P. v. Scott

Filed 12/23/20 P. v. Scott CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
BRYAN KEITH SCOTT,
Defendant and Appellant.
B300700
(Los Angeles County
Super. Ct. No. BA046808)
APPEAL from an order of the Superior Court of Los
Angeles County, John J. Lonergan, Jr., Judge. Affirmed.
David Y. Stanley, 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, Assistant
Attorney General, Charles S. Lee and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________

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A jury convicted defendant and appellant Bryan Keith
Scott of second degree murder in 1992, and we affirmed the
conviction in 1994. In 2019, after passage of Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill 1437), Scott filed a petition
for resentencing under Penal Code section 1170.951 and
requested the appointment of counsel. The trial court concluded
that Scott was ineligible for relief and summarily denied the
petition. For the reasons set forth below, we affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND2
A. Murder Conviction and Previous Appeal
According to the prosecution evidence, in 1991, 13-year-old
L.J. and 14-year-old T.J. went to a liquor store and met Scott and
codefendant Martin, whom they invited to their aunt D.D.’s
apartment. Eventually D.D. ordered Scott and Martin to leave.
That night, D.D. was awakened by Martin, who forced her to
have sexual intercourse and orally copulate him. In the
meantime, Scott pointed a gun at L.J. and T.J. The men then
switched places. Scott attempted to have sexual intercourse with
D.D., with partial penetration. He forced her to orally copulate
him, hitting her with a gun when she refused. Martin tried to
force his penis into T.J.’s mouth and vagina. He then forced L.J.
to orally copulate him.
The men tried to access a safe. When D.D. denied knowing
the combination, Martin threatened to blow her “ ‘fuckin’ brains
1 All further undesignated statutory references are to the
Penal Code.
2 We derive the facts from our unpublished opinion in Scott’s
direct appeal. (See People v. Martin and Scott (June 20, 1994,
B071417 [nonpub. opn.].)

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out.’ ” D.D. heard Scott say, “ ‘ “Just shoot the bitch.” ’ ” Martin
shot all three victims. L.J. died from her injuries, and D.D. was
paralyzed.
Scott testified on his own behalf. He claimed he did not
know Martin had a gun that night, and he fled the apartment in
fear after Martin began shooting. He denied telling Martin to
“ ‘ “shoot those bitches.” ’ ”
The indictment alleged that Scott and Martin willfully,
unlawfully, and with malice aforethought murdered L.J. It
further alleged, as a special circumstance under section 190.2,
subdivision (a)(17), that the murder was committed while
appellants were engaged in robbery, burglary, and rape.3
The jury was instructed on the degrees of murder (CALJIC
Nos. 8.70, 8.71 & 8.75), aiding and abetting (CALJIC No. 3.01),
multiple theories for first degree murder (CALJIC Nos. 8.20
[deliberate and premeditated murder], 8.21 [first degree felony
murder] & 8.27 [first degree felony murder—aider and abettor]),
and second degree murder based on malice (CALJIC Nos. 8.11
[malice aforethought] & 8.30 [unpremeditated murder of the
second degree]).
For L.J.’s death, the jury convicted Martin of first degree
murder with a rape-murder special circumstance finding, and it
convicted Scott of second degree murder (§ 187, subd. (a)). Scott
was also found guilty of two counts of attempted voluntary
manslaughter (§§ 192, subd. (a), 664) and two counts of forcible
rape while acting in concert (§ 264.1), with true findings on
3 On our own motion, we take judicial notice of the entire
record of Scott’s direct appeal, including the indictment, jury
instructions, verdict forms, and reporter’s transcript of
proceedings. (See Evid. Code, § 452, subd. (d).)

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firearm and great bodily injury allegations (§§ 12022.5, 12022.7).
He was sentenced to prison for 26 years, plus a consecutive term
of 15 years to life.
In a 1994 unpublished opinion, we affirmed the judgment.4
(See People v. Martin and Scott, supra, B071417.)
B. Section 1170.95 Petition for Resentencing
In January 2019, Scott filed a petition for resentencing
under section 1170.95. He declared that: (1) a complaint had
been filed against him under a theory of felony murder or murder
under the natural and probable consequences doctrine; (2) he was
convicted of first or second degree murder pursuant to one of
those theories; and (3) he could not now be convicted of first or
second degree murder because of changes to sections 188 and
189. Scott requested appointment of counsel.
The People filed a response in July 2019 challenging the
constitutionality of section 1170.955 and arguing, in the
alternative, that Scott was not entitled to relief because the jury
4 In our prior opinion, we explained that the jury convicted
Scott of second degree murder with a special circumstance
finding that the murder occurred during the commission of a
rape. However, as was true at the time of trial, a rape-murder
special circumstance applies only to first degree murder.
(§ 190.2, subd. (a)(17).) Confronted with an “inconsistent
verdict,” the trial court declined to re-instruct the jury on first
degree felony murder, as the prosecutor requested, and upheld
the second degree murder conviction. The special circumstance
finding does not appear in the abstract of judgment, and the trial
court did not rely on it in sentencing Scott.
5 Because the constitutionality of section 1170.95 is not at
issue on this appeal, we do not further address it.

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determined he acted with malice aforethought (§ 188, subd. (a));
(2) he was a direct aider and abettor who harbored an intent to
kill (§ 188, subds. (a)(1), (3)); or (3) he was a “major participant”
in the underlying rape who acted with “reckless indifference to
human life” (§ 189, subd (e)).
The People’s response attached the unpublished opinion in
Scott’s direct appeal, issued by this court in 1994, and the jury
instructions at trial. (See People v. Martin and Scott, supra,
B071417.)
C. Memorandum of Decision
In July 2019, the trial court summarily denied the petition
“[a]fter reviewing the petition for recall and sentencing, the
People’s response, the court file and the appellate decision,” on
the basis that Scott was not eligible for relief as a matter of law.
Scott was not present and the court did not appoint counsel for
him.
In its minute order, the court concluded that “[Scott] is not
the actual killer, but aided the killing” and “was a major
participant in the crime and acted with reckless indifference.”
The court noted that: Scott held L.J. and T.J. at gunpoint while
Martin raped D.D.; Scott tried to rape D.D. himself, hitting her in
the forehead with his gun; and the victims saw Scott hand the
gun to Martin and heard him say “ ‘[j]ust shoot the bitch’ ”
shortly before he fired the shots.
Scott appealed the ruling.
DISCUSSION
Scott contends the trial court erred by engaging in judicial
factfinding and summarily denying his section 1170.95 petition
without appointment of counsel or a hearing. We conclude the

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trial court committed harmless error and correctly determined
that Scott is ineligible for relief as a matter of law.
A. Scott Failed to Make a Prima Facie Showing of
Eligibility for Section 1170.95 Relief.
1. Senate Bill 1437
Senate Bill 1437 was enacted to “amend the felony murder
rule and the natural and probable consequences doctrine,[6] 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 No. 1437
achieves these goals by amending section 188 to require that a
principal act with express or implied malice and by amending
section 189 to state that a person can only be liable for felony
murder if (1) the ‘person was the actual killer’; (2) the person was
an aider or abettor in the commission of murder in the first
degree; or (3) the ‘person was a major participant in the
underlying felony and acted with reckless indifference to human
life.’ (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, §§ 2,
6 The natural and probable consequences doctrine provides
that “ ‘[a] person who knowingly aids and abets criminal conduct
is guilty of not only the intended crime [target offense] but also of
any other crime the perpetrator actually commits [nontarget
offense] that is a natural and probable consequence of the
intended crime. . . .’ [Citation.]” (People v. Medina (2009) 46
Cal.4th 913, 920.)

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3.)”7 (People v. Cornelius (2020) 44 Cal.App.5th 54, 57, review
granted Mar. 18, 2020, S260410 (Cornelius); People v. Verdugo
(2020) 44 Cal.App.5th 320, 326, review granted Mar. 18, 2020,
S260493 (Verdugo).)
Senate Bill 1437 also added section 1170.95, which permits
persons convicted of murder under a felony murder or natural
and probable consequences theory to petition in the sentencing
court for vacation of their conviction and resentencing. Section
1170.95 provides in pertinent part: “A person convicted of felony
murder or murder under a natural and probable consequences
theory” may file a petition “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 or murder under the natural and
probable consequences doctrine. [¶] (2) The petitioner was
convicted of first degree or second degree murder following a trial
or accepted a plea offer in lieu of a trial at which the petitioner
could be convicted for first degree or second degree murder. [¶]
(3) The petitioner could not be convicted of first or second degree
murder because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a).)
If any required information is missing and cannot “readily
[be] ascertained by the court, the court may deny the petition
without prejudice to the filing of another petition.” (§ 1170.95,
subd. (b)(2).) Subdivision (c) of the statute lists the next steps in
the petition process: “The court shall review the petition and
determine if the petitioner has made a prima facie showing that
7 Section 189, subdivision (e), does not apply if the victim is a
peace officer under specified circumstances. (§ 189, subd. (f).)

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the petitioner falls within the provisions of this section. If the
petitioner has requested counsel, the court shall appoint counsel
to represent the petitioner.[8] The prosecutor shall file and serve
a response within 60 days of service of the petition and the
petitioner may file and serve a reply within 30 days after the
prosecutor response is served. These deadlines shall be extended
for good cause. If the petitioner makes a prima facie showing
that he or she is entitled to relief, the court shall issue an order to
show cause.” (§ 1170.95, subd. (c).) Thus, section 1170.95
provides for two separate prima facie reviews, the first focused on
eligibility for relief and the second on entitlement to relief.
(People v. Drayton (2020) 47 Cal.App.5th 965, 975–976 (Drayton);
Verdugo, supra, 44 Cal.App.5th at pp. 327–330, rev. gr.)
During the “prebriefing ‘first prima facie review,’ . . . [t]he
court must determine, based upon its review of readily
8 The issue of when a petitioner is entitled to have counsel
appointed is currently under review by our Supreme Court. (See
Verdugo, supra, 44 Cal.App.5th 320, rev. gr.; People v. Lewis
(2020) 43 Cal.App.5th 1128, 1135, review granted Mar. 18, 2020,
S260598 (Lewis); Cornelius, supra, 44 Cal.App.5th 54, rev. gr.;
People v. Tarkington (2020) 49 Cal.App.5th 892, review granted
Aug. 12, 2020, S263219 (Tarkington).) Pending further guidance
from our Supreme Court, we agree with Verdugo, Cornelius,
Lewis, and Tarkington that counsel need not be appointed until
after a trial court concludes that the petitioner has made a prima
facie showing that he or she falls within the provisions of the
statute. (See Verdugo, at pp. 332–333; Lewis, at p. 1140;
Cornelius, at p. 58; Tarkington, at pp. 900–902.)

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ascertainable information in the record of conviction[9] and the
court file, whether the petitioner is statutorily eligible for relief
as a matter of law, i.e., whether he was convicted of first or
second degree murder based on a charging document that
permitted the prosecution to proceed under the natural and
probable consequences doctrine or a felony murder theory.
[Verdugo, supra, 44 Cal.App.5th at pp. 328–330, rev. gr.]”
(Tarkington, supra, 49 Cal.App.5th at pp. 897–898, rev. gr.) The
court may review the information or indictment, jury
instructions, verdict forms, abstract of judgment, a prior
appellate opinion, and any “other information” in the record of
conviction that establishes the petitioner is ineligible for relief as
a matter of law because he was convicted on a ground that
remains valid notwithstanding the amendments to sections 188
and 189. (Verdugo, at pp. 329–330, 333; Tarkington, at p. 909.)
During the postbriefing “second prima facie evaluation, the
court employs the familiar standard for issuance of an order to
show cause in a habeas corpus proceeding. That is, the court
must take petitioner’s factual allegations as true and make a
9 Our Supreme Court is currently considering whether
superior courts may consider the record of conviction in
determining whether a defendant has made a prima facie
showing of eligibility for relief under section 1170.95. (See
Lewis, supra, 43 Cal.App.5th 1128, rev. gr.) We agree with Lewis
that allowing the trial court to consider its file and record of
conviction is sound policy: “ ‘It would be a gross misuse of
judicial resources to require the issuance of an order to show
cause or even appointment of counsel based solely on the
allegations of the petition, which frequently are erroneous, when
even a cursory review of the court file would show as a matter of
law that the petitioner is not eligible for relief.’ ” (Id. at p. 1138.)

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preliminary assessment regarding whether he or she would be
entitled to relief if the factual allegations were proved.”
(Tarkington, supra, 49 Cal.App.5th at p. 898, rev. gr.; Verdugo,
supra, 44 Cal.App.5th at p. 328, rev. gr.; Drayton, supra, 47
Cal.App.5th at p. 980 [court cannot weigh evidence or make
credibility determinations, but need not credit factual assertions
that are untrue as a matter of law].)
After the court issues an order to show cause, “absent a
waiver and stipulation by the parties, the trial court must hold a
hearing ‘to determine whether to vacate the murder conviction
and to recall the sentence and resentence the petitioner on any
remaining counts in the same manner as if the petitioner had not
been previously . . . sentenced, provided that the new sentence, if
any, is not greater than the initial sentence.’ (§ 1170.95,
subd. (d)(1).) At that hearing, the prosecution has the burden to
prove beyond a reasonable doubt that the petitioner is ineligible
for resentencing. Both the prosecution and the petitioner may
rely on the record of conviction or may offer new or additional
evidence. (§ 1170.95, subd. (d)(3).)” (Tarkington, supra, 49
Cal.App.5th at pp. 898–899, rev. gr.)
2. Because Scott Was Ineligible for Relief as a
Matter of Law, the Trial Court’s Denial of the
Section 1170.95 Petition Was Correct.
Under section 1170.95, subdivision (c), the trial court was
required to review Scott’s petition and determine whether he
made a prima facie showing that he “falls within the provisions
of” the statute—that is, that he could not be convicted of second
degree murder under the law as amended by Senate Bill 1437.
(See § 1170.95, subds. (a)(3), (c).) We conclude that Scott failed to
make a prima facie showing of eligibility for relief because the

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jury instructions show he was not convicted of felony murder or
murder under a natural and probable consequences theory, so his
second degree murder conviction survives Senate Bill 1437’s
amendments to sections 188 and 189. (See § 1170.95, subd. (a);
People v. Soto (2020) 51 Cal.App.5th 1043, 1055, review granted
Sep. 23, 2020, S263939 (Soto) [trial court may rely on jury
instructions to make eligibility or entitlement determinations];
see also Tarkington, supra, 49 Cal.App.5th at p. 909, rev. gr.)
The record indicates that Scott was not convicted of felony
murder or murder under a natural and probable consequences
theory, as required by section 1170.95. (See § 1170.95, subd. (a).)
It is undisputed that the trial court did not instruct the jury on
the natural and probable consequences theory. (Soto, supra, 51
Cal.App.5th at p. 1055, rev. gr. [petitioner “could not have been
convicted of second degree murder under the natural and
probable consequences doctrine” where “the jurors were not
provided any instruction” on it].)
Although the jury was instructed on felony murder, the
instructions provided that a verdict under that theory would be
for first degree murder. Similarly, the instructions for aider and
abettor liability for felony murder provided that a person who
aided, promoted, encouraged, or instigated the commission of the
felony would be guilty of first degree murder. No instructions
were provided for second degree felony murder, which by
definition was not an applicable theory here.10 Thus, the jury’s
10 “Second degree felony murder is ‘an unlawful killing in the
course of the commission of a felony that is inherently dangerous
to human life but is not included among the felonies enumerated
in section 189.’ ” (People v. Solis (2020) 46 Cal.App.5th 762, 774.)

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second degree murder verdict demonstrated it did not rely on a
felony murder theory to convict Scott. (See People v. Edwards
(2020) 48 Cal.App.5th 666, 674 (Edwards) [where petitioner was
convicted of second degree murder, but information and jury
instructions showed he was not convicted under felony murder
rule or natural and probable consequences doctrine, summary
denial of petition was proper].) Rather, the jury was instructed
on, and based the conviction on, second degree murder based on a
theory of malice aforethought, which continues to be viable
following the changes to sections 188 and 189 implemented by
Senate Bill 1437. (See §§ 188, subd. (a), 189, subd. (b); accord,
People v. Beltran (2013) 56 Cal.4th 935, 942 [second degree
murder is the “ ‘unlawful killing of a human being with malice
aforethought,’ ” italics added].) Therefore, Scott’s murder
conviction remains valid under current sections 188 and 189, and
he is ineligible for relief under section 1170.95.
Because Scott was not convicted on a felony murder theory,
the trial court erred by denying the petition on the basis that he
was a major participant in the offense who acted with reckless
indifference to human life. Nonetheless, because Scott was
ineligible as a matter of law, the court’s error is of no moment,
and it properly denied the petition without appointing counsel.
(See People v. Duke (2020) 55 Cal.App.5th 113, 121–122
[although trial court erred by treating case as if it involved felony
murder, its ruling was correct because petitioner could still be
convicted under the law as amended by Senate Bill 1437]; People
v. Chism (2014) 58 Cal.4th 1266, 1295, fn. 12 [“ ‘we review the
ruling, not the court’s reasoning, and, if the ruling was correct on
The felony at issue, rape, is enumerated in section 189,
subdivision (a).

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any ground, we affirm’ ”]; Verdugo, supra, 44 Cal.App.5th at
pp. 332–333, rev. gr. [“If, as here, the court concludes the
petitioner has failed to make the initial prima facie showing
required by subdivision (c), counsel need not be appointed.”].)
Here, Scott would not have obtained a more favorable result even
if the trial court had not erred by treating the case as one
involving felony murder. In other words, neither additional
briefing nor additional evidence presented to the court following
the appointment of counsel would have changed the fact that
Scott is ineligible for section 1170.95 relief as a matter of law
because his conviction for second degree murder withstands the
amendments to sections 188 and 189. (See People v. Law (2020)
48 Cal.App.5th 811, 826, review granted July 8, 2020, S262490
[any error in denying section 1170.95 petition without
appointment of counsel was harmless because, “[g]iven the trial
evidence, counsel would not have been able to demonstrate in a
reply brief or otherwise” that petitioner was eligible for relief];
Edwards, supra, 48 Cal.App.5th at p. 675 [because the petitioner
“does not fall within the provisions of section 1170.95 as a matter
of law, any of the purported [procedural] errors were harmless
under any standard of review [citations] and remand would be an
idle act”].) Thus, although the trial court incorrectly proceeded as
if Scott’s conviction was for felony murder, it correctly denied his
petition for resentencing based on his ineligibility.
Scott also contends that, at an evidentiary hearing
pursuant to section 1170.95, subdivision (d)(3), he would have the
right to present new evidence that was not available at trial. But
because Scott is ineligible for relief as a matter of law, he is not
entitled to an evidentiary hearing. We conclude that Scott has
failed to make a prima facie showing that he falls within the

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provisions of section 1170.95, and accordingly, the trial court
properly denied his section 1170.95 petition.
DISPOSITION
The order denying Scott’s section 1170.95 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
EGERTON, J.
DHANIDINA, J.

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