People v. Moore CA2/8 ( 2024 )


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  • Filed 11/18/24 P. v. Moore CA2/8
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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    has not been certified for publication or ordered published for purposes of rule 8.1115.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
    SECOND APPELLATE DISTRICT
    DIVISION EIGHT
    THE PEOPLE,                                                      B327780
    Plaintiff and Respondent,                              (Los Angeles County
    Super. Ct. No. BA495627)
    v.
    MAURICE LAVELL MOORE,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Los
    Angeles County, Enrique Monguia, Judge. Conditionally
    reversed and remanded with directions.
    Lenore De Vita, under appointment by the Court of Appeal,
    for Defendant and Appellant.
    Rob Bonta, Attorney General, Lance E. Winters, Chief
    Assistant Attorney General, Susan Sullivan Pithey, Assistant
    Attorney General, Scott A. Taryle and Blythe J. Leszkay, Deputy
    Attorneys General, for Plaintiff and Respondent.
    _________________________
    The People charged defendant Maurice Lavell Moore with
    two counts of committing a lewd act on a friend’s 11-year-old
    daughter with an allegation that he personally inflicted bodily
    injury on her. Moore, who is Black, contended he was charged
    more heavily and offered a more severe plea agreement and
    negotiated sentence than similarly situated non-Black
    defendants who engaged in similar conduct. He moved for
    discovery under the California Racial Justice Act of 2020 (Stats.
    2020, ch. 317, § 1) (RJA). The trial court denied the motion.
    After the trial court denied his discovery motion, Moore
    pled no contest to committing a lewd act on a child under the age
    of 14 in violation of Penal Code1 section 288, subdivision (a), and
    committing an act described in subdivision (a) by means of fear or
    unlawful bodily injury in violation of section 288, subdivision (b).
    The latter charge was enhanced by section 12022.8 allegations
    [infliction of great bodily injury] which Moore admitted. Moore
    was sentenced to a term of 21 years: the high term of 10 years for
    violating subdivision (b) of section 288, enhanced by five years
    under section 12022.8, and the midterm of six years for violating
    subdivision (a) of section 288.
    This appeal is from the judgment of conviction. The trial
    court granted Moore’s request for a certificate of probable cause.
    (People v. Moore (2003) 
    105 Cal.App.4th 94
    , 98–100 [certificate of
    probable cause required for appeal of denial of discovery].)
    We conclude the trial court applied the wrong standard in
    denying the discovery motion. We conditionally reverse the
    judgment and remand with directions to the trial court to apply
    1     Undesignated statutory references are to the Penal Code.
    2
    the correct standard and to enter a new ruling on the motion. We
    express no opinion on the merits of the motion.
    I.    Factual Background2
    In December 2020, Moore was 32 years old. Moore is a
    trusted friend and occasional sexual partner of S.A., mother of
    T.H., the 11-year-old victim in this case. One night, Moore
    helped T.H. write a song. After Moore and T.H. finished their
    songwriting session, they laid in bed. Moore sucked T.H.’s
    breasts and rubbed her vagina. He removed their clothes,
    lubricated his penis, and had vaginal intercourse with T.H.
    Afterward, T.H. felt wet and noticed white liquid on her vagina.
    Moore left at about 3 a.m., telling T.H., “You have a good pussy.”
    One month later, in January 2021, Moore knocked on the
    door of S.A.’s apartment at midnight and asked T.H. if she
    wanted to go out somewhere. T.H. agreed and they snuck out
    while her mother slept. Moore took T.H. to a motel room he had
    previously rented and had vaginal intercourse with her.
    T.H. had not menstruated and took a home pregnancy test.
    The results were positive. T.H. told her mother she and Moore
    had sex, but then said she was kidding. S.A. took T.H. to the
    doctor who confirmed the pregnancy. In February, T.H. told her
    mother the truth about Moore, and they returned to the doctor.
    An ultrasound confirmed that T.H. was about eight weeks
    pregnant. On February 22, 2021, T.H. underwent an abortion to
    terminate the pregnancy.
    2    There was no preliminary hearing. The factual summary is
    drawn from the People’s brief, which takes the facts from the
    probation report.
    3
    Tissue samples from the abortion were compared to
    appellant’s DNA, confirming Moore was the father. Moore was
    arrested on May 19, 2021. He admitted he had gone to T.H.’s
    apartment one night when her mother was not at home and he
    had also taken T.H. to a motel without her mother’s knowledge,
    but denied having sex with her.
    II.    The People’s Offer of 21 Years
    Before the discovery motion was heard and decided, the
    People indicated they had offered Moore a prison term of 21 years
    in exchange for his plea of guilty or no contest.
    III.   Appellant’s Motion for Discovery
    The motion made clear from the outset that it was based on
    the RJA, specifically section 745. Invoking subdivisions (a)(3)
    and (a)(4) of section 745, Moore contended statistical evidence
    showed that “people of one race are disproportionately charged or
    convicted of a specific crime or enhancement” and that “people of
    one race receive longer or more severe sentences, including the
    death penalty or life without parole.” Discriminatory charging
    and sentencing were cited as the bases for Moore’s motion for
    discovery.
    Moore went on to cite McCleskey v. Kemp (1987) 
    481 U.S. 279
     for its holding that to prove prejudicial discrimination there
    must be specific evidence of racist motivation or intent in the
    prosecution of the case. According to Moore, this holding
    effectively insulated racial discrimination from judicial review in
    contrast to the RJA, which was enacted to facilitate judicial
    review of racial discrimination in the administration of justice.
    After stating statistics showing that Black Americans are
    incarcerated at a much higher rate than White Americans, Moore
    4
    provided multiple letters attesting to his good character together
    with the opinion of a psychologist that there was “no clinical
    evidence for Pedophilia or a pervasive inability to delay sexual
    gratification towards prepubescent girls on the part of Mr. Moore.
    Rather, the instant offense conduct appears situational in nature
    and not predatory.”
    Moore then detailed several cases involving non-Black
    defendants who committed sexual crimes with under-age
    children.
    • Robert Cain, a police officer charged with unlawful sexual
    intercourse with a person under 16, was sentenced to a
    two-year prison term.
    • Neil Kimball, a sheriff’s deputy, pleaded guilty to
    committing a lewd act with a child for a sentence of three
    years.
    • Miguel Schiappapietra, Jr., charged with a felony lewd act
    upon a child, was sentenced to three years in prison after
    pleading no contest.
    • Paul Gonzales molested 13- and 14-year-old girls and was
    sentenced to three years.
    • Cameron Thor, an acting coach, was sentenced to six years
    for lewd conduct with a 13-year-old female student.
    • Naason Garcia was sentenced to 16 years after he pleaded
    guilty to two counts of forcible oral copulation and one
    count of a lewd act on a 15 year old. Garcia was also
    involved in human trafficking and forcing children to
    perform oral sex.
    • Ms. Young, a female teacher accused of 10 counts of
    violating section 288, was sentenced to one year in the
    county jail and probation.
    5
    • Gina Murry, a teacher, was sentenced to two years for
    sexual assault on a 15-year-old student.
    • Gabriela Cortez, a teacher, had sex with two of her
    students and was sentenced to probation.
    The motion sought the following discovery:3
    • (1) the race and gender of those charged with violating
    section 288, subdivision (a) [lewd acts upon a child], and
    the race and gender of the child;
    • (2) the race and gender of those convicted of violating
    section 288, subdivision (a), who received probation;
    • (3) the race and gender of those charged with violating
    section 288, subdivision (a), who received a prison sentence
    and the length of the sentence;
    • (4) the race and gender of those charged with violating
    section 288, subdivision (i) [person convicted of section 288,
    subdivision (a), who personally inflicted bodily harm];
    • (5) the race and gender of those convicted of violating
    section 288, subdivision (i), and the race and gender of the
    child;
    • (6) the policies of the District Attorney’s office to safeguard
    against racial and gender discrimination in charging
    decisions; and
    • (7) the review process for Moore’s case to ensure that the
    charging decision met present standards.
    Citing legal authority, Moore contended discriminatory
    enforcement of the law may be a valid defense. He went on to
    cite the legal standard for discovery in selective prosecution
    3     The time period for discovery requests (1) through (5) was
    10 years.
    6
    cases, concluding that the standard was “plausible justification.”
    Moore closed by arguing that he had met the standard for
    discovery set out for selective prosecutions. The remedy he
    sought was a reduction of the charges.
    IV.   The Trial Court’s Ruling
    The trial court applied the wrong standard to the discovery
    motion. This is evident from a review of the trial court’s remarks
    before ruling on the motion. Those remarks are set forth in full
    below. The passages we conclude are indicative of the trial
    court’s thinking are numbered. Our comments on the remarks
    follow.
    “THE COURT: But I get the gist of the motion, and it is
    well written and so forth. But the gist of it is it’s a preprelim
    offer. [1] You’re asking for me to do something as to what’s really
    a sentencing issue and challenge the People’s discretion in what
    their offer is. The court normally doesn’t get involved in that
    unless they’re saying, well, there’s a [2] history of discrimination,
    and you want to go back on, you know, for what number of years
    to see what their offers have been in similar-situated cases.
    That’s all well and good.
    “I mean, you are here to do justice. I’m here to do justice,
    but all I have is the case before me. Unless you can prove or
    show that there’s something that I’ve done wrong or that the
    People have done wrong, we haven’t even gotten to there yet.
    [3] It’s here for preliminary hearing, and the key is discovery. At
    what point must I order discovery that’s going to lead to a
    potential defense or going to lead to something that would
    perhaps tip the scales in favor of the defense should I consider
    holding your client to answer on these charges?
    7
    “I don’t—I don’t see that here. Even under [Evidence Code
    section] 352 I would say, well, not only is it irrelevant, [4] it’s
    immaterial for the issue of probable cause. So you go back
    historically. I mean, come on, Mr. Grimes. I may be a little bit
    older than I look. Within my lifetime, they were stringing up
    your people and my people. We’ve gone through the sixties.
    We’ve gone through that.
    “Yeah. It’s an unfair system. There’s a lot more of our
    people incarcerated in state prisons, juxtaposed to back in my
    youth, a while back, there was skit by Richard Pryor, and he
    went and did a benefit in an Arizona State prison. And he has
    this whole skit about his experience there. He comes out and
    says, ‘Dang. Thank God for state prisons,’ considering some of
    the individuals he ran across. So, yeah. It can be unfair, and
    other times, unfortunately, it’s merited.
    “Now, I don’t know. I’m not passing judgment. It’s not my
    role to pass judgment here. [5] I’m just here to do the
    preliminary hearing to see if this case merits going on up to a
    real trial—trier of fact, but, as to your motion here today, I, you
    know, I just don’t see it. If I’m missing something, you can tell
    me, but [6] I just think it’s more of a discovery that has nothing
    to do and doesn’t bear on the issue at hand for preliminary
    hearing. And only—and only if he were to be convicted would it
    be something to be taken up at sentencing.
    “But in terms of challenging the People’s filing discretion
    and their discretion to consider or not consider certain factors in
    terms of the offer they choose to offer in this case preprelim or at
    the trial stage or after trial, what they will seek in terms of
    sentencing after the trial if it goes their way, you know, that’s—
    that’s a whole something else.
    8
    “It just isn’t something that I have before me at this time,
    and, again, I understand the urgency here and the pressure
    because their offer is a determinate sentence. If the victim, I
    take it, comes in and testifies, then the offer’s off the table. And
    then he’s potentially facing multiple life terms, but we got an
    eleven-year-old that’s impregnated. You know, as much as from
    your motion and, you know, she’s a bad person, she’s this, she’s
    that—she’s eleven years old, under the age of consent. So it’s not
    even a consensual issue. [7] Is he being treated unfairly as
    compared to other people with other charges? Well, as counsel
    pointed out, she had an abortion. That’s GBI, great
    bodily injury.
    “MR. GRIMES [defense counsel]: I recognize all of that.
    “THE COURT: So you know—and, again, [8] you can file
    whatever you want in terms of sentencing at some future date,
    but we’re not there yet.
    “So your motion is respectfully denied.” (Underscoring
    added.)
    The motion was very clearly a motion for discovery under
    section 745, subdivision (d). The trial court evidently thought so,
    as its remarks reflect. Yet, the trial court ignored section 745
    and case law interpreting that statute, as set out below.
    The first remark of the trial court suggests that the
    court thought that the sought-for discovery was limited to
    sentencing. The People’s offer of a 21-year term was on the
    table. The court may have been thinking about that. But
    the discovery motion was not limited to sentencing.
    Discovery was sought as to the entire case, including the
    charges. In fact, the remedy the motion sought was a
    reduction of the charges.
    9
    The court’s second remark shows that it was aware of the
    fact that it was dealing with the issue of discrimination.
    The third, fourth and fifth statements suggest that the
    court did not think that the discovery sought had any relevance
    to the preliminary hearing and that a decision could be reached
    in the preliminary hearing without any reference to the alleged
    discrimination that was the subject of the discovery motion.
    The sixth statement indicates that the court was aware
    that it was dealing with the issue of discrimination.
    Finally, the seventh and eighth remarks again suggest that
    the court thought that the discovery sought was limited to
    sentencing.
    We set forth below the standards that the trial court should
    apply in ruling on the motion for discovery.
    V.    The Discovery Provisions of the RJA
    The RJA provides statutory authority for defendants to
    challenge criminal proceedings on the basis of racial, ethnic or
    national origin discrimination. (People v. Wilson (2024)
    
    16 Cal.5th 874
    , 943.) Subdivision (d) of section 745 governs
    discovery under the RJA. Section 745, subdivision (d), provides:
    “A defendant may file a motion requesting disclosure to the
    defense of all evidence relevant to a potential violation of
    subdivision (a) in the possession or control of the state. A motion
    filed under this section shall describe the type of records or
    information the defendant seeks. Upon a showing of good cause,
    the court shall order the records to be released. Upon a showing
    of good cause, and in order to protect a privacy right or privilege,
    the court may permit the prosecution to redact information prior
    to disclosure or may subject disclosure to a protective order. If a
    statutory privilege or constitutional privacy right cannot be
    10
    adequately protected by redaction or a protective order, the court
    shall not order the release of the records.” (Ibid., italics added.)
    Young v. Superior Court (2022) 
    79 Cal.App.5th 138
     (Young)
    includes a scholarly and excellent discussion of discovery in
    criminal cases generally and of subdivision (d) of section 745
    specifically. Young notes that “discovery in criminal cases is
    governed by a statutory scheme that, with certain specified
    exceptions, is designed to be reciprocal and exclusive. (See
    §§ 1054, subd. (e) [‘no discovery shall occur in criminal cases
    except as provided by this chapter, other express statutory
    provisions, or as mandated by the Constitution of the United
    States’], 1054.5, subd. (a) [‘[n]o order requiring discovery shall be
    made in criminal cases except as provided in this chapter’].)”
    (Young, at p. 157.) Young goes on to hold that because section
    745, subdivision (d), is an express statutory provision authorizing
    “defense-side discovery,” it is one of the exceptions to the general
    provisions governing discovery in criminal cases. (Young, at
    p. 157.)
    Young notes that the court functions as a gatekeeper under
    subdivision (d) of section 745 in determining what constitutes
    “good cause” for discovery. (Young, supra, 79 Cal.App.5th at
    pp. 157–158.) Young provides a definition of good cause. “The
    parties and amici curiae agree that the closest analogy is the
    good cause standard governing disclosure of law enforcement
    personnel records—Pitchess[4] discovery. Similar to the disclosure
    regime under the [RJA], a defendant seeking Pitchess discovery
    must file a motion supported by affidavits showing ‘good cause’
    4     Pitchess v. Superior Court (1974) 
    11 Cal.3d 531
    , superseded
    by statute as stated in Long Beach Police Officers Assn v. City of
    Long Beach (2014) 
    59 Cal.4th 59
    , 68.
    11
    for it.” (Young, at p. 158, fn. omitted.) Good cause under Pitchess
    exists when the defendant shows both a materiality to the subject
    matter of the pending litigation and a reasonable belief that the
    agency has the type of information sought. (Young, at p. 158.)
    “Included in the Pitchess ‘good cause’ calculus is the
    requirement for a defendant to establish a ‘plausible factual
    foundation’ for officer misconduct.” (Young, supra,
    79 Cal.App.5th at p. 158.) The Young court then concludes that
    the existing jurisprudence on Pitchess motions should also apply
    to discovery under the RJA: “We agree that a discovery-triggering
    standard similar to the standard applicable to Pitchess discovery
    motions under Evidence Code section 1043, subdivision (b),
    applies to section 745, subdivision (d) motions under the [RJA].
    These two discovery provisions share a similar purpose, as each
    is designed to provide a defendant access to information that is
    uniquely in the possession of government officials. We can
    presume that the Legislature was aware how courts have
    interpreted the meaning of good cause for Pitchess discovery and
    intended a similar standard to apply under the [RJA]. Thus, we
    conclude that in order to establish good cause for discovery under
    the [RJA], a defendant is required only to advance a plausible
    factual foundation, based on specific facts, that a violation of the
    [RJA] ‘could or might have occurred’ in his case.” (Young, at
    p. 159, italics added.)
    The Young court went on to find that the “plausible
    justification” standard announced in the decision is in some
    respect even more relaxed than the relatively relaxed
    standard under Evidence Code section 1043,
    subdivision (b). (Young, supra, 79 Cal.App.5th at p. 159.)
    While a Pitchess motion must be supported by an affidavit
    12
    setting forth a reasonable belief that the requested
    discovery is material to the subject matter of the case, there
    is no comparable affidavit requirement for a discovery
    motion under section 745, subdivision (d). (Young, at
    p. 159.)
    VI.   The Trial Court’s Use of An Incorrect Standard
    We generally review a trial court’s ruling on
    discovery for abuse of discretion. We review the “factual
    underpinnings of a discretionary determination for
    substantial evidence [citation], but where such a
    determination rests on ‘incorrect legal premises,’ our review
    is de novo.” (Young, supra, 79 Cal.App.5th at p. 156.)
    Nevertheless, some courts have held that the de novo
    standard of review applies to the trial court’s legal
    conclusion that a defendant has failed to carry the burden
    of making a prima facie showing of good cause. (People v.
    Erwin (2021) 
    72 Cal.App.5th 90
    , 101; People v. Howard
    (2024) 
    104 Cal.App.5th 625
    .) Here, because the trial court
    made a legal error, we find error under both standards of
    review.
    We are of course aware of the long-standing rule that
    the reasons for the trial court’s decision will be ignored on
    appeal if the ruling was correct. (Davey v. Southern Pacific
    Co. (1897) 
    116 Cal. 325
    , 329; see generally 9 Witkin, Cal.
    Procedure (6th ed. 2024) Appeal, § 366.)
    The rule foreclosing review of the reasons for a trial
    court’s decision is subject to exceptions. One such
    exception is when the focus is on the means used to arrive
    at the decision. If the trial court mistakenly focuses on the
    wrong means to arrive at the decision, the rule does not
    13
    apply. (Clothesrigger, Inc. v. GTE Corp. (1987)
    
    191 Cal.App.3d 605
    , 611; 9 Witkin, Cal. Procedure, supra,
    Appeal, § 369.) In this case, in ruling on the discovery
    motion the focus must be on whether there is good cause for
    the discovery. (§ 745, subd. (d).) The trial judge completely
    ignored this consideration and for that reason, the ruling
    must be conditionally reversed.
    The trial court’s preoccupation with the preliminary
    hearing is regrettable. The idea that the preliminary
    hearing was somehow exempt from the motion is
    unsupportable. A defendant retains several substantial
    rights at the preliminary hearing. These include the right
    to confront and cross-examine prosecution witnesses, a
    right to the effective assistance of counsel, a right to
    present evidence to establish an affirmative defense, negate
    an element of a charged crime, or impeach the testimony of
    a prosecution witness or the statement of a declarant
    testified to by a prosecution witness, and a right to due
    process. (Mills v. Superior Court (1986) 
    42 Cal.3d 951
    , 959,
    abrogated by Proposition 115 on another point pertaining
    to admission of certain hearsay evidence.) Selective
    prosecution based on race was an affirmative defense
    available to Moore at this stage of the proceedings.
    (Murgia v. Municipal Court (1975) 
    15 Cal.3d 286
    , 300–301
    [“a criminal defendant may object, in the course of a
    criminal proceeding to the maintenance of the prosecution
    on the ground of deliberate invidious discrimination in the
    enforcement of the law”].) The prosecutor’s failure to
    disclose all substantial material evidence favorable to an
    accused before the preliminary hearing violates due
    14
    process. (Stanton v. Superior Court (1987) 
    193 Cal.App.3d 265
    , 269–270; Bridgeforth v. Superior Court (2013) 
    214 Cal.App.4th 1074
    , 1083–1084 [Proposition 115 did not limit
    or abrogate Stanton and similar cases pertaining to
    criminal discovery and preliminary hearings].) It follows
    that a discovery request under the RJA pertaining to the
    affirmative defense of selective prosecution can be properly
    made before the preliminary hearing as the discovery may
    implicate whether the preliminary hearing should even go
    forward on the pending charges. Indeed, section 745,
    subdivision (c), provides: “A motion made at trial shall be
    made as soon as practicable upon the defendant learning of
    the alleged violation.”
    VII. Initial Resolution by the Trial Court
    The People contend that unprotected sexual
    intercourse with an 11-year-old girl resulting in a
    pregnancy and an abortion was “sufficient to distinguish
    this case as particularly egregious and justified appellant’s
    charges and sentence based on the victim’s youth and
    substantial bodily harm.” That the victim sustained bodily
    harm, according to respondent, is sufficient to distinguish
    this case from those listed in the motion for discovery.
    These contentions, which are certainly worthy of
    consideration, need to be addressed in the first instance by
    the trial court. (People v. Coggan (1957) 
    155 Cal.App.2d 42
    ,
    44 [it is not the function of reviewing court to weigh the
    evidence].) That the Legislature has “prescribe[d] a
    comprehensive procedure for making and adjudicating a
    section 745 motion at the trial level” (People v. Lashon
    (2024) 
    98 Cal.App.5th 804
    , 813) is reason enough to require
    15
    the trial court in the first instance to adjudicate the motion
    under the correct standard. Unfortunately, the trial court
    did not address whether the victim and/or the defendant
    were similarly situated to the victims and defendants in the
    cases listed by the motion, whether any similarities are
    sufficient to provide a “plausible factual foundation” for the
    conclusion that a violation of the RJA based on charging
    decisions and sentencing offers could or might have
    occurred, or any other pertinent considerations arising out
    of the details of the specific examples.
    VIII. The Remedy of Conditional Reversal
    Moore pleaded no contest and was sentenced to a
    term of imprisonment of 21 years. Our decision setting
    aside the ruling on the discovery motion has resurrected
    the issue of selective prosecution as one requiring a
    decision. Given that the motion is now pending, the plea
    and judgment of conviction must be conditionally set aside.
    If ultimately no violation of section 745, subdivision (a), is
    found to have occurred, the plea and judgment may be
    reinstated by the trial court
    16
    DISPOSITION
    The judgment is conditionally reversed with
    directions to the trial court to rule on the discovery motion
    applying the correct standard. If no violation of section
    745, subdivision (a), is found to have occurred, the plea and
    judgment may be reinstated by the trial court. If a
    violation is found, the trial court shall conduct further
    proceedings as necessary.
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    STRATTON, P. J.
    We concur:
    GRIMES, J.
    VIRAMONTES, J.
    17
    

Document Info

Docket Number: B327780

Filed Date: 11/18/2024

Precedential Status: Non-Precedential

Modified Date: 11/19/2024