People v. Scott CA2/4 ( 2021 )

Filed 1/20/21 P. v. Scott CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B305711
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA433593
v.
KEVIN IBN SCOTT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Katherine Mader, Judge. Reversed and
remanded with directions.
Roberta Simon, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Attorney General, Steven D. Matthews and Analee J. Brodie,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In October 2019, we affirmed defendant and appellant
Kevin Ibn Scott’s convictions for murder, attempted premeditated
murder, shooting at an occupied vehicle, and possession of a
firearm by a felon, but remanded the case to allow the trial court
to exercise its discretion whether to strike the firearm
enhancements under Penal Code section 12022.53, subdivision
(h).1 On remand, the trial court held a hearing at which it chose
not to strike the firearm enhancements. On appeal, Scott argues
the trial court erred by denying his request to be present at the
hearing. The Attorney General agrees that the trial court erred in
this regard, and also notes the case must be remanded for a
separate reason: the trial court erred by holding the hearing prior
to issuance of the remittitur, at which point it lacked jurisdiction.
We agree with the parties. On remand, the court shall hold a
hearing to consider whether to exercise its discretion to strike the
firearm enhancements under section 12022.53, subdivision (h).
Scott shall have the right to assistance of counsel, and unless he
chooses to waive it, the right to be present.
BACKGROUND
A jury found Scott guilty of murder (§ 187, subd. (a); count
one), attempted premeditated murder (§§ 664/187, subd. (a);
count two), shooting at an occupied vehicle (§ 246; count three),
and possession of a firearm by a felon (§ 29800, subd. (a)(1); count
four). The jury also found true allegations that, during the
1 All undesignated statutory references are to the Penal
Code.
2
commission of counts one through three, Scott personally and
intentionally discharged a firearm, causing great bodily injury or
death. (§ 12022.53, subd. (d).) The trial court sentenced him to 75
years to life in state prison, plus an indeterminate life term with
a minimum eligible parole period of seven years. The sentence
consisted of 25 years to life for the murder, a consecutive term of
life with parole eligibility after seven years for the attempted
murder, and two consecutive terms of 25 years to life for two of
the firearm enhancements. Pursuant to section 654, the court
stayed sentencing for shooting at an occupied vehicle, possession
of a firearm by a felon, and the third firearm enhancement.
We affirmed Scott’s convictions, but remanded the case to
allow the trial court to exercise its discretion whether to strike
the firearm enhancements under section 12022.53, subdivision
(h). Trial counsel requested a continuance to allow Scott to be
personally present at the hearing. The trial court denied the
request, concluding Scott did not have the right to be present.
The court then denied Scott’s request to strike the firearm
enhancements.
Scott timely appealed.
DISCUSSION2
On appeal, Scott argues the case must be remanded
because the trial court erred by denying his request to be present
at his resentencing hearing. The Attorney General agrees the
trial court erred by denying Scott’s request to be present. The
2 We omit a recitation of the facts underlying Scott’s
convictions because they are irrelevant to the issues presented in
this appeal.
3
Attorney General also points out the case must be remanded for
an additional reason – the remittitur had not yet issued at the
time of the resentencing hearing, and consequently, the trial
court did not yet have jurisdiction over the matter when it held
that hearing. We agree with both points.
We start by addressing the jurisdictional issue. The trial
court held Scott’s resentencing hearing on December 20, 2019.
The remittitur did not issue until January 6, 2020, after the
Supreme Court denied Scott’s petition for review. The trial court
therefore did not have jurisdiction to hold Scott’s resentencing
hearing when it did. (People v. Perez (1979) 23 Cal.3d 545, 554
[“The filing of a valid notice of appeal vests jurisdiction of the
cause in the appellate court until determination of the appeal and
issuance of the remittitur. [Citations.]”) Because the trial court
acted without jurisdiction, we remand the case to the trial court
to hold a new resentencing hearing once the remittitur in this
appeal has issued.
We now turn to the issue of Scott’s right to be present at
the hearing. We agree with the parties that the trial court erred
by denying Scott’s request to be present at the initial
resentencing hearing. As Justice Collins recently explained, “it is
‘manifestly unfair’ to permit the trial court to decide how to
exercise its new discretion under section 12022.53(h) without
affording defendant and his counsel the opportunity to make an
argument if they so desire.” (People v. Rocha (2019) 32
Cal.App.5th 352, 359.) On remand, Scott shall be present at his
resentencing hearing assuming he does not waive this right.3
3 Scott argues the trial court’s error in denying his request to
be present at his resentencing hearing was structural error.
Alternatively, he argues the error was prejudicial under the
4
DISPOSITION
The order is reversed. The case is remanded with directions
to the trial court to decide, at a hearing at which Scott has the
right to be present with counsel, whether it will exercise its
discretion to strike the firearm enhancements under section
12022.53(h). If the court elects to strike any of the enhancements,
Scott shall be resentenced and the abstract of judgment
amended. If the court elects not to strike the enhancements,
Scott’s original sentence shall remain in effect.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
COLLINS, J.
standards articulated in Chapman v. California (1967) 386 U.S.
18 and People v. Watson (1956) 46 Cal.2d 818. The Attorney
General agrees the error was prejudicial. Because the trial court
held the initial resentencing hearing without jurisdiction, we
need not address whether the error in denying Scott’s request to
be present was prejudicial.
5