People v. Moss CA1/3 ( 2023 )

Filed 6/23/23 P. v. Moss CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A165376
v.
CHRISTOPHER EDWARD MOSS, (Alameda County
Super. Ct. No. 174516)
Defendant and Appellant.
MEMORANDUM OPINION
While armed with a firearm, Christopher Edward Moss kidnapped,
robbed, burglarized, and sexually assaulted several victims over a three-day
period; a jury convicted him of 12 felonies and found true 11 firearm
enhancements (Pen. Code, §§ 12022.5, 12022.53).1 In 2015, the trial court
imposed a lengthy prison sentence: an indeterminate term of seven years to
life with the possibility of parole, plus a consecutive determinate term of 29
years. Firearm enhancements comprised 21 years, four months of the
We resolve this case by memorandum opinion pursuant to California
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Standards of Judicial Administration, section 8.1. We incorporate by
reference our unpublished opinion in Moss’s prior appeal, assume the reader
is familiar with the factual and procedural background, and recite only those
facts necessary to resolve the issues before us. (People v. Moss (Apr. 2, 2019,
A146665).) Undesignated statutory references are to the Penal Code.
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determinate term. Moss appealed. As relevant here, we conditionally
reversed the conviction and sentence, and we remanded for resentencing to
allow the court to exercise its discretion on whether to strike or dismiss the
firearm enhancements under amendments to sections 12022.5 and 12022.53.
Resentencing occurred in May 2022. Moss urged the trial court to
dismiss all but one firearm enhancement pursuant to Senate Bill No. 81
(2021–2022 Reg. Sess.; Stats. 2021, ch. 721, § 1) which provides guidance on
how trial courts are to exercise their discretion when deciding whether to
dismiss sentencing enhancements under section 1385. As amended, section
1385, subdivision (c) provides that, subject to certain exceptions, “a
sentencing court ‘shall dismiss’ [an] . . . enhancement ‘if it is in the
furtherance of justice to do so,’ ” and that in exercising its discretion, a court
must “ ‘afford great weight’ ” to specified mitigating circumstances proven by
the defendant unless it finds “ ‘dismissal of the enhancement would endanger
public safety.’ ” (People v. Mendoza (2023) 88 Cal.App.5th 287, 290.) One
such mitigating circumstance is that “[m]ultiple enhancements are alleged in
a single case. In this instance, all enhancements beyond a single
enhancement shall be dismissed.” (§ 1385, subd. (c)(2)(B).) At the
resentencing hearing, Moss expressed remorse for his actions, and he
described his rehabilitative efforts while incarcerated.
The prosecution offered two rationales for imposing multiple firearm
enhancements. First, it suggested the trial court could impose multiple
enhancements notwithstanding the language in section 1385, subdivision (c)
because Moss’s crimes were committed over a period of several days against
multiple victims. Second, the prosecution insisted that dismissing the
enhancements would endanger public safety because the offenses were
“serious,” the victims had “lasting trauma,” and Moss’s disciplinary record
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while incarcerated — which included several “serious rules violations” — did
not weigh in favor of a reduced sentence.
The trial court declined to strike the firearm enhancements under
section 1385, subdivision (c). It began by reciting the “absolutely horrendous”
facts underlying the offenses, noting that Moss beat, sexually assaulted, and
robbed strangers, and that he threatened to kill them while pointing a gun at
them. The court concluded his “horrific,” egregious, and “frightening”
behavior presented an “overwhelming threat to public safety.” After reciting
the aggravating and mitigating factors, the court concluded it would not be in
furtherance of justice to dismiss the enhancements; it also concluded
imposing a “gun use enhancement on each of the three discrete” offenses
(counts 4, 7, and 11) was appropriate because the offenses “were completely
separate from one another.”
The trial court imposed an indeterminate term of seven years to life in
prison with the possibility of parole, plus a determinate consecutive term of
22 years, four months. Firearm enhancements comprised 14 years, eight
months of the determinate sentence. (The court imposed and stayed the
firearm enhancements attached to counts 5, 8, 9, and 10.) Finally, the court
noted the remittitur did not authorize it to alter Moss’s sentence on the
“substantive crimes,” but that if the court “had . . . jurisdiction,” to do so, it
“would leave those portions of the sentence in place.”
Moss raises two principal claims on appeal. First, he contends the trial
court erred by imposing multiple firearm enhancements because section
1385, subdivision (c)(2)(B) “bars multiple enhancements ‘in a single case.’ ”
Several courts have rejected this argument — they have concluded the “shall
be dismissed” language in subdivision (c)(2)(B), when read together with the
statutory framework as a whole, does not mandate dismissal when “doing so
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would endanger public safety.” (People v. Mendoza, supra, 88 Cal.App.5th at
pp. 291, 294–297 & 296, fn. 4; People v. Anderson (2023) 88 Cal.App.5th 233,
238–241; People v. Lipscomb (2022) 87 Cal.App.5th 9, 15–21; People v. Walker
(2022) 86 Cal.App.5th 386, 391, 396–398; see also People v. Ortiz (2023)
87 Cal.App.5th 1087, 1093–1097.)2 Moss fails to cite any of these decisions —
all of which were decided before he filed his reply brief — and he does not
challenge the court’s conclusion that dismissing all but one firearm
enhancement would endanger public safety. We adopt the persuasive
reasoning from these cases; in so doing, we reject Moss’s argument. Having
reached this conclusion, we need not address his proffered definition of the
phrase “a single case” in subdivision (c)(2)(B).
Second, Moss argues he is entitled to resentencing under Assembly Bill
No. 518 (2021–2022 Reg. Sess.; Stats. 2021, ch. 441), which amended section
654 before the resentencing hearing to provide “the trial court with discretion
to impose and execute the sentence of either term, which could result in the
trial court imposing and executing the shorter sentence rather than the
longer sentence.” (People v. Mani (2022) 74 Cal.App.5th 343, 379.) According
to Moss, the “court did not appear to consider its new discretion” at
resentencing because no one mentioned the amended statute before or during
the hearing, and the court imposed an indeterminate term of seven years to
life with the possibility of parole on count 1 — kidnapping to commit rape or
robbery — and stayed shorter determinate terms on counts 2 and 3 —
burglary and sexual battery — arising of the same incident. The Attorney
General agrees remand for resentencing is appropriate so the court can
2The California Supreme Court granted review in People v. Anderson,
review granted Apr. 19, 2023, S278786; People v. Ortiz, review granted Apr.
12, 2023, S278894; and People v. Walker, review granted Mar. 22, 2023,
S278309.
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consider whether to stay count 1. We decline to accept the concession.
(People v. Bocanegra (2023) 90 Cal.App.5th 1236, 1255, fn. 7.)
Absent contrary evidence, we presume the trial court knows — and
follows — the law. (People v. Ramirez (2021) 10 Cal.5th 983, 1042.) Here,
the amendment to section 654 took effect four months before the resentencing
hearing. Thus, we presume the court made its sentencing decisions with
full knowledge of the amendments to the statute. (People v. Frazier (2020)
55 Cal.App.5th 858, 868–869.) But even if we assume otherwise, remand is
not required because the court’s comments clearly indicate it would have
imposed the same sentence had counsel explicitly mentioned Assembly Bill
No. 518. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [resentencing not
required if court would have imposed same sentence had it been aware of its
discretion].) At resentencing, the court described Moss’s crimes as “horrific”
and “absolutely horrendous.” It also declined to strike the firearm
enhancements pursuant to section 1385, subdivision (c) and stated it would
leave the remaining “portions of the sentence in place.” Under these
circumstances, there is no realistic possibility the court would have exercised
its discretion under section 654 to stay the indeterminate sentence on
count 1. Accordingly, remanding for a second resentencing hearing would
waste precious judicial resources.
DISPOSITION
The judgment is modified to strike the unpaid balance of the $250
probation investigation fee imposed under former section 1203.1. (See
§ 1465.9.) The trial court is directed to amend the abstract of judgment to
reflect this modification and to send a copy of the amended abstract to the
Department of Corrections and Rehabilitation.
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_________________________
Rodríguez, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Petrou, J.
A165376
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