Filed 12/23/20 P. v. Scott CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

B RYAN KEITH SCOTT,

Defendant and Appellant. B 300 700

(Los Angeles County Super. Ct. No. BA046808 )

APPEAL from an order of the Superior Court of Los Angeles County, John J. Loner g an , 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, a fter passage of Senate Bill No. 1437 (2017

– 2018 Reg. Sess.) (Senate Bill 1437), Scott filed a petition for resentencing under Penal Code section 1170.95 1 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 BACKGROUND 2

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 co pulate 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 ( Jun e 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 appell ants 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 No s . 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 No s . 8.11 [malice aforethought ] & 8.30 [unpremeditated murder of the second deg ree]).
For L.J .’s death, t he 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 con secutive term of 15 years to life.
In a 199 4 un published opinion , we affirmed the judgment

. 4 (See People v. Martin and Scott

, su pra , 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
convic ted 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 challen ging the constitutionality of section 1170.95 5 and argu ing

, in the
alternative

, that Scott was not entitled to relief because the jury

4 In our prior opinion, w e 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 u pheld 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 th is appeal, we do not further address it.5

determined he acted with malice aforethought ( § 188, subd. (a) ) ; (2) he was a direct aider and abett o r 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 t he unpublished opinion in
Scott’s direct appeal, issued by this court in 199 4
, 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 Scot t was not eligible for relief as a matter of law.
Scott was not presen t 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 : Sco tt hel d L.J. and T.J. at gunpoint while Martin raped D.D. ; Scott t ried 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 the6

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 n ot 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 i n 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 th e 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. Corne lius (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 agai nst 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 a ccepted 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 effe ctive January 1, 2019.” (§ 1170.95, subd. (a).)
I f 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).) Su bdivision (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 petitio ner 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

pro secutor 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 eligibil ity 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 de termine, 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, S263 219 ( 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 p p . 332

– 333; Lewis , at p. 1140; Cornelius , at p. 58 ; Tar kington , at p p

. 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

p robable consequences doctrine or a felony murder theory. [ Verdugo, supra , 44 Cal.App.5th at pp. 328

– 3 30, rev. gr

. ] ” ( Tarkington

, supra , 49 Cal.App.5th at pp. 897

– 898 , rev. gr .) The court may review the information or in dictment

, 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 notwithstandin g the amendments to sections 188 and 189. ( Verdugo, at p p

. 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 hol d 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 senten ce, 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 petitio ner 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 p p

. 898

– 899 , rev. gr .)

2

. Because Scott Was Ineligible f or Relief a s 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 provisi ons 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 b ecause the11

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 d eterminations];
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 und er 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. N o 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 ki lling 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 degr ee murder verdict demonstrate d it did not rely on a felony murder theory to convict Scott

. (See People v. E dwards (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 u nder current sections 188 and 189, and
he is i neligible 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 i n section 189, subd ivision (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 eviden ce 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 Ju l y 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” th at petitioner was eligible for relief];
Edwards

, supra , 48 Cal.App.5th at p. 675 [because the petitioner
“does not fall wit hin 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 e vidence 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 the14

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.