People v. Scott CA4/2

Filed 9/27/23 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E078975

v. (Super.Ct.No. FSB21002623)

GERALD GLENN SCOTT, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,

Judge. Affirmed.

Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant

and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sedival, Andrew S.

Mestman, and Randall D. Einhorn Deputy Attorneys General, for Plaintiff and

Respondent.

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 A jury convicted defendant and appellant Gerald Glenn Scott of several charged

sex offenses, though it acquitted him or found him guilty only of lesser included offenses

on several other counts. The trial court found true that he had a prior strike offense,

declined to dismiss that strike under People v. Superior Court (Romero) (1996) 13

Cal.4th 497 (Romero), and imposed a sentence of 36 years.

Scott contends that several instructional errors require reversal of the judgment

against him as to the most serious of his conviction offenses, two counts of forcible oral
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copulation of a minor 14 years old or older (Pen. Code , § 287, subd. (c)(2)(C), counts 4

and 5), and one count of forcible sexual penetration of a minor 14 years old or older

(§ 289, subd. (a)(1)(c), count 6). He further contends that the trial court abused its

discretion in denying his Romero motion by failing to weigh mitigating factors as

required by section 1385, as amended by Senate Bill No. 81 (Stats. 2021, ch. 721, § 1)

(Senate Bill 81). We affirm the judgment, finding no prejudicial instructional error and

no abuse of discretion.

I. FACTS

Scott was tried on seven counts involving three different victims, all of whom are

related to him, and two of whom were minors at the time of the alleged offenses. The

counts at issue in this appeal, however—counts 4, 5, and 6, all arising from a single

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Undesignated statutory references are to the Penal Code.

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incident—involve only Scott’s cousin C.M., who was approximately fourteen years and
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seven months old at the time of the offenses. Scott was then 33 years old.

C.M. first met Scott in August or September 2018, after her family arrived in

California from out of state. She testified that she was 14 years old when she came to

California, consistent with her report that she was born in February 2004.

On an evening in September 2018, C.M. believed that she was walking with Scott

to the house of his child’s mother, someone C.M. had met and liked. Instead, Scott lured

C.M. to an empty warehouse or garage. There, he began touching her and forcing her to

touch him, and demanded that she remove her clothes. C.M. complied, leaving her

dressed in only a bra and underwear. C.M. said that she wanted to go home, and Scott

responded: “You’re not going home until I tell you to” or “until I say.” C.M. asked

“What do you mean,” and he said “Oh, you’re gonna give me this.” Scott then “laid [her]

down aggressively,” pinned her down, and sexually assaulted her, despite her verbal and

physical efforts to resist. The details of that sexual assault will be discussed below as

necessary to address Scott’s arguments on appeal.

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The alleged victim of count 1 (lewd or lascivious act on a child under 14 years
old, § 288, subd. (a)), count 2 (assault by means of force likely to produce great bodily
injury, § 245, subd. (a)(4)), and count 3 (violation of a domestic relations court order
resulting in injury, § 273.6, subd. (b)) is R.S., Scott’s biological daughter (born January
2009). The alleged victim of count 7 (attempted forcible rape, § 261, subd. (a)(2)) is
D.S., who is an adult and Scott’s sister.

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 C.M. did not immediately report the assault. She explained at trial that she was

scared and felt uncomfortable telling her family. She first reported it on November 5,

2018, to a deputy while she was in custody at juvenile hall.

Scott did not testify at trial. The defense argued that Scott’s family members are

“liars” who “make sexual abuse allegations that are unfounded.” The defense

emphasized inconsistencies in statements by prosecution witnesses, including C.M.; a

county social services agency’s 2016 finding that a hotline report, which stated that Scott

was a registered sex offender who was sexually abusing his niece and nephew, was

unfounded (he was not a registered sex offender at the time, and the alleged victims and

their parents denied the report); Scott’s 2019 acquittal on charges alleging sexual abuse
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and domestic violence against his daughter R.S. and her mother ; and Scott’s sister D.S.’s

trial testimony recanting her previous allegations that Scott had attempted to rape her.
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The jury found Scott guilty on counts 4, 5, and 6. The trial court found true the

allegation that Scott had a prior strike offense, a 2013 conviction for burglary (§ 211).

The trial court denied Scott’s Romero motion to dismiss the strike and sentenced him

3
In 2019, Scott was convicted of showing harmful material to a minor (§ 313.1,
subd. (a)(1)), but acquitted of annoying or molesting a child (§ 647.6, subd. (a)(1)),
battery on a spouse, cohabitant or child’s parent (§ 243, subd. (e)(1)), and vandalism (§
594, subd. (a)).
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The jury acquitted Scott on count 1 and count 7, and found him guilty only of
lesser included misdemeanor offenses on counts 2 and 3. The jury found not true
multiple victim allegations under the One Strike law (§ 667.61, subd. (e)(4)) that had
accompanied counts 1, 4, 5, 6, and 7.

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accordingly. Scott’s 36-year sentence consists of three consecutive 12-year terms (the
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midterm of six years each, doubled for the strike prior) for counts 4, 5, and 6.

II. DISCUSSION

A. Jury Instructions

1. Age Element of Offenses

Both section 287, subdivision (c)(2)(C) (counts 4 and 5), and section 289,

subdivision (a)(1)(C) (count 6), apply only if the offense was committed against a minor

who is 14 years of age or older. In various places, the jury instructions and verdict forms

used in this case mention that Scott was charged with offenses against a minor 14 years

of age or older. The instructions given regarding those offenses, however—revised

versions of CALCRIM No. 1015 and CALCRIM No. 1045—do not include the age of

the victim as one of the elements. And no other instruction expressly requires the jury to

make a unanimous finding as to C.M.’s age. Scott’s point that the instructions are

erroneous in that they are most naturally read to describe the victim’s age as a given,

rather than something the People were required to prove beyond a reasonable doubt, is

well taken.

Nevertheless, Scott has not demonstrated that this error requires reversal.

“[I]nstructional error is harmless ‘where a reviewing court concludes beyond a

reasonable doubt that the omitted element was uncontested and supported by

overwhelming evidence.’” (People v. Mil (2012) 53 Cal.4th 400, 417.) “Our task, then,

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The court also imposed stayed 180-day terms for counts 2 and 3.

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is to determine ‘whether the record contains evidence that could rationally lead to a

contrary finding with respect to the omitted element.’” (Ibid.)

The record in this case lacks any evidence that could support a finding either that

C.M. was no longer a minor, or that she was younger than 14 years old, at the time of the

offenses. The prosecution’s first question of C.M. at trial in December 2021 was her age,

which she said was “17.” Its second question elicited her birthday, with C.M. giving the

precise date in February 2004. C.M. arrived in California and met Scott for the first time

in August 2018, and she reported the assault by Scott in November 2018, establishing

that she was 14 years old during the entire relevant period. At no point were any of these

dates contested by the defense, and there is no other evidence in the record that could

rationally lead to the conclusion that C.M. was not a minor 14 years or older at the time

of the offenses.

Scott’s arguments in support of a different conclusion are unpersuasive. Certainly,

as Scott argues, there are cases where extended deliberations, requests for readback of

testimony, or an acquittal on some counts may indicate that a jury found the case close,

and thus tending to support a finding of prejudice. Here, such reasoning is inapplicable.

There may indeed have been some issues which Scott’s jury found difficult to decide.

Nevertheless, we see no possibility that the jury would have required more than a

moment to decide beyond a reasonable doubt that C.M. was a minor over the age of 14

when the alleged offenses occurred, had it been asked to make such a finding. This is a

paradigmatic example of harmless error.

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 2. Lesser Included Offenses

Scott contends that his convictions on counts 4, 5, and 6 must be reversed because

the trial court failed to instruct the jury on the lesser included offenses of assault (§ 240),

battery (§ 242), oral copulation with a minor (§ 287, subd. (b)(1)), sexual penetration of a

minor (§ 289, subd. (h)), and assault with intent to commit oral copulation or sexual

penetration (§ 220, subd. (a)(1)). The People concede that the court “should have

instructed on lesser offenses” with respect to one of the two forcible oral copulation

charges (count 4 or 5), acknowledging an ambiguity in the evidence. The People argue,

nevertheless, that (1) there is no substantial evidence that Scott was guilty only of the

lesser included offenses as to the other two counts involving C.M., so no instructions on

those lesser offenses were required, and (2) any error was harmless. We agree with the

People’s conclusions.

a. Applicable law

“A trial court must instruct on all lesser included offenses supported by substantial

evidence.” (People v. Duff (2014) 58 Cal.4th 527, 561.) This obligation arises

“whenever there is evidence in the record from which a reasonable jury could conclude

the defendant is guilty of the lesser, but not the greater, offense.” (Ibid.; accord People v.

Breverman (1998) 19 Cal.4th 142, 162 (Breverman) [“‘Substantial evidence’ in this

context is ‘“evidence from which a jury composed of reasonable [persons] could . . .

conclude[]’” that the lesser offense, but not the greater, was committed”].)

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 We review de novo whether the trial court erred by failing to instruct on a lesser

included offense. (People v. Cole (2004) 33 Cal.4th 1158, 1215.) We determine whether

any error was prejudicial under People v. Watson (1956) 46 Cal.2d 818. (See Breverman,

supra, 19 Cal.4th at pp. 165, 169 [failure to instruct on lesser included offense is error of

California law alone and therefore subject to state standards of reversibility].) Under this

standard, the failure to instruct on a lesser included offense “is not subject to reversal

unless an examination of the entire record establishes a reasonable probability that the

error affected the outcome.” (Breverman, at p. 165.) In applying this standard, we focus

“not on what a reasonable jury could do, but what such a jury is likely to have done in the

absence of the error under consideration.” (Id. at p. 177 (italics omitted).) We may

consider, “among other things, whether the evidence supporting the existing judgment is

so relatively strong, and the evidence supporting a different outcome is so comparatively

weak, that there is no reasonable probability the error of which the defendant complains

affected the result.” (Ibid., italics omitted.)

b. Additional background

Counts 4 and 5 both allege forcible oral copulation, but one is based on Scott

orally copulating C.M., while the other is based on Scott making C.M. orally copulate

him. In her November 2018 interview, C.M. described Scott making her engage in both

acts (as well as digitally penetrating her as alleged in count 6) before ejaculating on her

face.

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 At trial, the prosecution elicited express testimony from C.M. about Scott orally

copulating and digitally penetrating her. When asked to continue her narrative of what

happened during the assault, however, C.M. said that she didn’t remember because “it

was just so long ago” (Scott’s trial was conducted in November and December 2021).

The prosecution did not follow up with any specific questions about whether Scott had

forced her to orally copulate him. The prosecution did elicit the additional details that at

some point Scott removed his clothing and masturbated until he ejaculated on her face.

c. Analysis

The People concede, and we agree, that the trial court erred by not instructing on

lesser included offenses as to the forcible oral copulation count based on Scott forcing

C.M. to orally copulate him. C.M. testified at trial that Scott forcibly orally copulated

and digitally penetrated her, but did not say that he forced her to orally copulate him. In

theory, on that basis the jury could have concluded there was reasonable doubt as to the

offense as charged, but nevertheless convicted on a lesser included offense, such as

assault or battery, based on him ejaculating on her through masturbation rather than oral

copulation. As such, the trial court should have instructed on any lesser included
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offenses supported by the evidence.

We are not persuaded by Scott’s contention that the trial court was required to

instruct on lesser included offenses as to count 4, 5, and 6. There was no substantial

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The People argue that not all the lesser included offenses proposed by Scott
were supported by substantial evidence. For present purposes, however, we need not
decide exactly which lesser included offense instructions should have been given.

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evidence from which a jury could have concluded that Scott was guilty only of a lesser

included offense as to the second oral copulation count and the sexual penetration count.

As discussed, the record contains no evidence from which the jury reasonably could have

concluded C.M. was not a minor over the age of 14 at the time of the offenses. Scott also

argues that the jury could have found he “committed assault and/or battery by touching

C.M.’s crotch or vagina,” but found reasonable doubt as to whether he “forcibly

penetrated the opening of C.M.’s vagina,” and whether he “used any force, compulsion,

or restraint beyond the force necessary to commit the act of penetrating C.M.’s vagina.”

These conclusory assertions, however, are unsupported by citation to the evidence,

authority, or other reasoned explanation as to how the jury might have reached such a

conclusion on the record before it. We therefore need not discuss the matter in any detail.

(See People v. Dougherty (1982) 138 Cal.App.3d 278, 282-283 [argument of counsel is

insufficient; briefs must contain factual underpinning, record references, argument, and

authority]; accord People v. Stanley (1995) 10 Cal.4th 764, 793 [it is “not our role” to

“construct a theory supportive of [defendant’s] innocence and inconsistent with the

prosecution’s version of the evidence”].) “Generally,” where, as here, “a defendant

completely denies complicity in the charged crime, there is no error in failing to instruct

on a lesser included offense.” (People v. Gutierrez (2003) 112 Cal.App.4th 704, 709.)

Except as conceded by the People regarding one count, Scott has not demonstrated any

exception to this general rule, and our examination of the record has discovered none.

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 Moreover, even assuming error on counts 4, 5, and 6, Scott has not demonstrated

prejudice. His only theory at trial was that he had no sexual contact at all with C.M. and

she was lying about everything, both in November 2018 and again at trial. He offered no

evidence or argument, even in the alternative, in support of the notion that he engaged in

any lesser degree of criminal conduct towards C.M., but not the charged offenses. That

the jury convicted Scott signifies that it simply rejected Scott’s version of events.

Moreover, as the jury demonstrated by its verdicts on counts involving other victims, it

had no compunction about acquitting Scott when it found the People had not satisfied

their burden of proof. We infer that the jury credited the version of events C.M.

described in her November 2018 interview, which provides ample evidentiary support for

all the elements of counts 4, 5, and 6, and that it accepted at face value C.M.’s statement

at trial three years later that some details had by then faded in her memory. Though it is

logically possible, it is not reasonably probable that any juror in this case would have

found C.M. credible enough to leave no reasonable doubt about whether Scott sexually

assaulted her, but not sufficiently credible about which sex acts were inflicted on her.

Accordingly, we conclude that any error in failing to instruct on lesser included

offenses was harmless.

3. CALCRIM 1191B

Scott argues that CALCRIM No. 1191B, which was given in this case, “allowed

the jury to rely on currently charged offenses to find that [he] committed other currently

charged offenses and it violated his Fourteenth Amendment right to due process of law.

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He concedes, however, that we are bound to reject his argument because of People v.

Villatoro (2012) 54 Cal.4th 1152 (Villatoro), which approved a modified version of

CALCRIM No. 1191 similar to the instruction given here. He raises the issue to preserve

the argument for future proceedings, potentially including a request that our Supreme

Court reconsider its decision in Villatoro or a habeas petition in federal court. We accept

Scott’s concession, and need not discuss the point further.

4. Cumulative Error

Scott contends that he is entitled to reversal because of cumulative error. “[A]

series of trial errors, though independently harmless, may in some circumstances rise by

accretion to the level of reversible and prejudicial error.” (People v. Hill (1998) 17

Cal.4th 800, 844.) “The ‘litmus test’ for cumulative error ‘is whether defendant received

due process and a fair trial.’” (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)

None of the actual or assumed errors discussed above come close to amounting to

prejudicial error individually, and they are “no more prejudicial together.” (People v.

Poletti (2015) 240 Cal.App.4th 1191, 1217.) Even considering the errors in the

aggregate, Scott was not deprived of a fair trial or denied due process. “Lengthy criminal

trials are rarely perfect, and this court will not reverse a judgment absent a clear showing

of a miscarriage of justice.” (People v. Hill, supra, 17 Cal.4th at p. 844.) Scott has not

made such a showing. As a result, we reject his claim of cumulative error.

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B. Senate Bill 81

Scott contends that the trial court abused its discretion in denying his Romero

motion because it failed to conduct the analysis in accordance with recent amendments to

section 1385 made by Senate Bill 81. This argument fails because those amendments

apply to enhancements, but not to prior strike convictions under the Three Strikes law.

Whether Senate Bill 81’s amendments to section 1385 apply to prior strike

convictions is a question of statutory interpretation, which we review de novo. (People v.

Tirado (2022) 12 Cal.5th 688, 694.)

Under section 1385, subdivision (a), the trial court “may . . . in furtherance of

justice, order an action to be dismissed.” This authority includes the power to “strike or

vacate an allegation or finding under the Three Strikes law that a defendant has

previously been convicted of a serious and/or violent felony . . . .” (People v. Williams

(1998) 17 Cal.4th 148, 158.)

Effective January 1, 2022, Senate Bill 81 amended section 1385 “to specify factors

that the trial court must consider when deciding whether to strike enhancements from a

defendant’s sentence in the interest of justice.” (People v. Sek (2022) 74 Cal.App.5th

657, 674 (italics added); see § 1385, subd. (c).) Under the amended section 1385, a

sentencing court must “consider and afford great weight to evidence offered by the

defendant to prove” enumerated mitigating circumstances. (§ 1385, subd. (c)(2).) “Proof

of the presence of one or more of these circumstances weighs greatly in favor of

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dismissing the enhancement, unless the court finds that dismissal of the enhancement

would endanger public safety.” (§ 1385, subd. (c)(2).)

Thus, “[s]ubdivision (c) of section 1385 expressly applies to the dismissal of an

‘enhancement.’” (People v. Burke (2023) 89 Cal.App.5th 237, 243 (Burke); see § 1385,

subd. (c)(1).) “Ordinarily words used in a statute are presumed to be used in accordance

with their established legal or technical meaning.” (People v. Carter (1996) 48

Cal.App.4th 1536, 1540.) The term “enhancement” has a well-established technical

meaning in California law, and that meaning does not include the sentencing

consequences under the Three Strikes law for a defendant who has prior strike

convictions. (People v. Williams (2014) 227 Cal.App.4th 733, 744 [“The Three Strikes

law is a penalty provision, not an enhancement. It is not an enhancement because it does

not add an additional term of imprisonment to the base term”]; see also Romero, supra,

13 Cal.4th at p. 527 [“The Three Strikes law . . . articulates an alternative sentencing

scheme for the current offense rather than an enhancement”].) “The Legislature did not

otherwise define the word ‘enhancement’ in section 1385.” (Burke, supra, at p. 243.)

“We presume the Legislature was aware of, and acquiesced in, both this established

judicial definition of enhancement and the distinction between an enhancement and an

alternative sentencing scheme such as the Three Strikes law.” (Ibid.) “Because the

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statutory language is clear and unambiguous, we follow its plain meaning and do not
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consider the legislative history cited by defendant.” (Ibid.)

In sum, “[t]he plain language of subdivision (c) of section 1385 applies only to an

‘enhancement,’ and the Three Strikes law is not an enhancement. We therefore conclude

that section 1385, subdivision (c)’s provisions regarding enhancements do not apply to

the Three Strikes law.” (Burke, supra, 89 Cal.App.5th at p. 244.) Thus, the trial court

was not required to consider the factors listed in section 1385, subdivision (c)(2) in

deciding whether to dismiss Scott’s prior strike conviction. Scott has not argued that the

trial court erred in performing the traditional analysis applicable to prior strikes. (See

People v. Williams, supra, 17 Cal.4th at p. 161.) He therefore has not demonstrated any

abuse of discretion in the court’s decision to deny his Romero motion.

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As noted by the court in Burke, “much of the legislative history [of Senate Bill
81] is inconsistent with this plain language and suggests that the term enhancement
includes the Three Strikes law.” (Burke, supra, 89 Cal.App.5th at p. 243, fn. 3; but see
Assem. Com. on Public Safety, Rep. on Sen. Bill No. 81 (2021-2022 Reg. Sess.), June
28, 2021, pp. 5-6 [discussing established legal meaning of “enhancement” and stating:
“The presumption created by this bill applies to enhancements, but does not encompass
alternative penalty schemes”].) “To the extent this history reflects a legislative intent
different than that expressed in the plain language of the bill, that is a matter for the
Legislature to correct.” (Burke, at p. 243, fn. 3.)

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 III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL
J.

We concur:

RAMIREZ
P. J.

FIELDS
J.

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