People v. Scott CA4/2

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

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 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

robbery (§ 411), and attempted forcible rape (§§ 664/261, subd. (a)(2)), for crimes

committed when he was 17. In 2013, defendant filed a petition to recall the sentence

pursuant to the provisions of section 1170, former subdivision (d)(2) (now § 1170, subd.

(d)(2)(A)(i)), and eventually the trial court conducted a new sentencing hearing. At

resentencing, the LWOP sentences were re-imposed, and defendant appeals from that

resentencing.

On appeal, defendant argues that a new resentencing is required because the court

misunderstood the scope of its discretion and reimposed the LWOP terms without

properly considering the factors relating to his youth as required by Miller v. Alabama

(2012) 567 U.S. 460 [132 S.Ct. 2455, 183 L.Ed. 2d 407] (Miller), made fully retroactive

pursuant to Montgomery v. Louisiana (2016) 577 U.S. 190 [136 S.Ct. 718, 193 L.Ed. 2d

599] (Montgomery). Defendant also argues that the sentencing court failed to make

requisite findings that defendant was irreparably corrupt or permanently incorrigible as

required pursuant to Montgomery, such that reimposition of LWOP sentences constituted

an abuse of discretion. We affirm.

1 All further statutory references are to the Penal Code, unless otherwise
indicated.

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 FACTS AND PROCEDURAL HISTORY

We take the following facts about the crime and initial trial from our original

opinion, People v. Scott (Nov. 26, 1997, E018728) [nonpub. opn.] at pages 2-4:

“The evidence established that defendant, age 17, ran away from home in

December 1994. Defendant prevailed on a high school acquaintance to let him stay with

her family in Alta Loma. The father of the family testified that, after a week, he became

concerned about his legal responsibilities because defendant was still a minor, and

defendant was reclusive and stayed out late. The father asked defendant to leave, and

gave him a week to move. Defendant appeared unhappy with the decision, but he was

not antagonistic or hostile. Defendant then moved out.

“On January 16, 1995, defendant told friends that he was going to get revenge on

the family by robbing them, raping the daughter and stabbing the mother. On January 17,

1995, defendant carried out his plan. He returned to the home around 1:30 in the

afternoon and apparently entered through an unlocked sliding glass door. The daughter

returned home from school between 3:30 and 4:00 p.m.

“According to his confession, defendant got into an argument with the daughter

which turned into a fight. Defendant then choked her into unconsciousness. At some

point she died of asphyxia due both to manual strangulation and suffocation from a gag.

“After the victim was unconscious, defendant gagged her and tied her spread eagle

to the bed. He cut away her clothes and underwear and removed her tampon. His erect

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penis was within an inch and half of her vagina when he decided not to rape her. He then

hid himself in the next room until 10:30 p.m.

“The mother was last seen alive at 5:50 p.m. when she picked up her dog from the

veterinarian. According to defendant, she arrived home and stayed downstairs, working

on her computer. The mother came upstairs, entered the daughter’s room and saw her

naked dead daughter tied to the bed. As she stood there, defendant attacked her from

behind with a knife. He stabbed her 39 times, cutting his own hand in the process. It was

stipulated that defendant’s blood was found on the mother’s nightgown.

“Defendant then took a stereo and a number of other items from the house, packed

them in the victim’s car and drove away. He eventually drove to a hospital for treatment.

He was subsequently arrested and the car was recovered from the hospital parking lot.

“The father was on a business trip at the time of the killings. He became

concerned when he could not reach his family and asked the mother’s coworkers to

investigate. They found the bodies on January 20th.” (People v. Scott, supra, E018728,

pp. 1-2.)

The following additional facts are taken from our opinion in a subsequent appeal

(People v. Scott (Nov. 14, 2017, E066467) [nonpub. opn.] pp. 4-5]):

“On March 27, 2013, approximately 17 years after beginning to serve his

sentence, defendant filed a petition with the superior court to recall his sentence pursuant

to section 1170, former subdivision (d)(2). That provision then stated, in relevant part:

‘When a defendant who was under 18 years of age at the time of the commission of the

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offense for which the defendant was sentenced to imprisonment for life without the

possibility of parole has served at least 15 years of that sentence, the defendant may

submit to the sentencing court a petition for recall and resentencing.’ (§ 1170, former

subd. (d)(2)(A)(i).)

“However, the superior court treated defendant’s petition as if it were one to recall

a sentence under the ‘Three Strikes’ law. (§ 1170.126.) The court denied the petition,

noting first that defendant was not sentenced under the Three Strikes law, and second that

he would have been ineligible for resentencing under section 1170.126 because his

current offenses include two counts of murder.

“Defendant appealed and, in an opinion filed March 7, 2014, this Court reversed

the superior court’s order with directions to properly exercise its discretion under section

1170, subdivision (d)(2), and the relevant criteria stated therein.

“The superior court reappointed the public defender. The matter was continued a

number of times. On March 20, 2015, the superior court granted defendant in propria

persona status. Defendant filed several motions and other pleadings in support of

resentencing. On May 14, 2015, the People filed its opposition. On June 5, 2015, the

court denied the petition after determining defendant was not entitled to have his sentence

recalled and a resentencing hearing scheduled. Specifically, the court found defendant

did not make the required showings of remorse and actions of rehabilitation by a

preponderance of the evidence.

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 “On August 19, 2015, defendant filed a notice of appeal. On July 22, 2016, this

Court ordered the notice of appeal be construed to have been timely filed. [¶] . . . [¶]

“[On November 14, 2017, we remanded the matter] to the superior court with

directions to determine whether defendant was entitled to a hearing to decide whether he

should be resentenced to a lesser term than life without parole.” (People v. Scott,

E066467, [nonpub opn.] pp. 4-5, 8.)

Prior to the hearing on defendant’s petition to recall the sentence (§ 1170, subd.

(d)(2)), the parties submitted arguments in favor of and against recall and reimposition of

the LWOP sentences. Defendant submitted a mitigation report, which included an

analysis of Miller factors, as well as documentation on which the sentencing consultant

relied, and urged the court to recall the LWOP sentences.

On October 26, 2018, the trial court concluded defendant met the criteria under

section 1170, subdivision (d)(2), recalled the sentence and set a hearing for resentencing.

In support of resentencing, defendant urged the court to consider the sentencing

mitigation report, which included defendant’s social history, educational records, and

records of defendant’s achievements while incarcerated. The People opposed

defendant’s petition, pointing out that much of the information about defendant’s family

circumstances were fabricated, that the LWOP terms were not imposed based on a

presumption that LWOP should be an automatic sentence, but, rather, were imposed as a

discretionary exercise after considering defendant’s youth and attendant characteristics,

such that reimposition of the two LWOP terms was warranted.

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 The trial court conducted the resentencing hearing on May 31, 2019, at which

defendant argued he should be resentenced to a term of 25 years-to-life. Defendant

argued that a “sentence of LWOP under Miller and Graham v. Florida (2010) 560 U.S.

48 [130 S.Ct. 2011, 176 L.Ed. 2d 825] (Graham) is only appropriate if the defendant was

beyond redemption, irreparably corrupt, and unfit to ever reenter society.” The People

responded that defendant’s cruelty and depravity in the commission of the murders

“show[ed] him to be irreparably corrupt and beyond rehabilitation and redemption.” The

trial court considered the Miller factors, and observed that the decisional authorities did

not completely prohibit sentences of LWOP for juveniles. In reviewing the Miller

factors, the court was aware that the Supreme Court had indicated there had to be strong,

specific factors to demonstrate irreparable corruption to warrant an LWOP sentence.

After weighing the aggravating and mitigating facts, the trial court observed the

offense to be particularly aggravated and chilling, and the defendant’s conduct showed a

significantly higher level of callousness and cruelty. It also considered that defendant

had begun to do things to show true remorse and the possibility of rehabilitation, but that

he had not yet shown it. The trial court concluded by finding “that the totality of those

circumstances due [sic] indicate an irreparable corruption rather than transient immaturity

of youth” and re-imposed the two LWOP sentences. Defendant timely appeals.

DISCUSSION

On appeal, defendant argues the trial court misunderstood the scope of its

discretion in re-imposing the two LWOP terms, seeking reversal of the sentence and a

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remand for resentencing. Specifically, he argues that the trial court failed to determine

whether defendant “is among the ‘rarest of juvenile[s]’ whose crime reflects ‘permanent

incorrigibility,’ and not ‘transient immaturity.’” Although he addresses a significant

portion of his brief to discussion of the Eighth Amendment principles underlying Miller,

Graham and Montgomery, his real complaint is that the resentencing court abused its

discretion by failing to make an express finding that defendant is irreparably corrupt or

permanently incorrigible. He is in error.

The People argue that any cruel and unusual punishment challenge to the sentence

is moot in light of the enactment of the amended provisions of section 3051, and,

alternatively, that the trial court properly considered the Miller/ (People v. Franklin

(2016) 63 Cal.4th 261 (Franklin)) factors in resentencing the defendant. We agree the

issue is moot, but we find the trial court considered the proper Miller criteria in light of

Montgomery and made the appropriate findings.

1. The Trial Court Duly Made Findings Required by Miller and Montgomery.

Defendant’s main complaint is that the resentencing court failed to expressly find

that defendant was “irreparably corrupt” or “permanently incorrigible,” rendering his

sentence constitutionally infirm as required by Miller and Montgomery. We disagree.

Miller was declared a substantive rule, entitled to retroactive application to cases

that were final on appeal in Montgomery. (Montgomery, supra, 577 U.S. 190 [136 S.Ct.

718, 734, 193 L.Ed. 2d 599].) “Although Miller did not foreclose a sentencer’s ability to

impose life without parole on a juvenile, the Court explained that a lifetime in prison is a

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disproportionate sentence for all but the rarest of children, those whose crimes reflect

“‘irreparable corruption.’”” (Montgomery, supra, 136 S.Ct. at p. 726, citing Miller,

supra, 567 U.S. at pp. 479-480, quoting Roper v. Simmons (2005) 543 U.S. 551, 573 [125

S.Ct. 1183, 161 L.Ed. 2d 1].) California courts have interpreted this language as

requiring an express determination whether the juvenile offender’s crime reflects

permanent incorrigibility arising from irreparable corruption. (People v. Padilla (2016) 4

Cal.App.5th 656, 673 [review granted Jan. 25, 2017, S239454].)

In Padilla, the California Supreme Court granted review on its own motion to

determine whether “Montgomery v. Louisiana (2016) 577 U.S. ___ [136 S.Ct. 718, 193

L.Ed.2d 599,], clarify[ied] that Miller v. Alabama (2012) 567 U.S. 460 [132 S.Ct. 2455,

183 L.Ed.2d 407,] (Miller) bans a sentence of life without the possibility of parole on a

specific class of juvenile offenders whose crimes reflect the transient immaturity of

youth, thereby requiring that trial courts determine that the crime reflects ‘irreparable

corruption resulting in permanent incorrigibility’ before imposing life without parole,” or

whether a trial court complies “with the constitutional mandates of Miller by giving due

consideration to the offender’s youth and attendant circumstances in exercising its

sentencing discretion under Penal Code section 190.5, subdivision (b)[.]” (People v.

Padilla (2017) 212 Cal.Rptr.3d 620 [387 P.3d 741].) Subsequently, review was

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].)

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 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-

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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.

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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

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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.

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 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.

We concur:

McKINSTER
J.

CODRINGTON
J.

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