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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                    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.




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