People v. Matthews CA1/1

Filed 12/15/23 P. v. Matthews CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A167035 v. SCOTT ANTHONY MATTHEWS, (Alameda County Super. Ct. No. 21-CR-007963) Defendant and Appellant.

Defendant Scott Anthony Matthews appeals from his sentence after pleading no contest to sexual assault and second degree robbery. Defendant contends the trial court erred in imposing consecutive sentences on both counts under Penal Code1 section 654. The Attorney General concedes the sentencing error and agrees a full resentencing is warranted. Because we agree with both parties that the matter must be remanded for a full resentencing, we need not reach defendant’s assertions that the court also erred in imposing an upper term sentence. We will also order the matter reassigned to a different judge on remand based on comments made by the trial court related to defendant’s race during sentencing.

1 All statutory references are to the Penal Code unless otherwise

indicated.

I. BACKGROUND We briefly summarize the facts as stated in the probation report. On June 30, 2021, at approximately 12:30 p.m., the victim was walking to the Oakland Coliseum Bay Area Rapid Transit (BART) station. While she was walking, the victim saw defendant. The victim did not know defendant. Defendant blocked her path of travel and said she could not pass unless she gave him her panties. When she refused and asked why he was doing this, defendant responded, “ ‘Because I’m a violent person.’ ” Defendant then lunged at her, grabbed her jacket with two hands, and took her to the ground where he prevented her from moving. The victim grabbed defendant’s hair with one hand and punched him with her other hand. Defendant choked the victim with one hand while reaching under her dress with the other hand. He pulled the back of the victim’s thong underwear, breaking the waistband, then removed the triangular front portion of her underwear. In the process, he digitally penetrated her labia but did not enter her vagina. The victim used her cell phone to take pictures of defendant. He was later arrested without incident and the victim positively identified him during a field show-up. An information filed on October 21, 2022 charged defendant with sexual penetration by a foreign object (§ 289, subd. (a)(1)(A)) and second degree robbery (§ 211). The information further alleged as an aggravating factor as to both counts that the crimes involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness. (Cal. Rules of Court, rule 4.421(a)(1).)