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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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.

_________________________
2

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.].) 
3

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).) 
4

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. 
5

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 
6

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.)
7

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).)
8

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.) 
9

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.)
10

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 
11

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.) 
12

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).
13

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 
14

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.