People v. Moten CA2/7 ( 2021 )

Filed 8/25/21 P. v. Moten CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B310461
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A469656)
v.
JESSE MOTEN,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Joseph R. Porras, Judge. Affirmed.
Edward H. Schulman, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
________________
A jury convicted Jesse Moten in 1986 of the second degree
murder of Bernice McCutcheon (Pen. Code, § 187)1 with true
findings he had personally used a firearm in the commission of
the offense (§ 12022.5, subd. (a)) and had suffered two prior
serious felony convictions within the meaning of section 667,
subdivision (a), and served two prior prison terms for felonies
within the meaning of former section 667.5, subdivision (b). He
was sentenced to an aggregate indeterminate state prison term of
23 years to life.
We affirmed the murder conviction but remanded for a
limited retrial on the prior conviction enhancement allegations.
(People v. Moten (Jan. 20, 1988, B025483 [nonpub. opn.].) The
retrial resulted in a true finding on one of the prior serious felony
allegations. We affirmed the judgment. (People v. Moten
(June 13, 1990, B038823) [nonpub. opn.].)
In January 2021, after appointing counsel for Moten, the
superior court denied his petition for resentencing pursuant to
section 1170.95, finding Moten ineligible for relief based on
portions of the record of conviction that indicated Moten had been
convicted as McCutcheon’s actual killer.
No arguable issues have been identified following review of
the record by Moten’s appointed appellate counsel. We also have
identified no arguable issues after our own independent review of
the record and analysis of the contentions presented by Moten in
his supplemental brief. We affirm.
1 Statutory references are to this code.
2
FACTUAL AND PROCEDURAL BACKGROUND
1. Moten’s Conviction for Second Degree Murder
According to the testimony at Moten’s trial, McCutcheon’s
son, Wayne Eldridge, lived with her. Eldridge and McCutcheon’s
next door neighbor, Margaret Dirks, were not on good terms. On
the afternoon of May 18, 1996 several people were outside the
Dirks and McCutcheon homes when Eldridge and Dirks became
embroiled in an argument.
As the argument continued, Eldridge’s brother approached
him and said, “Man, they’re trying to kill you. They got guns.”
Eldridge looked up and saw Moten, who had been standing near
Dirks’s house, holding a handgun and pointing it at him.
Eldridge also testified another individual was holding a rifle or
shotgun.
McCutcheon arrived home and attempted to intercede.
Dirks and a few others began to walk away. Moten, however, ran
toward McCutcheon’s house and raised both hands together,
pointing away from his body. From inside McCutcheon’s house
Eldridge told Moten to put the gun down. A shot was fired into
the home, fatally wounding McCutcheon.
One witness testified she was present during the argument
and saw Moten point and fire a large handgun at the
McCutcheon home. Two other witnesses also saw Moten holding
a handgun just before and immediately after the shot was fired.
The court instructed the jury with CALJIC Nos. 8.10:
Murder—Defined; 8.11: “Malice Aforethought”—Defined; and
8.65: Attempt To Kill One Person—Another Killed. There was
no instruction on the felony-murder rule or the natural and
probable consequences doctrine.
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2. Moten’s Postjudgment Motion
On July 10, 2020 Moten, representing himself, filed a
petition for a writ of habeas corpus challenging his murder
conviction. Moten argued his trial counsel had been ineffective in
failing to investigate his assertion someone else had fired the gun
that killed McCutcheon. Moten also contended, based on the
allegations underlying his claim of ineffective assistance of
counsel, he was at most an aider and abettor to the murder of
McCutcheon and, as such, was entitled to be resentenced under
section 1170.95.
The superior court deemed Moten’s filing sufficient to
proceed under section 1170.95 and appointed counsel to represent
him, while denying the other parts of his habeas petition. The
district attorney filed an opposition to the section 1170.95
petition and attached as exhibits this court’s 1988 opinion
affirming the murder conviction, the probation officer’s report
prepared for the original sentencing hearing and the reporter’s
transcript of that sentencing hearing.
At a hearing on Moten’s section 1170.95 petition on
January 11, 2021, Moten’s counsel argued Moten’s allegation
there had been another shooter, together with his claim about the
inadequacy of his defense counsel, entitled Moten to relief under
Senate Bill No. 1437. The prosecutor responded there had only
been one shooter and the record of conviction established it was
Moten. After hearing from counsel, the superior court denied the
petition, stating the jury’s finding of personal use of a firearm
“would lead me to believe that [Moten] was convicted as the
actual killer.”
Moten filed a timely notice of appeal.
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DISCUSSION
1. Senate Bill No. 1437
Senate Bill No. 1437 (Stats. 2018, ch. 1015) substantially
modified the law relating to accomplice liability for murder,
eliminating the natural and probable consequences doctrine as a
basis for finding a defendant guilty of murder (People v. Gentile
(2020) 10 Cal.5th 830, 842-843 (Gentile)) and significantly
narrowing the felony-murder exception to the malice requirement
for murder. (§§ 188, subd. (a)(3), 189, subd. (e)(3); see People v.
Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) It also authorized,
through new section 1170.95, an individual convicted of felony
murder or murder based on the natural and probable
consequences doctrine to petition the sentencing court to vacate
the conviction and be resentenced on any remaining counts if he
or she could not have been convicted of murder because of Senate
Bill No. 1437’s changes to the definition of the crime. (Lewis, at
p. 957; Gentile, at p. 843.)
In determining whether a petitioner has carried the burden
of making a prima facie showing he or she falls within the
provisions of section 1170.95 and is entitled to relief, it is
appropriate to examine the record of conviction, “allowing the
court to distinguish petitions with potential merit from those that
are clearly meritless.” (Lewis, supra, 11 Cal.5th at p. 971.)
Appellate opinions “are generally considered to be part of the
record of conviction,” (id. at p. 972), as are the jury instructions
given at trial (see, e.g., People v. Soto (2020) 51 Cal.App.5th 1043,
1055, review granted Sept. 23, 2020, S263939).
2. Moten’s Appeal
In accord with the procedures described in People v. Cole
(2020) 52 Cal.App.5th 1023, review granted October 14, 2020,
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S264278, we appointed Edward H. Schulman to represent Moten
on appeal. At Schulman’s request we augmented the record on
appeal to include the record from Moten’s original trial and
appeal. That material established that Moten had been tried on
the theory he was the actual killer of McCutcheon, as the
superior court concluded from its review of a more limited portion
of the record of conviction. In particular, the jury was not
instructed on—and Moten was not convicted under—the felony-
murder rule or the natural and probable consequences doctrine.
After reviewing the record, as augmented, Moten’s counsel
filed a brief raising no issues. Appointed counsel advised Moten
on June 7, 2021 that he had 30 days to submit a brief or letter
raising any grounds of appeal, contentions or arguments he
wanted the court to consider. We thereafter granted Moten an
extension of time to file his supplemental letter brief.
On August 20, 2021 we received a seven-page typed
supplemental brief from Moten that asserts, in essence, the
superior court should have issued an order to show cause and
held an evidentiary hearing pursuant to section 1170.95,
subdivision (d), to consider the argument there had been a second
shooter and he was not McCutcheon’s actual killer. He also
questions the appointment of Schulman as his appellate counsel
in light of Moten’s prior complaints about the quality of
Schulman’s representation.
Because the record of conviction establishes Moten was not
convicted under the felony-murder rule or the natural and
probable consequences doctrine, he is ineligible for resentencing
relief under section 1170.95 as a matter of law. The superior
court properly denied his petition without issuing an order to
show cause. (See Lewis, supra, 11 Cal.5th at p. 971.)
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Because no cognizable legal issues have been raised by
Moten’s appellate counsel or by Moten or identified in our
independent review of the record, the order denying the
postjudgment motions is affirmed. (See People v. Cole, supra,
52 Cal.App.5th at pp. 1039-1040, review granted; see also People
v. Serrano (2012) 211 Cal.App.4th 496, 503; see generally People
v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979)
25 Cal.3d 436, 441-442.)
DISPOSITION
The postjudgment order is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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