People v. Scott CA3

Filed 9/25/24 P. v. Scott CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C099391

Plaintiff and Respondent, (Super. Ct. No. 14F05089)

v.

TERRY SCOTT,

Defendant and Appellant.

Defendant Terry Scott appeals from the trial court’s denial of his petition for resentencing under Penal Code section 1172.6. (Statutory section citations that follow are found in the Penal Code unless otherwise stated.) Defendant petitioned for resentencing under former section 1170.95. Effective June 30, 2022, the Legislature renumbered former section 1170.95 as section 1172.6 without substantive changes. (Stats. 2022, ch. 58, § 10.) We refer to the current section throughout this opinion.

1

After issuing an order to show cause, the trial court denied the petition concluding section 1172.6 violated the People’s state constitutional right to a jury trial. On appeal, defendant contends the trial court erred, as a resentencing hearing is not a criminal trial for purposes of the state constitutional right to a jury trial. The People concede the issue. We accept the People’s concession, reverse the order, and remand the matter for a hearing under section 1172.6, subdivision (d).

FACTS AND HISTORY OF THE PROCEEDINGS The facts underlying defendant’s conviction are not relevant to the issue on appeal and are therefore not set forth. In May 2016, a jury found defendant and his codefendant guilty of second degree murder (§ 187, subd. (a)) and assault of a child under the age eight, causing death (§ 273ab). The trial court sentenced defendant to a term of 25 years to life for assault on a child causing death and imposed and stayed a sentence of 15 years to life on the murder conviction. On July 12, 2019, defendant filed a petition for resentencing under section 1172.6. The trial court found defendant made a prima facie showing, issued an order to show cause, set the matter for hearing and appointed counsel. The People filed a resentencing brief arguing, among other things, that section 1172.6 violated the People’s right to a jury trial under the California Constitution. Defendant responded that a section 1172.6 hearing is a special proceeding to which a jury trial right does not attach. The trial court denied the petition, finding “section 1172.6 is unconstitutional by depriving the People of their right to a jury determination of the facts at what is for all intents and purposes a criminal trial.”