People v. Moeum CA2/8

Filed 1/3/23 P. v. Moeum CA2/8
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B300707
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA111652)
v.
SOPHORN J. MOEUM,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Laura R. Walton, Judge. Reversed and remanded with
directions.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General,
Lance E. Winters, Chief Assistant Attorney General, Susan
Sullivan Pithey, Assistant Attorney General, Charles S. Lee and
Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff
and Respondent.
**********
In April 2010, defendant and appellant Sophorn J. Moeum,
along with seven accomplices, participated in a violent robbery at
an auto parts store that resulted in two fatalities. A jury found
defendant guilty of two counts of first degree murder and one
count of attempted murder, in addition to five other felonies, and
found true the robbery-murder special-circumstance allegations.
Defendant’s accomplices were also found guilty. In 2014, we
affirmed defendant’s conviction after modifying the judgment to
address several sentencing errors. (People v. Kol (June 13, 2014,
B243664) [nonpub. opn.].)
Following passage of Senate Bill 1437 (2017–2018
Reg. Sess.) which, among other changes, resulted in the
enactment of Penal Code section 1170.95, defendant filed a
petition for resentencing with the trial court. During the
pendency of this appeal, former section 1170.95 was renumbered
as section 1172.6 with no change in the text. (Stats. 2022, ch. 58,
§ 10.) We refer to the statute only by its new designation for
clarity.
The trial court appointed defendant counsel and the parties
filed briefs. After a hearing, the court denied defendant’s petition,
reasoning he was not eligible for relief under the statutory
scheme on the murder counts in light of the special circumstance
findings and not eligible on the attempted murder count because
attempted murder was not included within the scope of Penal
Code section 1172.6.
We affirmed the denial of defendant’s resentencing petition.
(People v. Moeum (Feb. 4, 2021, B300707) [nonpub. opn.].) At
that time, there was a split in the Courts of Appeal as to whether
a jury’s true finding on a special circumstance allegation
pursuant to Penal Code section 190.2 precluded resentencing
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relief under section 1172.6. In affirming the trial court’s denial,
we said that pending further guidance from the Supreme Court,
we would follow those cases concluding a true finding did
preclude relief and that defendant’s remedy was to pursue relief
by way of habeas corpus. As to the attempted murder count, we
held the statutory language did not include convictions for
attempted murder.
Defendant sought and was granted review by the Supreme
Court.
In October 2021, the Legislature passed Senate Bill 775
(2021–2022 Reg. Sess.) which, among other things, amended the
language of Penal Code section 1172.6 to expressly include that
individuals convicted of attempted murder under a natural and
probable consequences theory may seek resentencing relief.
(Stats. 2021, ch. 551, § 2.)
In August 2022, the Supreme Court issued its decision in
People v. Strong (2022) 13 Cal.5th 698 (Strong). Thereafter, the
Supreme Court transferred this case to us with directions to
vacate our decision and reconsider the matter in light of Strong
and the passage of Senate Bill 775. In supplemental briefing to
this court, the parties agree that remand is warranted to allow
the trial court to conduct further proceedings in accordance with
Penal Code section 1172.6.
Having vacated our prior decision and reconsidered the
issues presented in light of Strong and in light of the passage of
Senate Bill 775, we reverse and remand with directions to the
superior court to conduct further proceedings in accordance with
Penal Code section 1172.6.
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DISCUSSION
The Supreme Court explained in Strong that its decisions
in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark
(2016) 63 Cal.4th 522, “both substantially clarified the law
governing findings under Penal Code section 190.2,
subdivision (d): Banks elucidated what it means to be a major
participant and, to a lesser extent, what it means to act with
reckless indifference to human life, while Clark further refined
the reckless indifference inquiry.” (Strong, supra, 13 Cal.5th at
pp. 706–707.) As a result, Strong concluded that “[f]indings
issued by a jury before Banks and Clark do not preclude a
defendant from making out a prima facie case for relief under
Senate Bill 1437. This is true even if the trial evidence would
have been sufficient to support the findings under Banks and
Clark.” (Strong, at p. 710.)
Here, the jury convicted defendant of first degree murder
and made its true findings on the robbery-murder special
circumstance allegations before our Supreme Court issued its
decisions in Banks and Clark. The People therefore concede that
remand is appropriate in light of the Supreme Court’s discussion
and holding in Strong. The People also concede that with the
passage of Senate Bill 775 during the pendency of this appeal,
remand is also appropriate on the attempted murder count.
We agree. We therefore reverse the trial court’s denial of
defendant’s resentencing petition and remand for further
proceedings pursuant to Penal Code section 1172.6,
subdivisions (c) and (d).
DISPOSITION
The trial court’s order denying defendant Sophorn J.
Moeum’s petition for resentencing is reversed and the case is
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remanded to the superior court. On remand, the superior court is
directed to conduct further proceedings pursuant to Penal Code
section 1172.6, subdivisions (c) and (d).
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
WILEY, J.
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