Filed 6/30/26 P. v. Scott CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE,
Plaintiff and Respondent, G064474
v. (Super. Ct. No. FSB21004604)
KEVIN ROBERT SCOTT, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of San Bernardino
County, Steve Malone, Judge. Affirmed.
Christopher William Stansell; Robert L. Hernandez, 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, Steve
Oetting and Maxine Hart, Deputy Attorneys General, for Plaintiff and
Respondent.
* * *
Defendant Kevin Robert Scott appeals the trial court’s decision
revoking his probation and sentencing him to three years, the upper term, on
his conviction for possessing child or youth pornography. (Pen. Code, §
311.11, subd. (a).)1 In this appeal, Scott contends he did not waive his right to
a jury trial on the aggravating circumstances used to increase his
punishment. We disagree, finding he explicitly waived his right to jury trial
on any issue relating to sentencing. Any other errors were forfeited by his
failure to object. Accordingly, we affirm the judgment.
STATEMENT OF FACTS
We draw the facts from our prior opinion in this matter, People v.
Scott (G064475, May 5, 2025) [nonpub. opn.] (Scott).
“A felony complaint was filed on December 28, 2021, in San
Bernardino County Superior Court alleging that on or about July 13, 2021,
Scott had possessed ‘child or youth pornography, in violation of Penal Code
section 311.11(a).’ At the time of his arrest, Scott was on active supervised
federal probation for a 2010 child pornography offense. [¶] Scott initially
pleaded not guilty to the charge, but later accepted a plea of no contest in
exchange for three years’ probation, credit for time served, and sex offender
registration under section 290.” (Scott, supra, G064475, fn. omitted.) His
written declaration pleading no contest, dated May 5, 2022, included the
following statement, apparently handwritten by Scott: “The waiver of the
jury trial right includes any matter related to sentencing on this case
Forethwith [sic].” Numerous issues arose afterward, and Scott was in and out
of federal custody.
1 Subsequent statutory references are to the Penal Code unless
otherwise indicated.
2
In November 2023, San Bernardino County filed a petition to
revoke Scott’s probation, citing a failure to comply with its terms, including a
term “not to frequent places where minors congregate and the prohibition on
unauthorized use or possession of a computer or internet device.” (Scott,
supra, G064475.)
“The trial court ordered Scott’s probation revoked as of November
15, 2023, and set a hearing. On April 5, 2024, the trial court found Scott was
in violation of his probation . . . . The court imposed the upper term of three
years in prison[,]” based on the fact that his conduct was “increasing in
seriousness.” Scott now appeals, arguing he did not waive his right to a trial
on the aggravating circumstances used to increase his punishment to the
upper term.
DISCUSSION
I.
THE COURT DID NOT ERR BY IMPOSING THE UPPER TERM
This appeal turns on the issue of whether Scott waived his right
to a jury trial on the aggravating circumstances used by the court to apply
the upper term.2
“Effective January 1, 2022, Penal Code section 1170, subdivision
(b) (hereafter section 1170(b)) was amended to prohibit imposition of an
upper term sentence unless aggravating circumstances justify that term and
the facts underlying any such circumstance, other than a prior conviction,
‘have been stipulated to by the defendant or have been found true beyond a
reasonable doubt at trial by the jury or by the judge in a court trial.’” (People
v. Lynch (2024) 16 Cal.5th 730, 742, fn. omitted.)
2 We disagree with the People that a certificate of probable cause was
required to bring this appeal.
3
On May 5, 2022, Scott entered his written plea bargain and jury
trial waiver. That document included an express handwritten statement that
“The waiver of the jury trial right includes any matter related to sentencing
on this case Forethwith [sic].” When queried in court, Scott was asked: “Did
you only sign and initial on these forms after discussing everything with your
attorney?” He answered: “Yes.” He was also asked if there was anything else
he wanted to go over with his attorney, to which Scott answered no. Counsel
concurred that he had sufficient opportunity to discuss all matters with his
client.
Scott complains that the amendments to section 1170(b) were
“only months-old when he entered the waiver.” It had been the law for almost
five full months and had been enacted prior to the date it went into effect.
There is simply no indication from the record that either Scott or his counsel
were unaware of the law or its import, and we will not imply facts not
supported by the record. (See People v. Barrett (2012) 54 Cal.4th 1081, 1105
[counsel presumed competent and informed as to applicable law].) Indeed, if
Scott and his counsel were not aware of the amendment, it is unclear why an
explicit waiver of rights “related to sentencing” was included at all. What
other right could that have been referring to? Scott offers us no answer.
Scott also complains that entering the three-year sentence on
April 5, 2024, almost two years after entry of the waiver, was not “Forethwith
[sic].” Somehow we are meant to read into that word that his waiver was
limited to rights immediately after entering the plea. But this interpretation
is inconsistent with the fact that Scott was, under the plea’s terms, being
sentenced to probation. There was no sentencing-related right to waive at
that time. If that was Scott’s intended meaning, it was apparently
surplusage. A more coherent reading of “Forethwith [sic]” is that Scott agreed
4
to immediate pronouncement of judgment without a probation referral. (See
People v. Preyer (1985) 164 Cal.App.3d 568, 576.)
Comparing this case to People v. Hall (2023) 97 Cal.App.5th
1084,3 in which the court upheld an upper term based on a waiver, Scott
claims the identical waiver is not present here. This is clear. But there is no
requirement of an identical waiver, just a valid one. As relevant, the waiver
here stated: “The waiver of the jury trial right includes any matter related to
sentencing on this case . . . .” “[A]ny matter” reasonably encompasses the
right to have a jury decide the facts on as to an upper term sentence.
Finally, Scott’s counsel failed to express surprise or disagreement
at the hearing when the court stated he had waived his right to a jury trial on
the aggravating factors. “[T]he totality of the circumstances approach permits
a reviewing court to take into account events that follow the entry of a jury
waiver to confirm matters such as the waiver’s character and scope.” That
includes the “defendant’s failure to express any surprise or confusion
regarding the judge’s assertion that the waiver applied to ‘all issues’
represents a relevant consideration in ascertaining the nature and extent of
his waiver.” (People v. Sivongxxay (2017) 3 Cal.5th 151, 167, fn. 2.) In sum,
we find no error in the trial court’s decision to impose the upper term.
To the extent any of Scott’s arguments rest on statutory claims
rather than constitutional ones, he has forfeited them by failing to object.4
(See, e.g., People v. Brannon-Thompson (2024) 104 Cal.App.5th 455, 464–
3 Additionally, this opinion is no longer citable. (People v. Hall (2025)
569 P.2d 392.)
4 This includes his contention that aggravating circumstances must be
pleaded in the information. (People v. Nguyen (2017) 18 Cal.App.5th 260,
271–272.)
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465.) This is not an “unauthorized sentence,” which falls into an exception to
the general rule requiring objections, because use of an aggravating factor
not proved to a jury is not a sentence that could not lawfully be imposed
under any circumstances. (People v. Achane (2023) 92 Cal.App.5th 1037, 1044
[“the upper term is not a sentence that ‘could not lawfully be imposed under
any circumstance in the particular case’”].) Once a defendant has notice of the
sentence and does not raise an objection, any claim on appeal is forfeited.
(People v. Houston (2012) 54 Cal.4th 1186, 1228.) Scott had notice in this case
because he was advised at the original sentencing hearing in May 2022 that
he faced a maximum of three years in prison. We find no error.
DISPOSITION
The judgment is affirmed.
MOORE, ACTING P. J.
WE CONCUR:
DELANEY, J.
SCOTT, J.
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