California Court of Appeal Mar 16, 2021 No. E072974Unpublished
Filed 3/16/21 P. v. Scott CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E072974
v. (Super.Ct.No. FWV07023)
BYRON LEROY SCOTT, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. Affirmed
Kimberly J. Grove, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Christopher P.
Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
1
In 1996, defendant Byron Scott was sentenced to two terms of life without
possibility of parole (LWOP) along with determinate terms, following verdicts in two
counts of first degree murder with special circumstances (Pen. Code,1 §§ 187, 190.2,
subds. (a)(3) & (17)), and one count each of residential burglary (§ 459), residential
dismissed as moot in light of Senate Bill No. 394, signed into law on October 11, 2017.
(People v. Padilla (2018) 234 Cal.Rptr.3d 75 [419 P.3d 535].)
9
A more recent case relied on the procedural history of Padilla as a sign that
findings of irreparable corruption and permanent incorrigibility are prerequisite to the
lawful imposition of an LWOP sentence in light of Miller. (See People v. Carter (2018)
26 Cal.App.5th 985, 999.)
In the present case, the resentencing court considered the Miller factors to
determine whether defendant was irreparably corrupt, and expressly found that “the
totality of those circumstances due2 [sic] indicate an irreparable corruption rather than
transient immaturity of youth.”
The mandate of Montgomery was duly satisfied by the court’s findings of
irreparable corruption after considering the circumstances of the crime as well as
defendant’s youth and immaturity, as required by Miller and Montgomery. The court was
well aware of the scope of its discretion and made the requisite findings. There was no
error.
2. The Amended Provisions of Section 3051 Render Defendant’s
Miller/Montgomery Constitutional Claims Moot.
In the trial court, all parties recognized that the amendments to section 3051,
subdivision (b)(4), render persons who were under the age of 18 at the time of the
controlling offense, who are sentenced to a term of LWOP, eligible for parole. On
appeal, defendant argues that the lack of express finding that he is irreparably corrupt
2 We assume this is a typographical error and that the court reporter mis- transcribed the word “do” by using its homonym, “due.” Otherwise, the sentence makes little sense.
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renders his resentencing invalid, as failing to conform with Miller, Graham and
Montgomery. As we explained in the previous section, the resentencing court did make
the requisite findings. But, as the People pointed out, the issue is moot in light of the
current provisions of section 3051 because defendant will automatically become eligible
for parole.
As relevant here, section 3051 provides in part: “A person who was convicted of a
controlling offense that was committed before the person had attained 18 years of age and
for which the sentence is life without the possibility of parole shall be eligible for release
on parole at a youth offender parole hearing during the person’s 25th year of
incarceration. The youth parole eligible date for a person eligible for a youth offender
parole hearing under this paragraph shall be the first day of the person’s 25th year of
incarceration.” (§ 3051, subd. (b)(4).)
Senate Bill No. 394, by which section 3051 was amended, rendered the
defendants’ constitutional claim under Miller moot. (Franklin, supra, 63 Cal.4th at pp.
279-280.) “‘By simply transforming the affected sentences to life with parole terms,
[section 3051] avoid[s] the Miller issues associated with the earlier sentences.’” (In re
Cook (2019) 7 Cal.5th 439, 449, quoting In re Kirchner (2017) 2 Cal.5th 1040, 1054.)
“By affording those individuals a meaningful opportunity for release, the Legislature has
effectively mooted any claim that imposition of life without parole on a juvenile offender
violates the Eighth Amendment.” (People v. Ochoa (2020) 53 Cal.App.5th 841, 850,
citing Franklin, supra, 63 Cal.4th at pp. 279–280.)
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We concur with these holdings and hold that to the extent defendant asserts the
reimposition of two LWOP sentences violates the Eighth Amendment pursuant to Miller,
that claim is moot. However, the abuse of discretion claim is not rendered moot by the
statutory amendment.
3. The Trial Court Did Not Abuse Its Discretion in Reimposing LWOP Terms
After Duly Considering Defendant’s Youth and Other Miller Criteria.
Defendant argues the reimposition of LWOP sentences constituted an abuse of
discretion in the absence of certain findings, and because the court did not appreciate the
scope of its discretion as requiring such findings. We disagree.
Section 190.5 governs the imposition of judgement regarding persons under the
age of 18. Subdivision (b) provides that “[t]he penalty for a defendant found guilty of
murder in the first degree, in any case in which one or more special circumstances
enumerated in Section 190.2 or 190.25 has been found to be true under Section 190.4,
who was 16 years of age or older and under the age of 18 years at the time of the
commission of the crime, shall be confinement in the state prison for life without the
possibility of parole or, at the discretion of the court, 25 years to life.”
Section 190.5, subdivision (b), does not establish a presumption in favor of life
without parole. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1371.) Thus, on its face,
the statute authorizing LWOP for juveniles does not violate the prohibition of Miller and
Montgomery against mandatory LWOP terms and section 190.5, subdivision (b), because
“properly construed, [it] confers discretion on a trial court to sentence a 16- or 17-year-
12
old juvenile convicted of special circumstance murder to life without parole or to 25
years to life, with no presumption in favor of life without parole. (Gutierrez, supra, 58
Cal.4th at p. 1360.) What remains is a claim of abuse of discretion.
Defendant’s main challenge to the exercise of the sentencing court’s decision to
reimpose the LWOP terms is the argument that the court failed to find defendant was
irreparably corrupt nor made a determination of permanent incorrigibility. However, as
pointed out above, this is inaccurate. The resentencing court made an express finding
“that the totality of those circumstances [do] [3] indicate an irreparable corruption rather
than transient immaturity of youth.” Defendant also argues that a court must make
another required finding: that before imposing LWOP sentences on a juvenile, a court
must also find the defendant to be among the “rarest of juvenile[s].” We disagree.
We agree with defendant’s concern that courts should only impose LWOP terms
on “the rarest of juvenile offenders.” However, neither Miller nor Montgomery require
that a court expressly make such a finding; instead, we interpret those cases as requiring
findings of irreparable corruption and/or permanent incorrigibility so as to ensure that
only the “rarest of juveniles” receive an LWOP term. A court can make a determination
of the corruption and incorrigibility factors after reviewing the facts of the offense, and
the evidence presented in aggravation or mitigation. But it would be impracticable to
require trial courts to make the additional finding suggested by defendant because it
3 Again, although the reporter’s transcript states that “the totality of the circumstance due indicate irreparable corruption,” we assume the court actually said “do” and that it was mis-transcribed.
13
would require an ongoing mathematical computation, in real time, of the percentage of
juveniles who have been convicted of first degree murder with special circumstances who
were sentenced to LWOP.
Additionally, there is no guidance from the Supreme Court as to what “rarest”
means, what percentage of juvenile murderers with special circumstances findings falls
within or exceeds “rarest,” or how a sentencing court should determine the relative rarity
of the occurrence of LWOP terms for juveniles. Findings of irreparable corruption or
permanent incorrigibility will necessarily limit imposition of LWOP sentences to only
those rare juvenile offenders.
We now turn to the question of whether the court abused its discretion in selecting
LWOP as the punishment for defendant’s crimes, after considering all the factors
surrounding the offense and the offender. In reviewing a court’s exercise of discretion in
sentencing, we are guided by well-established principles: A court’s exercise of discretion
will not be disturbed on appeal absent a showing that the court acted in an arbitrary,
capricious, or patently absurd way, resulting in a manifest miscarriage of justice. (People
v. Jordan (1986) 42 Cal.3d 308, 316.) We are guided by two fundamental precepts.
First, ‘““[t]he burden is on the party attacking the sentence to clearly show that the
sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a
showing, the trial court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a particular sentence will not be
set aside on review.”’ [Citation.] Second, a ‘“decision will not be reversed merely
14
because reasonable people might disagree. ‘An appellate tribunal is neither authorized
nor warranted in substituting its judgment for the judgment of the trial judge.’”’” (People
v. Blackwell (2016) 3 Cal.App.5th 166, 199-200, quoting People v. Carmony (2004) 33
Cal.4th 367, 376–377.)
There is no longer a presumption favoring imposition of an LWOP term, and no
particular factor, relevant to the decision whether to impose LWOP on a juvenile who has
committed murder, predominates under the law. (Blackwell, supra, 3 Cal.App.5th at p.
200.) So long “as a trial court gives due consideration to an offender’s youth and
attendant characteristics, as required by Miller[, supra,] it may, in exercising its
discretion under . . . section 190.5, subdivision (b), give such weight to the relevant
factors as it reasonably determines is appropriate under all the circumstances of the case.”
(People v. Palafox (2014) 231 Cal.App.4th 68, 73.)
Here, the trial court carefully catalogued a myriad of factors in aggravation and
mitigation, including the extreme cruelty involved in the double murder, which included
lying in wait for several hours after killing the daughter before attacking the mother when
she entered the daughter’s room to check on her. The court recounted how defendant had
premeditated the crime, discussing his plan in advance of the event, and then carrying out
that plan. The court also considered defendant’s age, his social history and his conduct in
prison during the intervening years as mitigation, along with the Miller factors regarding
defendant’s youth and immaturity.
15
Nevertheless, in weighing the aggravating factors against the mitigating factors,
including the Miller youth factors, the court concluded that the totality of those
circumstances did indicate an irreparable corruption rather than transient immaturity of
youth, going on to say, “And after weighing all of the circumstances, the court finds that
the appropriate penalty remains to be life in prison without the possibility of parole.”
On this record, we find no abuse of discretion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.