ibid.) The trial court sentenced defendant to two terms of
life in prison without the possibility of parole on the murder counts. (Ibid.) This court
affirmed defendant’s and LaMar’s convictions. (Ibid.)
On March 30, 2022, defendant filed a form petition for resentencing. After
appointing counsel but before the prosecution filed a response or defendant filed a reply,
and without holding a prima facie hearing, the trial court denied the petition. The court
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determined that, by its verdicts, the jury determined defendant committed both murders
while engaged in robbery and burglary, and “that he is the actual killer because he
personally used a knife.”
DISCUSSION
Senate Bill No. 1437 and Petitions for Resentencing Generally
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) was enacted “to
amend the felony murder rule and the natural and probable consequences doctrine, as it
relates to murder, to ensure that murder liability is not imposed on a person who is not the
actual killer, did not act with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch.
1015, § 1, subd. (f).) Senate Bill 1437 achieved this by amending sections 188 and 189.
Following enactment of Senate Bill 1437, subdivision (a)(3) of section 188
provides: “Except as stated in subdivision (e) of Section 189 [addressing felony murder],
in order to be convicted of murder, a principal in a crime shall act with malice
aforethought. Malice shall not be imputed to a person based solely on his or her
participation in a crime.” Thus, following enactment of Senate Bill 1437, and where
felony murder is not at issue (see § 189, subd. (e)), a person must act with malice
aforethought to be convicted of murder (§ 188, subd. (a)(3); see People v. Vang (2022) 82
Cal.App.5th 64, 83; In re R.G. (2019) 35 Cal.App.5th 141, 144).
Relevant to felony murder, section 189, subdivision (e) now provides: “A
participant in the perpetration or attempted perpetration of a felony listed in subdivision
(a) [including robbery and burglary] in which a death occurs is liable for murder only if
one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The
person was not the actual killer, but, with the intent to kill, aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the actual killer in the commission
of murder in the first degree. [¶] (3) The person was a major participant in the
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underlying felony and acted with reckless indifference to human life, as described in
subdivision (d) of Section 190.2.”
Senate Bill 1437 also created a mechanism for individuals convicted of felony
murder or murder based on the natural and probable consequences doctrine to petition for
resentencing. Insofar as relevant here, section 1172.6 provides: “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 . . . may file a petition with the court that sentenced the petitioner
to have the petitioner’s murder . . . conviction vacated and to be resentenced on any
remaining counts when all of the following conditions apply: [¶] (1) A complaint,
information, or indictment was filed against the petitioner that allowed the prosecution to
proceed under a theory of felony murder, 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 . . . . [¶] (2) The petitioner was convicted
of murder . . . following a trial . . . . [¶] (3) The petitioner could not presently be
convicted of murder . . . because of changes to Section 188 or 189 made effective January
1, 2019.” (§ 1172.6, subd. (a).)
Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2) (Senate Bill
775), effective January 1, 2022, amended what is now section 1172.6. Insofar as relevant
here, Senate Bill 775 codified the holdings of People v. Lewis (2021) 11 Cal.5th 952(Lewis) “regarding petitioners’ right to counsel and the standard for determining the
existence of a prima facie case,” reaffirmed “that the proper burden of proof at a
resentencing hearing under this section is proof beyond a reasonable doubt,” and
addressed “what evidence a court may consider at a resentencing hearing.” (Stats. 2021,
ch. 551, § 1, subds. (b)-(d).)
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Adherence to Statutory Procedures
Defendant asserts, and the Attorney General agrees, the trial court failed to follow
the procedures required by section 1172.6, subdivision (c) by not allowing for full
briefing and failing to hold a prima facie hearing. We agree.
Section 1172.6, subdivision (c) provides, in part: “Within 60 days after service of
a petition that meets the requirements set forth in subdivision (b), the prosecutor shall file
and serve a response. The petitioner may file and serve a reply within 30 days after the
prosecutor’s response is served. . . . After the parties have had an opportunity to submit
briefings, the court shall hold a hearing to determine whether the petitioner has made a
prima facie case for relief.” The trial court failed to satisfy these requirements by
denying defendant’s petition without first allowing the parties to complete briefing and,
thereafter, holding a prima facie hearing.
Nevertheless, we may affirm the denial of the petition if defendant was not
prejudiced by these errors. (Lewis, supra, 11 Cal.5th at pp. 972-974.) Because we
determine, post, defendant was ineligible for relief as a matter of law, it is not reasonably
probable he would have obtained a more favorable result absent the errors in failing to
follow statutory procedures. (See People v. Watson (1956) 46 Cal.2d 818, 836; see also
Lewis, at pp. 973-975 [typically Watson harmless error test applies to state law statutory
error; determining Watson standard applies to error in failing to appoint counsel at prima
facie stage before summarily denying petition].)
Eligibility for Section 1172.6 Relief
Defendant asserts the trial court engaged in impermissible factfinding and
weighing of evidence at the prima facie stage. He asserts his murder convictions could
have been based on one or more jurors finding him guilty on a no longer valid felony-
murder theory or a theory of aiding and abetting under the now abrogated natural and
probable consequences doctrine.
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At the prima facie stage, “a petitioner’s allegations should be accepted as true, and
the court should not make credibility determinations or engage in ‘factfinding involving
the weighing of evidence or the exercise of discretion.’ ” (Lewis, supra, 11 Cal.5th at p.
974.) “Like the analogous prima facie inquiry in habeas corpus proceedings, ‘ “the court
takes petitioner’s factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his or her factual allegations
were proved.” ’ ” (Id. at p. 971.) “ ‘[A] court should not reject the petitioner’s factual
allegations on credibility grounds without first conducting an evidentiary hearing.’
[Citations.] ‘However, if the record, including the court’s own documents, “contain[s]
facts refuting the allegations made in the petition,” then “the court is justified in making a
credibility determination adverse to the petitioner.” ’ ” (Ibid.) To determine whether the
petitioner has made the requisite prima facie showing, the trial court may examine the
petitioner’s record of conviction. (Id. at pp. 970-971.) If the court determines in its
preliminary assessment that the petitioner would be entitled to relief if the petition’s
factual allegations were proved, the court must issue an order to show cause. (Id. at
p. 971.) However, if the record of conviction establishes the petition lacks merit as a
matter of law, the trial court may deny the petition without conducting further
proceedings. (See ibid. [the “record of conviction will necessarily inform the trial court’s
prima facie inquiry . . . , allowing the court to distinguish petitions with potential merit
from those that are clearly meritless”].)
Here, the jury instructions informed the jury that, to find defendant guilty of
murder, the jury had to find, among other things, the killings were committed with malice
aforethought or occurred during the commission or attempted commission of robbery
and/or burglary. Crucially, for the special circumstance allegations, the trial court
instructed the jury with CALJIC No. 8.80, in part: “The People have the burden of
proving the truth of a special circumstance. If you have a reasonable doubt as to whether
a special circumstance is true, you must find it to be not true. [¶] []If you find beyond a
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reasonable doubt that the defendant was either the actual killer or an aider or abetter,
then you must also find beyond a reasonable doubt that the defendant intended either to
kill a human being or to aid another in the killing of a human being in order to find the
special circumstance to be true. [¶] . . . [¶] You must decide separately each special
circumstance alleged in this case as to each of the defendants. . . . [¶] In order to find a
special circumstance alleged in this case to be true or untrue, you must agree
unanimously.” (Italics added.) Thus, based on this instruction, to arrive at their true
findings on the special circumstance allegations, the jury necessarily found, unanimously
and beyond a reasonable doubt, that, as the actual killer or as aider and abettor,
“defendant intended either to kill a human being or to aid another in the killing of a
human being”
Defendant asserts this instruction was ambiguous, emphasizing the discussion of
the italicized language in People v. Robinson (1990) 221 Cal.App.3d 1586. In Robinson,
the court noted the defendant’s contention that the second alternative in this portion of the
instruction—that the defendant intended “to aid another in the killing of a human
being”—allowed for a true finding without a finding that the defendant intended to kill.
(Id. at p. 1590.) Ultimately, the court found it unnecessary to decide whether the intent to
kill “is necessarily found in the words ‘aid another in the killing of a human being.’ ” (Id.
at p. 1591.)
We note, first, that it is important to retain the word “intended” in this formulation;
the language of the instruction requires, in the alternative to a finding that the defendant
intended to kill a human being, that the defendant “intended . . . to aid another in the
killing of a human being” Second, Robinson does not stand for the proposition that this
part of the instruction does not include the requirement that the defendant harbored the
intent to kill; the Robinson court found it unnecessary to decide the issue. (See People v.
Ault (2004) 33 Cal.4th 1250, 1268, fn. 10 [“cases are not authority for propositions not
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considered”].) Lastly, we fail to see how a defendant could have intended to aid another
in the killing of a human being without harboring the intent that a killing would result.
Furthermore, prior to the time of the killings here, in Carlos v. Superior Court
(1983) 35 Cal.3d 131, overruled in People v. Anderson (1987) 43 Cal.3d 1104, the
Supreme Court “ ‘held that intent to kill was an element of the felony-murder special
circumstance whether or not the defendant was the actual killer.’ ” (People v. Dickey
(2005) 35 Cal.4th 884, 901.)2 Consistent with Carlos, CALJIC No. 8.80 at the relevant
time required that, to find the felony-murder special circumstance to be true, the
defendant must have either intended to kill a human being or intended to aid another in
the killing of a human being. “As to offenses committed after Carlos but before
Anderson,” such as those at issue here, “due process and ex post facto principles demand
that the intent-to-kill requirement apply to any felony-murder special circumstance
charged in connection with such offenses.” (People v. Johnson (1993) 6 Cal.4th 1, 44,
disapproved on another ground in People v. Rogers (2006) 39 Cal.4th 826, 879.)
Thus, the law in effect at the time of the offenses, the jury instructions, and the
special circumstance true findings establish that the jury concluded, unanimously and
beyond a reasonable doubt, that defendant acted with the intent to kill. 3 Malice was not
imputed to him based solely on his participation in the underlying crimes.
2 In People v. Anderson, supra, 43 Cal.3d at pages 1138-1139, the Supreme Court
concluded that “the broad holding of Carlos that intent to kill is an element of the felony-
murder special circumstance cannot stand.”
3 For context, in our 1994 unpublished opinion, this court rejected LaMar’s contention
that the jury could have found, based on the same instructional language, that she did an
intentional act to help defendant kill the victims without finding she possessed the intent
to kill. (Scott, supra, C010153, C010317.) This court acknowledged Robinson but
concluded: “[W]e believe the instructions, when considered in their entirety, properly
informed the jurors an intent to kill was a necessary element of the two felony murder
special circumstances.” (Ibid.)
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Defendant asserts that, under People v. Strong (2022) 13 Cal.5th 698 (Strong), the
special circumstance true findings do not foreclose the possibility of him making a prima
facie showing on his petition. He emphasizes the holding from Strong: “We now
conclude . . . [felony-murder special-circumstance] [f]indings issued by a jury before
Banks and Clark do not preclude a defendant from making out a prima facie case for
relief under Senate Bill 1437.” (Id. at p. 710.) Strong does not apply here.
In 1990, “the voters approved Proposition 115, which made substantive changes in
felony-murder special-circumstances provisions, including amending subdivision (b) and
adding subdivisions (c) and (d) to section 190.2.” (People v. Cleveland (2004) 32 Cal.4th
704, 751.) “Before these amendments, for a felony-murder special circumstance to
apply, the defendant had to either be the actual killer or intend to kill.” (Id. at p. 752.)
Following approval of Proposition 115, however, “a person other than the actual killer is
subject to the death penalty or life without parole if that person was a major participant in
the underlying felony . . . and either intended to kill or acted with reckless indifference to
human life.” (Ibid., italics omitted.) Thus, after approval of Proposition 115, a
“defendant could be found guilty of the crime of murder, without any showing of ‘an
intent to kill, or even implied malice, but merely an intent to commit the underlying
felony.’ ” (Strong, supra, 13 Cal.5th at p. 704.) Later, in People v. Banks (2015) 61
Cal.4th 788, the Supreme Court clarified the meaning of “major participant,” and, in
People v. Clark (2016) 63 Cal.4th 522, the meaning of “reckless indifference.” (Strong,
at pp. 705-707.)
Here, however, defendant’s offenses occurred before approval of Proposition 115.
At that time, a jury could not have found true a felony-murder special circumstance based
on a determination that a defendant was a major participant in the underlying felony who
acted with reckless indifference to human life. At the time of defendant’s offenses,
“ ‘intent to kill was an element of the felony-murder special circumstance whether or not
the defendant was the actual killer.’ ” (People v. Dickey, supra, 35 Cal.4th at p. 901;
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accord, People v. Cleveland, supra, 32 Cal.4th at p. 752 [before Prop. 115, “for a felony-
murder special circumstance to apply, the defendant had to either be the actual killer or
intend to kill”].)
Strong addressed post-Proposition 115 offenses involving felony-murder special
circumstances premised on the theory that the defendant was a “major participant” who
acted “with reckless indifference to human life.” (Strong, supra, 13 Cal.5th at p. 703.)
Strong’s holdings were that “unless a defendant was tried after Banks was decided, a
major participant finding will not defeat an otherwise valid prima facie case,” and “unless
a defendant was tried after Clark was decided, a reckless indifference to human life
finding will not defeat an otherwise valid prima facie case.” (Id. at p. 721.) Strong is
relevant to offenses occurring after the approval of Proposition 115 and its creation of the
“major participant” who acted with “reckless indifference to human life” theory, and
before the subsequent guidance provided by Banks and Clark. (Strong, at pp. 703-707.)
Strong has no applicability to this case.
Senate Bill 1437 relief is unavailable if the defendant acted with the intent to kill.
(Strong, supra, 13 Cal.5th at p. 710; see §§ 189, subd. (e)(3), 1172.6, subd. (a).) Here, as
stated, the record establishes, as a matter of law, defendant acted with the intent to kill.
Because defendant could still be convicted of murder following Senate Bill 1437’s
changes to the felony-murder rule, he is ineligible for relief as a matter of law. (§§ 189,
subd. (e), 1172.6, subd. (a)(3).)
In light of our determination, we need not consider whether the personal use of a
dangerous or deadly weapon enhancement also rendered defendant ineligible for relief, or
whether the record established that defendant was the actual killer, as a matter of law.
Nor must we address whether, in making these determinations, the trial court improperly
engaged in factfinding or the weighing of evidence. “[W]e will affirm a judgment correct
on any legal basis, even if that basis was not invoked by the trial court. [Citation.] There
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can be no prejudicial error from erroneous logic or reasoning if the decision itself is
correct.” (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 269.)
DISPOSITION
The order denying defendant’s petition for resentencing is affirmed.
/s/
BOULWARE EURIE, J.
We concur:
/s/
MAURO, Acting P. J.
/s/
KRAUSE, J.
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