Filed 5/26/15 P. v. Scott CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065830
Plaintiff and Respondent,
v. (Super. Ct. No. SCD137581)
LIONEL A. SCOTT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed with directions.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C.
Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Lionel A. Scott, who is serving an indeterminate term of 75 years to life, contends
the trial court erroneously denied his petition to recall his sentence under the Three
Strikes Reform Act of 2012 (Reform Act) (Pen. Code, § 1170.126).1 Scott contends he
is eligible for resentencing for two of his six current felony offenses—two counts of oral
copulation by an adult with a minor under 16 years of age (§ 288a, subd.
(b)(2))because he asserts these are "non-serious non-violent felonies." Scott asks us to
determine if an inmate is eligible to be resentenced for offenses that are not serious or
violent felonies even though he concedes the other felony offenses for which he is
currently serving an indeterminate life term—forcible rape (§ 261, subd. (a)(2)), forcible
oral copulation (§ 288a, subd. (c)(2)), and unlawful sexual intercourse with a minor under
the age of 16 (§ 261.5, subd. (d))—are not eligible for resentencing. The Supreme Court
is currently considering this issue in Braziel v. Superior Court, review granted July 30,
2014, S218503, and People v. Machado, review granted July 30, 2014, S219819.
We need not enter into this fray because the two offenses for which Scott seeks
resentencing are disqualifying sex offenses under section 1170.126, subdivision (e)(2).
Because Scott is ineligible for resentencing, we affirm the order denying his petition to
recall his sentence. However, we direct the trial court to amend the abstract of judgment
to correct certain clerical errors.
1 All statutory references are to the Penal Code unless otherwise indicated.
2
BACKGROUND
Scott, then 40 years old, along with his brother, met two 14-year-old girls at a mall
and exchanged telephone numbers. The following day, Scott's brother called one of the
girls and arranged to meet them. (People v. Scott (2000) 83 Cal.App.4th 784, 789.) The
men took the girls to their apartment where Scott raped one of the girls and made her
orally copulate him. (Id. at p. 790.)
Two separate juries convicted Scott in 1999 of unlawful sexual intercourse with a
minor (§ 261.5, subd. (d)), two counts of oral copulation on a minor (§ 288a, subd.
(b)(2)), one count of forcible rape (§ 261, subd. (a)(2)), and two counts of forcible oral
copulation (§ 288a, subd. (c)(2)). The court found true allegations Scott suffered two
prior strike convictions. The court sentenced him to a total prison term of 75 years to life
consisting of a sentence of 25 years to life for the forcible rape count and consecutive
sentences of 25 years to life for the two forcible oral copulation counts. The court
imposed sentences of 25 years to life for each of the remaining three counts, but stayed
the sentences pursuant to section 654. We affirmed the judgments in a partially
published opinion. (People v. Scott (2000) 83 Cal.App.4th 784.)
In 2014, Scott petitioned to recall his sentence pursuant to section 1170.126. The
trial court denied the petition concluding the three forcible sex crimes—the rape count
and the two counts of forcible oral copulation of a minor—are sexually violent offenses
as defined in Welfare and Institutions Code section 6600, subdivision (b), which render
3
him ineligible for resentencing under section 1170.126.2 Scott timely appealed. (Teal v.
Superior Court (2014) 60 Cal.4th 595, 601 [an order denying a petition to recall a
sentence pursuant to section 1170.126 is an appealable order].)
DISCUSSION
I
We are asked to determine eligibility for resentencing based upon statutory
interpretation. Because this is a question of law, we review the issue de novo. (People v.
Martinez (2014) 226 Cal.App.4th 1169, 1181.)
Under the original version of the three strikes law, a recidivist offender with two
or more prior strikes is subject to an indeterminate life sentence if he or she is convicted
of a new felony. The Reform Act "diluted the three strikes law by reserving the life
sentence for cases where the current crime is a serious or violent felony or the
prosecution has pled and proved an enumerated disqualifying factor. In all other cases,
the recidivist will be sentenced as a second strike offender. (§§ 667, 1170.12.) The
[Reform] Act also created a postconviction release proceeding whereby a prisoner who is
serving an indeterminate life sentence imposed pursuant to the three strikes law for a
crime that is not a serious or violent felony and who is not disqualified, may have his or
her sentence recalled and be sentenced as a second strike offender unless the court
2 The trial court cited section 1170.126, subdivision (e)(3), which refers to
disqualifying "prior convictions," such as sexually violent offenses. Section 170.126,
subdivision (e)(1), also makes an inmate ineligible if he "is serving" an indeterminate
term of life imprisonment for a conviction of serious and/or violent felony or felonies as
defined by section 667.5, subdivision (c), or section 1192.7, subdivision (c).
4
determines that resentencing would pose an unreasonable risk of danger to public safety.
(§ 1170.126.)" (People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168.)
Eligibility for resentencing is governed by section 1170.126, subdivision (e),
which makes an inmate eligible if (1) the inmate is serving a third strike life term for a
felony that is not serious or violent; (2) the inmate's current sentence has no specified
disqualifying offenses, such as certain sex offenses, drug charges, use of firearms or great
bodily injury; and (3) prior offenses do not include specified crimes such as certain sex
offenses, homicide crimes, certain assaults on peace officers, or felonies punishable by
life imprisonment or death.3
We need not decide whether or not Scott is eligible under the first criteria for
resentencing as to two of his six current convictions (four of which he admits render him
ineligible), because we conclude the two offenses for which he seeks resentencing are
3 Section 1170.126, subdivision (e) reads as follows: "An inmate is eligible for
resentencing if:
"(1) The inmate is serving an indeterminate term of life imprisonment imposed
pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of Section
1170.12 for a conviction of a felony or felonies that are not defined as serious and/or
violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.
"(2) The inmate's current sentence was not imposed for any of the offenses
appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of
paragraph (2) of subdivision (c) of Section 1170.12.
"(3) The inmate has no prior convictions for any of the offenses appearing in
clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or
clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12."
5
disqualifying offenses under the second criteria.4 "[T]he second resentencing eligibility
criterion set forth in [section] 1170.126[, subdivision] (e)(2) is not satisfied—and the
petitioning prisoner is ineligible for resentencing relief under the Reform Act—if the
prisoner's life sentence was imposed for any of the disqualifying offenses . . . appearing
in sections 667[, subdivision] (e)(2)(C)(i)–(iii) and 1170.12[, subdivision] (c)(2)(C)(i)–
(iii)." (People v. White (2014) 223 Cal.App.4th 512, 523.)
Among the disqualifying offenses are specified felony sex offenses and, with
exceptions not applicable here, "any felony offense[s] that result[] in mandatory
registration as a sex offender" under section 290, subdivision (c). (§§ 667, subd.
(e)(2)(C)(ii), 1170.12, subd. (c)(2)(C)(ii).)5 Section 290, subdivision (c), states a
conviction for oral copulation of a minor under the age of 16 by a person over 21 years of
age in violation of section 288a, subdivision (b)(2), requires mandatory registration as a
sex offender. (§ 290, subd. (c).)
4 We assume, without deciding, for purposes of this decision a court may consider
the eligibility of an offense under section 1170.126 even if the sentence for that offense is
stayed under section 654. We note the Supreme Court has granted review in two of the
cases cited by Scott on this point (People v. Soto, review granted Oct. 15, 2014, S220856,
and People v. Atkins, review granted Nov. 12, 2014, S221786), but has deferred briefing
pending its decision in Braziel v. Superior Court, S218503 and People v. Machado,
S219819.
5 Scott concedes his conviction for unlawful sexual intercourse with a minor
(§ 261.5, subd. (d)), is a disqualifying offense appearing in sections 667, subdivision
(e)(2)(C)(ii), and 1170.12, subdivision (c)(2)(C)(ii).
6
Scott contends he is eligible for resentencing because, at the time he filed his
petition to recall his sentence in 2014, registration as a sex offender was not mandatory
for section 288a, subdivision (b)(2) convictions. We are not persuaded.
In People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), the Supreme Court
held section 290's mandatory registration requirement for a violation of section 288a,
subdivision (b)(1) (oral copulation with a 16 or 17 year old minor), violated state and
federal equal protection clauses because the statute does not require mandatory
registration for a violation of section 261.5 for unlawful intercourse with a minor.
(Hofsheier, supra, at p. 1207.) Although the Supreme Court limited its holding to
convictions under section 288a, subdivision (b)(1) (Hofsheir, at p. 1198), some Courts of
Appeal applied the equal protection analysis to convictions under section 288a,
subdivision (b)(2) (oral copulation with a minor under 16 years of age). (People v.
Luansing (2009) 176 Cal.App.4th 676, 685; People v. Hernandez (2008) 166 Cal.App.4th
641, 648-651; People v. Garcia (2008) 161 Cal.App.4th 475, 481-482.) One Court of
Appeal opinion distinguished Hofsheier and declined to extend the equal protection
analysis to convictions under section 288a, subdivision (b)(2). (People v. Manchel
(2008) 163 Cal.App.4th 1108, 1111, 1115.)
Earlier this year, in Johnson v. Department of Justice (2015) 60 Cal.4th 871
(Johnson), the Supreme Court revisited and overruled Hofsheier, supra, 37 Cal.4th 1185
concluding its equal protection analysis was faulty because there is a rational basis for the
Legislature's differentiated treatment of section 261.5 and section 288a offenders.
(Johnson, supra, at pp. 874-875, 887-888.) "Actual and plausible legislative concerns
7
regarding recidivism, teen pregnancy, and the support of children conceived as a result of
intercourse provide a rational basis for the difference in registration consequences as
between those convicted of unlawful intercourse and those convicted of nonforcible oral
copulation." (Id. at p. 889.) The Supreme Court disapproved those Court of Appeal
decisions extending Hofsheier's rationale "to other sex offenses involving minors and
others," including those extending the analysis to convictions under section 288a,
subdivision (b)(2). (Johnson, at p. 888, disapproving People v. Luansing, supra, 176
Cal.App.4th at p. 685; People v. Hernandez, supra, 166 Cal.App.4th at pp. 648-651; and
People v. Garcia, supra, 161 Cal.App.4th at pp. 481-482.)
The Johnson court acknowledged a "decision of a court overruling a prior decision
is typically given full retroactive effect" unless an appellate court decides it is appropriate
to restrict retroactive application of an overruling decision "on grounds of equity and
public policy." (Johnson, supra, 60 Cal.4th at p. 888.) Although the Johnson court did
not decide whether its decision overruling Hofsheier, supra, 37 Cal.4th 1185 should be
given retroactive effect in all cases, the court determined there was "no reason to deny
retroactive application where, as here, a sex offender has taken no action in justifiable
reliance on the overruled decision." (Johnson, at p. 889.)
Similarly here, Johnson, supra, 60 Cal.4th 871 should apply retroactively and
precludes Scott's argument he is eligible for resentencing based on these convictions.
When a jury convicted Scott in 1999 of two violations of section 288a, subdivision (b)(2),
registration as a sex offender was mandatory under former section 290, subdivision
(a)(2). (Stats. 1998 ch. 485, § 128, p. 3440.) He has since been serving his sentence of
8
75 years to life for the offenses he admits are not eligible for resentencing. If he is ever
released, he will be required to register as a sex offender for the section 288a, subdivision
(b)(2) violations. (§ 290.003.) The fact Scott filed his petition within a window of time
where there may have been some ambiguity in the application of the registration statutes
does not compel departure from the general rule of retroactive application of judicial
opinions. Under these circumstances, "there is no unfairness or inequity" in concluding
Scott's convictions for violations of section 288a, subdivision (b)(2), render him
ineligible for resentencing under section 1170.126, subdivision (e)(2). (Johnson, at
p. 889.)
II
The People concede the amended abstract of judgment is incorrect in two respects:
(1) it reflects Scott's conviction under count 4 as a conviction for forcible oral copulation
under section 288a, subdivision (c), when it should reflect a conviction under section
288a, subdivision (b)(2); and (2) it reflects Scott's conviction under count 2 for unlawful
sexual intercourse by a person 21 years or older with a minor under age 16 as a violation
of section 261, subdivision (a)(2), when it should reflect a violation of section 261.5,
subdivision (d). We may order correction of clerical errors in an abstract of judgment at
any time. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Mendez (2010) 188
Cal.App.4th 47, 61.) We, therefore, order the trial court to amend the abstract of
judgment to correct these clerical errors.
9
DISPOSITION
Because Scott is ineligible for resentencing under section 1170.126, subdivision
(e)(2), the order denying the petition for recall of sentence is affirmed.
The trial court is directed to amend the abstract of judgment as follows: for count
2 replace the statutory reference to section 261, subdivision (a)(2), with section 261.5,
subdivision (d); for count 4 replace the statutory reference to section 288a, subdivision
(c), with section 288a, subdivision (b)(2). The court is also directed to forward an
amended abstract of judgment to the Department of Corrections and Rehabilitation.
MCCONNELL, P. J.
WE CONCUR:
BENKE, J.
O'ROURKE, J.
10