California Court of Appeal Aug 16, 2023 No. E074939Unpublished
Filed 8/16/23 P. v. Scott CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E074939
v. (Super.Ct.No. RIF103852)
DERRICK ANTHONY SCOTT, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge.
Affirmed.
Melcher & Melcher and William Paul Melcher, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Derrick Anthony Scott filed this appeal from the trial 1 court’s denial of his petition under former Penal Code section 1170.95, since
renumbered as section 1172.6, which sought resentencing on his 2006 attempted murder
1 Undesignated statutory citations are to the Penal Code.
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conviction. We dismissed the appeal as abandoned because Scott raised no issues, but it
has been transferred back to us by our Supreme Court for reconsideration in light of
People v. Delgadillo (2022) 14 Cal.5th 216, 232-233 & fn. 6 (Delgadillo) and Senate Bill
1172.6 applies to attempted murders only when based on the natural and probable
consequences doctrine].)
Thus, Scott’s jury was instructed that, to convict on attempted murder, it had to
find the direct perpetrator “harbored express malice aforethought, namely, a specific
intent to kill unlawfully another human being,” and that to aid and abet a crime, a person
must act “[w]ith knowledge of the unlawful purpose of the perpetrator” and “[w]ith the
intent or purpose of committing or encouraging or facilitating the commission of the
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crime.” (CALJIC Nos. 3.01 [aider and abettor liability], 8.66 [attempted murder].) It
follows that Scott’s conviction of attempted murder conclusively establishes that the jury
found he personally acted with express malice or intent to kill, and did not apply any
abrogated theory of vicarious liability. Scott is ineligible for relief under section 1172.6
even after S.B. 775.
DISPOSITION
We affirm the order denying Scott’s petition.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL J.
We concur:
MILLER Acting P. J.
MENETREZ J.
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AI Brief
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Holding. The court held that the defendant is ineligible for resentencing under Penal Code section 1172.6 because his attempted murder conviction required a finding of express malice, precluding reliance on an abrogated theory of vicarious liability.
Issues
Whether the defendant is entitled to relief under Penal Code section 1172.6 for an attempted murder conviction following the enactment of Senate Bill No. 775.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“Scott’s conviction of attempted murder conclusively establishes that the jury found he personally acted with express malice or intent to kill, and did not apply any abrogated theory of vicarious liability.”
“Scott is ineligible for relief under section 1172.6 even after S.B. 775.”