People v. Scott CA6

Filed 2/11/15 P. v. Scott CA6 Opinion following remand from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H037923 (Monterey County Plaintiff and Appellant, Super. Ct. No. SS080912)

v.

JAMES RUSSELL SCOTT,

Defendant and Respondent.

Having previously granted review, the California Supreme Court filed its decision in this case on May 19, 2014. (People v. Scott (2014) 58 Cal.4th 1415 (Scott).) The Supreme Court reversed our decision and remanded the matter to this court for further proceedings consistent with its opinion. FACTUAL AND PROCEDURAL BACKGROUND The relevant underlying facts are described in the Supreme Court’s opinion: “In May 2009, defendant [James Russell Scott] was charged with transportation or sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a); count 1), possession of cocaine base for sale (Health & Saf. Code, § 11351.5; count 2), possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a); count 3), misdemeanor possession of marijuana while driving (Veh. Code, former § 23222, subd. (b), as amended by Stats. 1998, ch. 384, § 2, p. 2897; count 4), and misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a); count 5). The information alleged that defendant had suffered a prior conviction for possession of a controlled substance,

cocaine base, within the meaning of Health and Safety Code section 11370.2, subdivision (a). “Pursuant to a plea bargain, defendant pleaded guilty to count 2 (possession of cocaine base for sale) and admitted the prior conviction on the condition that he be placed on felony probation with a suspended seven-year prison sentence. “In June 2009, the trial court imposed on defendant a seven-year state prison sentence, composed of a four-year middle term for defendant’s conviction of possessing cocaine base and a three-year term for the prior conviction enhancement. However, the trial court suspended execution of the seven-year sentence and placed defendant on formal probation for a period of three years. The remaining charges were dismissed pursuant to [Penal Code][1] section 1385. “Defendant’s probation was revoked and reinstated on two subsequent occasions. On October 4, 2011, a third petition to revoke probation was filed pursuant to section 1203.2. It alleged defendant had violated his probation by failing to complete a residential drug treatment program. On November 1, 2011, defendant admitted the violation and acknowledged that he faced a seven-year sentence. “On December 13, 2011, the trial court revoked defendant’s probation and lifted the suspension of the previously imposed sentence. The court continued the hearing, however, to allow briefing addressing whether defendant should serve the previously imposed but suspended seven-year term of incarceration in state prison or locally in county jail. After briefing and argument, the court ruled that defendant qualified for a local commitment because the court’s decision whether to reinstate defendant’s probation was ‘essentially a sentencing proceeding’ occurring after October 1, 2011, making the