People v. Scott CA4/3

Filed 4/15/25 P. v. Scott CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G063782

v. (Super. Ct. No. 18WF0995)

DEREK JAMMAL SCOTT, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Jonathan S. Fish, Judge. Reversed and remanded. Heather E. Shallenberger, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Derek Jammal Scott appeals an order denying his 1 petition for resentencing under Penal Code section 1172.75. Pursuant to that section, resentencing generally is required when the defendant is serving a sentence for a judgment that includes a prior prison term enhancement under section 667.5, subdivision (b) (section 667.5(b)). Although Scott’s judgment includes two such enhancements, the trial court determined he was ineligible for resentencing because their punishment was stricken at the time of sentencing. Scott contends that ruling was erroneous, and we agree. Following the Sixth District’s recent opinion in People v. Espino (2024) 104 Cal.App.5th 188 (Espino), review granted October 23, 2024, S286987, and pending review of that issue by the California Supreme Court, we reverse the court’s order and remand for resentencing. PROCEDURAL BACKGROUND In 2018, Scott pleaded guilty to attempted burglary and falsely identifying himself to a police officer, in exchange for an 11 year prison sentence. As part of his plea, Scott admitted having suffered two prior prison terms, which were based on burglaries he had committed in earlier cases. But the trial court struck the punishment for those prison priors. They are listed in the abstract of judgment with a “PS” next to them, indicating they were charged and found true, but the punishment imposed for them was stricken. Effective January 1, 2020, the Legislature limited the applicability of section 667.5(b) to prior prison terms that were served for sexually violent offenses. (Stats. 2019, ch. 590, § 1.) In light of that development, Scott petitioned the trial court to recall his sentence and resentence him pursuant to section 1172.75. But because Scott’s punishment