People v. Rembert CA4/3

Filed 3/2/22 P. v. Rembert 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G059690

v. (Super. Ct. No. C-94692)

SCOTT EARL REMBERT, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Gary S. Paer, Judge. Reversed and remanded for further proceedings. Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General for Plaintiff and Respondent. * * *

Scott Earl Rembert appeals from the trial court’s postjudgment order denying his petition for resentencing pursuant to Penal Code section 1170.95. The court concluded a person convicted of murder with a special circumstance before the Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks), and People v. Clark (2016) 63 Cal.4th 522 (Clark), is barred from pursuing resentencing. We disagree. Because the record of conviction does not establish Rembert’s ineligibility for resentencing as a matter of law, we reverse the postjudgment order denying the petition and remand the matter with directions to issue an order to show cause (OSC) and to proceed in accordance with Penal Code section 1170.95, subdivision (d). I FACTUAL AND PROCEDURAL BACKGROUND A. Underlying Crime In 1995, a jury found Rembert guilty of first degree murder and found true special circumstances allegations that the murder occurred during the commission or attempted commission of robbery and kidnapping (Pen. Code, §§ 187, 190.2, subds. (a)(17(i) & (ii); all further statutory references are to the Penal Code, unless otherwise stated). We affirmed the conviction in an unpublished opinion. (People v. Rembert (May 28, 1997, G018055) [nonpub. opn.] (Rembert I).) As recounted in our prior opinion, Rembert and two codefendants, Shaun Burney and Allen Burnett, robbed and kidnapped the victim. “The three discussed what they should do with [the victim]. Burney expressed a fear that the victim had seen their faces and would tell the police. Burnett wanted only to leave him in some remote area, like Carbon Canyon. Burney demanded that they kill him, which Burnett refused to do. Burney ended the discussion by announcing he would do it. Lifting the trunk lid, he aimed Rembert’s gun at [the victim]’s head and fired a single shot at point blank range. It pierced [the victim]’s upraised hand before entering his skull, causing massive blood loss and his death. The three fled on foot.” (Rembert I, supra, at pp. 3-4.)