People v. Scott CA3

Filed 2/11/16 P. v. Scott CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C077132

Plaintiff and Respondent, (Super. Ct. No. 01F03583)

v.

ANDRE RENE SCOTT,

Defendant and Appellant.

This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.) FACTUAL AND PROCEDURAL BACKGROUND At around 6:00 a.m. on April 29, 2001, three men wearing ski masks entered a McDonald’s on Broadway in Sacramento. (People v. Scott (July 19, 2005, C044964) [nonpub. opn.] slip. opn. at pp. 3-4 (Scott).) Two of the men were armed, one with a handgun, and another with a rifle. (Ibid.) As they entered, someone said, “ ‘Get down.’ ” (Id. at p. 4.) Three employees were on duty; a fourth was eating breakfast and had not

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yet started work. (Id. at p. 3.) One of the robbers pointed a handgun at the swing shift manager, Serena Wong, and directed her to put her hands up and go to the safe. (Id. at pp. 3-4.) After Wong took a deposit bag with the McDonald’s logo containing $475 from the safe, the robber took it, left, came back for his firearm, and then left for good. (Id. at pp. 4-5.) Wong and another employee called 911 after the robbers left. (Id. at p. 5.) Defendant was later detained and a search of his apartment found, among other items, a deposit bag with the McDonald’s logo, two black ski masks, and a .380-caliber Lorcin pistol with red lettering on the side. (Id. at pp. 6-7.) Wong later identified the McDonald’s bag, the pistol, and other items found at defendant’s apartment, and was “ ‘almost positive’ ” that defendant was the robber who forced her to take the money from the safe. (Id. at p. 7.) A jury convicted defendant of three counts of robbery with personal use of a firearm enhancements (Pen. Code, §§ 211, 12022.53, subd. (b))1 and one count of felon in possession of a firearm (§ 12021). (Scott, supra, at p. 1.) The trial court sustained two strike allegations (§§ 667, subds. (b)-(i), 1170.12) and sentenced defendant to 116 years 8 months to life, consisting of consecutive 25-year-to-life terms on the four counts and 16 years 8 months consecutive for the firearm use enhancements. (Scott, at pp. 1-2.) On July 19, 2005, this court affirmed defendant’s conviction in an unpublished opinion. (Id. at p. 3.) Defendant filed a petition for resentencing pursuant to section 1170.126 on June 23, 2014. The trial court denied the petition, finding defendant’s convictions for robbery, a serious and violent felony, rendered him ineligible for resentencing. The court also noted that while felon in possession was not a serious or violent felony, the summary of evidence in our opinion affirming defendant’s conviction “contains language from