Filed 7/22/22 P. v. Scott CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B315975
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA148089)
v.
DEMISHA MICHELE SCOTT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Michael J. Shultz, Judge. Reversed and
remanded with directions.
Aaron J. Schechter, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Amanda V. Lopez and Blythe J.
Leszkay, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________________
Demisha Scott appeals the summary denial of a petition for
resentencing under Penal Code1 section 1172.6 (former
§ 1170.95).2
Appellant was charged by felony complaint filed
January 31, 2019, with the murder of Victor Waters on
January 28, 2019. (§ 187, subd. (a); count 1.) In connection with
the murder, the complaint further alleged that appellant
personally used a deadly and dangerous weapon—a knife
(§ 12022, subd. (b)(1)), and personally inflicted great bodily injury
on the victim (§ 12022.7, subd. (a)). Appellant was also charged
with assault with a deadly weapon—a knife—against Victor
Waters. (§ 245, subd. (a)(1); count 2.)
On August 28, 2019, before any preliminary hearing was
conducted, the parties negotiated a plea. Pursuant to the plea,
the People moved to amend the felony complaint to add one count
of voluntary manslaughter. (§ 192, subd. (a); count 3.) With the
understanding that the other charges and enhancements would
be dismissed at sentencing, appellant pleaded no contest to
count 3, voluntary manslaughter. Appellant stipulated to a
factual basis for the plea pursuant to the police reports, but the
reports are not in the record.3 Appellant was sentenced on
October 4, 2019 to the agreed term of 11 years in state prison.
1 Undesignated statutory references are to the Penal Code.
2 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text. (Stats. 2022,
ch. 58, § 10.)
3 The appellate record also lacks a probation officer’s
report, which was not ordered by the trial court.
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Counts 1 and 2, for murder and assault with a deadly weapon,
along with the enhancement allegations, were dismissed.
Appellant filed a petition for resentencing and request for
appointment of counsel pursuant to section 1172.6 on
September 10, 2021. Without appointing counsel, the superior
court summarily denied the petition on September 16, 2021, on
the ground that appellant was convicted of manslaughter, not
murder. On October 27, 2021, appellant filed a timely notice of
appeal.
While this appeal was pending, Senate Bill No. 775 was
enacted and became effective on January 1, 2022. (Sen. Bill
No. 775, Stats. 2021, ch. 551.) The new legislation expanded
section 1172.6’s scope to allow a person who was “convicted of
manslaughter when the prosecution was allowed to proceed on a
theory of felony murder or murder under the natural and
probable consequences doctrine” to petition the court for relief
under former section 1170.95 (now § 1172.6). (Sen. Bill No. 775,
Stats. 2021, ch. 551, § 1, subd. (a).) Appellant contends that
because her plea to manslaughter is no longer a barrier to relief
under section 1172.6, the matter should be remanded for the trial
court to appoint counsel, issue an order to show cause, and
conduct further proceedings under section 1172.6, subdivision (d).
We agree.
DISCUSSION
A. Applicable legal principles
In 2018, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.), effectively abolishing the natural and
probable consequences doctrine in cases of murder and limiting
the application of the felony-murder doctrine. (Stats. 2018,
ch. 1015, § 1, subd. (f); People v. Gentile (2020) 10 Cal.5th 830,
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842–843 (Gentile); People v. Martinez (2019) 31 Cal.App.5th 719,
723 (Martinez).) With one narrow exception (where the victim
was a peace officer killed in the performance of duty and the
defendant knew or reasonably should have known that fact
(§ 189, subd. (f)), Senate Bill No. 1437 effectively eliminates
murder convictions premised on any theory of vicarious
liability—that is, any theory by which a person can be convicted
of murder for a killing committed by someone else, such as felony
murder or the natural and probable consequences doctrine—
unless the People also prove that the nonkiller defendant
personally acted with the intent to kill or was a major participant
who acted with reckless disregard to human life. (§ 189, subd. (e)
[requiring that participant in specified felony during which a
death occurs may be convicted of murder only if he or she was the
actual killer, an aider and abettor who acted with intent to kill,
or a major participant in the underlying felony who acted with
reckless indifference to human life]; § 188, subd. (a)(3) [amending
the natural and probable consequences doctrine to require that
all principals act with express or implied malice to be convicted of
murder (with the exception of felony murder under § 189,
subd. (e))]; Gentile, supra, 10 Cal.5th at pp. 842–843.)
The legislation also enacted former section 1170.95 (now
§ 1172.6), which established a procedure for vacating murder
convictions for defendants who could no longer be convicted of
murder because of the amendments to sections 188 and 189.
(Stats. 2018, ch. 1015, § 4; People v. Lewis (2021) 11 Cal.5th 952,
957, 959, 971 (Lewis)); Gentile, supra, 10 Cal.5th at p. 843;
Martinez, supra, 31 Cal.App.5th at pp. 722–723.) A defendant
convicted of murder, attempted murder, or manslaughter may
file a petition under section 1172.6 to have her conviction vacated
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and be resentenced, if she “could not presently be convicted of
murder or attempted murder because of changes to Section 188
or 189 made effective” as a part of Senate Bill No. 1437.
(§ 1172.6, subd. (a)(3).)
When a petition for resentencing under section 1172.6
meets the basic requirements set forth in subdivision (b)(1) and
(b)(2), the superior court must appoint counsel for petitioner if
requested (§ 1172.6, subd. (b)(3)), obtain briefing from both sides,
and hold a hearing to determine whether the petitioner has made
a prima facie showing for relief (id., subd. (c)). “If the petitioner
makes a prima facie showing that the petitioner is entitled to
relief, the court shall issue an order to show cause.” (Ibid.; Lewis,
supra, 11 Cal.5th at p. 960.) Our Supreme Court has explained
that “the prima facie inquiry under [section 1172.6,]
subdivision (c) is limited. Like the analogous prima facie inquiry
in habeas corpus proceedings, ‘ “the court takes petitioner’s
factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue
an order to show cause.” ’ ([People v.] Drayton [(2020)] 47
Cal.App.5th [965,] 978, quoting Cal. Rules of Court, rule
4.551(c)(1).)” (Lewis, supra, 11 Cal.5th at p. 971.)
As Lewis explained, “ ‘[a] court should not reject the
petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing.’ [Citations.] ‘However, if
the record, including the court’s own documents, “contain[s] facts
refuting the allegations made in the petition,” then “the court is
justified in making a credibility determination adverse to the
petitioner.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.) But the high
court cautioned that the superior court “should not engage in
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‘factfinding involving the weighing of evidence or the exercise of
discretion.’ [Citation.] . . . [T]he ‘prima facie bar was
intentionally and correctly set very low.’ ” (Lewis, supra, at
p. 972.)
Nevertheless, the superior court may deny a petition if the
record demonstrates the petitioner is ineligible for resentencing
as a matter of law. (Lewis, supra, 11 Cal.5th at pp. 966, 972,
fn. 6.) In the context of a guilty plea, “a petitioner convicted of
murder is ineligible for resentencing if the record establishes, as
a matter of law, that (1) the complaint, information, or
indictment did not allow the prosecution to proceed under a
theory of felony murder, murder under the natural and probable
consequences doctrine, or another theory of imputed malice;
(2) the petitioner was not convicted under such theory; or (3) the
petitioner could presently be convicted of murder or attempted
murder under the law as amended by Senate Bill No. 1437
(2017–2018 Reg. Sess.).” (People v. Flores (2022) 76 Cal.App.5th
974, 987 (Flores); see § 1172.6, subd. (a)(1)–(3).) However, “[o]nly
where the record of conviction contains facts conclusively refuting
the allegations in the petition may the court make credibility
determinations adverse to the petitioner.” (Flores, at p. 991,
citing Lewis, supra, 11 Cal.5th at p. 971.)
B. The record in this case does not demonstrate as a matter of
law that appellant is ineligible for relief
Respondent agrees that appellant’s plea to manslaughter is
no longer a barrier to relief under section 1172.6, but contends
that appellant is still ineligible for relief as a matter of law
because she was specifically charged as the actual killer. “By
charging appellant with personally committing the killing,”
respondent asserts, “the prosecution elected to remove any theory
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of liability imputing malice.” According to respondent, the failure
to appoint counsel thus constituted harmless error, and the
superior court’s denial of the petition⎯albeit for the wrong
reason⎯should be affirmed. (See People v. Zapien (1993) 4
Cal.4th 929, 976 [“ ‘ “a ruling or decision, itself correct in law, will
not be disturbed on appeal merely because given for a wrong
reason” ’ ”].) We disagree.
The record in this case contains no facts whatsoever about
the circumstances of the victim’s death. There was no
preliminary hearing. There is no probation report. Appellant
stipulated to a factual basis for her plea to voluntary
manslaughter pursuant to a police report that is not in the
record. The plea colloquy lacks any reference to the facts
underlying the charged offenses. In short, the record of
appellant’s conviction contains no facts that cast doubt on the
allegations in the petition, much less conclusively refute them,
that would permit a prima facie denial of appellant’s petition for
resentencing under section 1172.6.
The felony complaint charged appellant in count 1 with
murder in violation of section 187, subdivision (a), alleging that
she “did unlawfully, and with malice aforethought murder
VICTOR WATERS, a human being.” The Attorney General
concedes that this sort of “generic” charge of murder does not
limit the prosecution to any particular theories. (Flores, supra,
76 Cal.App.5th at p. 987 [generic charge of murder does not
exclude any particular theory of murder]; People v. Rivera (2021)
62 Cal.App.5th 217, 233 (Rivera) [generically charging murder
did not preclude prosecution based on any particular theory of
murder]; People v. Eynon (2021) 68 Cal.App.5th 967, 977–978
(Eynon) [same].) And in entering her plea, appellant did not
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admit or stipulate to any specific facts that would have precluded
prosecution on any particular theory of murder. In short, neither
the charge nor the plea in this case excludes appellant from relief
under section 1172.6 as a matter of law.
However, the People contend that the two enhancement
allegations⎯that appellant “ ‘personally used a deadly and
dangerous weapon’ ” and “ ‘personally inflicted great bodily injury
upon [the victim]’ ”⎯establish appellant’s direct participation in
the offense as the actual killer. Respondent thus argues that
“where, as here, the totality of charges specifically alleged that
the defendant was the actual killer with no accomplice, the
murder charge is no longer generic because the prosecution could
rely only on direct perpetrator or felony murder theories that
remain valid.” Not so.
An enhancement allegation in a felony complaint or
information does not establish its own truth, and certainly does
not constrain the prosecution from proceeding on any theory of
murder supported by the evidence. (Eynon, supra, 68
Cal.App.5th at pp. 975–976; Rivera, supra, 62 Cal.App.5th at
pp. 233–234 [allegation of special circumstance requiring intent
to kill does not preclude prosecution based on natural and
probable consequences doctrine].) Indeed, even “[b]eing held to
answer on an allegation does not constitute a factual finding that
the allegation is true . . . [or yet] a determination that the
allegation is supported by substantial evidence.” (Eynon, at
pp. 975–976.)
Here, both enhancements could have been alleged against
appellant even if the prosecution were proceeding on a theory of
imputed malice involving someone else⎯not appellant⎯as the
actual killer. For example, appellant and an accomplice, both
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armed with knives, could have been in a fight with the victim or
attempting to rob him when the accomplice stabbed the victim.
Under such a scenario, the prosecution might elect (or, if the
accomplice is not apprehended, be forced) to charge appellant and
the accomplice separately with murder and proceed against
appellant on a felony-murder or natural and probable
consequences theory. In these circumstances, the People would
certainly have the option of charging appellant with the personal
use of a deadly weapon enhancement and a personal infliction of
great bodily injury enhancement.
Of course, no such facts appear anywhere in the record
before us. But neither are there any facts in the record to
support respondent’s claim that appellant was the actual killer
and was necessarily so charged. In short, nothing in the record
shows that appellant acted alone or “conclusively establish[es] as
a matter of law that [she] was the actual killer, acted with intent
to kill or actual malice, or was a major participant in an
underlying crime who acted with reckless indifference to human
life.” (Flores, supra, 76 Cal.App.5th at p. 991.) The felony
complaint does not preclude the possibility that appellant could
have been convicted of murder under a theory of imputed malice
that Senate Bill Nos. 775 and 1437 eliminated. To conclude
appellant is ineligible for resentencing on this record would
require not just judicial factfinding, but judicial speculation, in
which neither we nor the superior court may engage. (See Lewis,
supra, 11 Cal.5th at pp. 971–972.)
We must therefore reverse and remand the matter to the
superior court to issue an order to show cause and conduct
further proceedings in accordance with section 1172.6,
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subdivision (d). (See Flores, supra, 76 Cal.App.5th at pp. 971–
972.) We express no opinion on the merits of the petition.
DISPOSITION
The superior court’s order denying the petition for
resentencing is reversed. On remand, the court shall issue an
order to show cause and conduct further proceedings as required
under Penal Code section 1172.6, subdivision (d).
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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