In re Lionel A. Scott On Habeas Corpus

49 Cal.App.5th 1003

263 Cal.Rptr.3d 534

IN RE Lionel A. SCOTT on Habeas Corpus.

D076909

Court of Appeal, Fourth District, Division 1, California.

Filed June 4, 2020

Steven Schorr, San Diego, by appointment of the Court of Appeal, for petitioner.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Meredith S. White, Deputy Attorneys General, for respondent.

HALLER, J.

In 1984, petitioner Lionel Scott pleaded guilty to third degree assault in Minnesota ( Minn. Stat. Ann. § 609.223, subd. (1) ["assault[ ] ... inflict[ing] substantial bodily harm"] ), and admitted during his plea colloquy that he personally and intentionally pressed a warm or hot iron against his victim's face, inflicting a discernible burn mark that required medical treatment and was still somewhat visible four months later.

In 1999, Scott was convicted in California of several sex offenses. The sentencing court imposed a Three Strikes law sentence of 75 years to life based, in part, on the court's finding that Scott's earlier Minnesota conviction constituted a "serious felony" (and therefore a "strike") because Scott "personally used a deadly or dangerous weapon" (the iron) in the commission of the offense. ( Pen. Code, § 1192.7, subd. (c)(23) ; further undesignated statutory references are to the Penal Code.) In making this finding, the trial court relied solely on the elements of the Minnesota offense and the plea colloquy establishing the factual basis for Scott's guilty plea.

In 2019, Scott filed a petition for writ of habeas corpus in the California Supreme Court arguing he was entitled to relief under that court's recent decision in People v. Gallardo (2017) 4 Cal.5th 120, 226 Cal.Rptr.3d 379, 407 P.3d 55 ( Gallardo ), which held that a sentencing "court considering whether to impose an increased sentence based on a prior qualifying conviction may not"—consistent with a defendant's Sixth Amendment right to a jury trial—"make disputed findings about ‘what a trial showed, or a plea proceeding revealed, about the defendant's underlying conduct.’ " ( Gallardo , at p. 136, 226 Cal.Rptr.3d 379, 407 P.3d 55.) Instead, "[t]he court's role is ... limited to identifying those facts that were established by virtue of the conviction itself—that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea." ( Ibid. ) The Supreme Court issued an order to show cause, returnable to our court, directing the Department of Corrections and Rehabilitation to show cause "why [Scott] is not entitled to relief pursuant to [ Gallardo ], and why Gallardo should not apply retroactively on habeas corpus to final judgments of conviction."

The Courts of Appeal that have thus far considered Gallardo 's retroactivity are split on the issue and the question is pending before the California Supreme Court. (See In re Milton (2019) 42 Cal.App.5th 977, 988-999, 256 Cal.Rptr.3d 172 [holding Gallardo is not retroactive], review granted March 11, 2020, S259954 ( Milton ); In re Brown (2020) 45 Cal.App.5th 699, 716, 259 Cal.Rptr.3d 56 [holding, with one dissent, that Gallardo is retroactive], petn. for review pending, petn. filed April 28, 2020, S261454 ( Brown ).) For reasons we will explain, pending further guidance from the Supreme Court, we are persuaded by the Milton court's reasoning and conclusion that Gallardo does not apply retroactively. Additionally, even were we to reach a contrary conclusion, we would conclude Scott is not entitled to relief under Gallardo because the sentencing court based its findings regarding Scott's Minnesota conviction on undisputed facts "admitted by [Scott] in entering [his] guilty plea" ( Gallardo, supra , 4 Cal.5th at p. 124, 226 Cal.Rptr.3d 379, 407 P.3d 55 ), a practice expressly permitted by Gallardo . Accordingly, we deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Scott's Current Convictions and the Court's Strike Findings

In 1999, a jury convicted Scott of six counts of sex offenses against a minor. The trial court then found true the prosecution's allegations that Scott had suffered two foreign convictions that constituted strikes under California's Three Strikes law—a conviction in Missouri for residential burglary, and a conviction in Minnesota for third degree assault. Only the finding regarding the Minnesota conviction is at issue here.

The prosecutor argued the Minnesota conviction qualified as a strike under section 1192.7, subdivision (c)(23), which includes within its definition "any felony in which the defendant personally used a dangerous or deadly weapon." At the sentencing hearing, the court examined the change-of-plea packet and reporter's transcript from the Minnesota plea hearing.

According to the Minnesota court records, Scott pleaded guilty in 1984 to third degree assault, defined as follows: "Whoever assaults another and inflicts substantial bodily harm may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both." ( Minn. Stat. Ann. § 609.223, subd. (1).) During the Minnesota plea hearing, Scott's attorney questioned him as follows about the factual basis for his guilty plea:¹

"Q. Mr. Scott, the complaint alleges that on July 23rd, 1984 in the early morning hours you were in the apartment of your sister, [Sister], ... is that correct?

"A. Yes.

"Q. And it also alleges that on that occasion the two of you got into an argument, is that correct?

"A. Yes.

"Q. And that as a result of the argument, a scuffle occurred, is that correct?

"A. Yes.

"Q. And that the two of you were involved in the scuffle and that while that scuffle occurred, you placed an iron which was apparently in the room and which was warm or hot on the face of [Sister], is that correct?

"A. Yes.

"Q. And that as a result of that, [Sister] did suffer a burn on her face?

"A. Yes.

"Q. For which she was treated at the hospital.

"A. Right.

"Q. And you have seen [Sister] since that time, have you not?

"A. Yes.

"Q. And from your observation, whatever injury she sustained on that occasion [has] essentially healed, is that correct?

"A. Yes.

"Q. And any mark that was left as a result of the incident is quite unnoticeable from your observation?

"A. Yes.

"Q. But you agree that on that occasion you did assault her with the iron intentionally?

"A. Yes."

The prosecutor then questioned Scott as follows:

"[Prosecutor]: Just to clarify. When we are talking about an iron, we are talking about a steam iron, the kind of thing you would iron clothing with?

"[Scott]: Yes.

"[Prosecutor]: And at the time that iron was applied to her face, it caused a fairly discernable burn, did it not, from her left ear down her cheek bone?

"[Scott]: Yes.

"[Prosecutor]: And you are saying that now that burn, for all intents and purposes, cannot be seen? [¶] ... [¶]

"[Scott]: You can still see it, it's a small burn left on her cheek.

"[Prosecutor]: But it is nothing like it was right after the—

"[Scott]: No.

"[Prosecutor]: So you would agree that what was caused there was a substantial injury to her but a temporary one at the same time?

"[Scott]: Yes."

On this basis, Scott admitted the elements of the offense and pleaded guilty:

"Q. And you understand that the crime you are pleading guilty to is Third Degree Assault ... ?

"A. Yes.

"Q. And that is defined as whoever assaults another and inflicts substantial bodily harm, that that is the essential elements of Assault in the Third Degree?

"A. Yes."

After reviewing these records regarding Scott's Minnesota guilty plea, the trial court concluded Scott had admitted to personally using a dangerous weapon in the commission of the Minnesota assault:

"So I think that establishes a scenario where we have the defendant using an iron and the way he used it caused a serious injury, and the way he used it makes it a deadly or dangerous weapon under California law and therefore it appears to this court that the prior ... does qualify since the defendant, based on the evidence, ... in fact personally used a deadly or dangerous weapon when he placed a hot steam iron against the victim's face which did cause an injury. And the law does say that ... the way that he uses the object can make it a deadly or dangerous weapon."

Based on its finding that Scott's Missouri and Minnesota convictions qualified as strikes, the trial court sentenced him to a third-strike sentence of 75 years to life on the sex offenses.

Appellate and Habeas Proceedings

In 2000, we upheld Scott's convictions in consolidated direct appeals in which he challenged, among other things, the trial court's "finding that [the] prior felony conviction in Minnesota constituted a strike under the ‘Three Strikes’ law." ( People v. Scott (2000) 83 Cal.App.4th 784, 789, 801, 100 Cal.Rptr.2d 70.) In the nonpublished portion of our opinion, we held "there was substantial evidence to support the trial court's finding that Scott used the iron as a dangerous or deadly weapon." ( People v. Scott ) (Sept. 12, 2000, D033131 [nonpub. opn.].) The California Supreme Court denied Scott's petition for review.

In 2018, the year after the Gallardo decision was filed, Scott filed a petition for writ of habeas corpus in superior court arguing the sentencing court engaged in improper factfinding in violation of Gallardo . The court denied Scott's petition as procedurally barred and lacking substantive merit.

Scott then raised the same challenge via writ petition to our court. We denied the petition, explaining it was "procedurally barred because his attack on the use of the Minnesota ... conviction as a strike was already decided adversely to him on appeal." (See In re Reno (2012) 55 Cal.4th 428, 476, 146 Cal.Rptr.3d 297, 283 P.3d 1181 ["[L]egal claims that have previously been raised and rejected on direct appeal ordinarily cannot be reraised in a collateral attack by filing a petition for a writ of habeas corpus."].) We further explained that because the sentencing court...