People v. Moeun CA1/5

Filed 8/20/21 P. v. Moeun CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A160686
v.
SCOTT MOEUN, (Alameda County
Super. Ct. No. 171030C)
Defendant and Appellant.
Scott Moeun appeals from an order denying his petition for
resentencing under Penal Code section 1170.95.1 He contends the court erred
by summarily denying his petition without appointment of counsel. Because
Moeun was convicted of attempted murder and voluntary manslaughter, and
not murder, we conclude he was ineligible for relief as a matter of law and
the failure to appoint counsel was harmless error. We will affirm the order.
I. FACTS AND PROCEDURAL HISTORY
An amended information charged Moeun in February 2014 with
murder (§ 187, subd. (a)), three counts of attempted murder (§§ 187, subd. (a),
664), and shooting at an inhabited dwelling (§ 246). The information further
alleged as to each count that he personally discharged a firearm causing
great bodily injury and death, personally used a firearm, and inflicted great
1 All statutory references are to the Penal Code.
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bodily injury (§§ 12022.53, subds. (b), (c), (d) & (g); 12022.7).
A jury trial of Moeun and his four codefendants resulted in a mistrial in
August 2015, with the jury deadlocked as to Moeun and a codefendant (other
codefendants were convicted as charged).
A. Plea and Sentence
In April 2016, Moeun entered into a negotiated plea agreement by which
he entered a no contest plea to voluntary manslaughter (§ 192, subd. (a); count
one) and attempted murder (§§ 187, subd. (a), 664; count 3) and admitted
personal firearm use as to both counts (§ 12022.53, subd. (b)). It was agreed
that the remaining counts and enhancement allegations would be dismissed.
The probation department’s sentencing report described the underlying
incident as follows. Moeun was involved in a shootout in January 2012, when
he and four other members of his gang, the Asian Street Walkers, fired upon
a home where a birthday party was attended by members of the Oak Town
Crips. Recovered from the crime scene were 129 cartridges and six shotgun
shells that came from at least 11 guns. Approximately 89 of those casings
(fired from five different weapons) were found on the side of the street where
the five defendants positioned themselves. The voluntary manslaughter
victim (a fellow shooter) died as a result of a gunshot wound to the torso. The
attempted murder victim (a guest at the birthday party) was shot in the
chest. Moeun was identified from videos.
In July 2016, the court sentenced Moeun to the term of 26 years 8
months in state prison: as to count one, he received the upper term of 11
years for voluntary manslaughter plus 10 years for the enhancement under
section 12022.53, subdivision (b); as to count three, he received a consecutive
term of 2 years 4 months, plus 3 years 4 months for the firearm use
enhancement. All other charges and enhancements were dismissed.
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B. Petition for Resentencing
In April 2020, Moeun filed a petition for resentencing pursuant to
section 1170.95. Checking boxes on a preprinted form, he averred that an
information filed against him allowed the prosecution to proceed under a
theory of felony murder or murder under the natural and probable
consequences doctrine, he pled guilty or no contest to first or second degree
murder because he believed he could have been convicted of first or second
degree murder at trial pursuant to the felony murder rule or the natural and
probable consequences doctrine, and he could not now be convicted of first or
second degree murder because of changes made to sections 188 and 189. He
requested that counsel be appointed.
Without appointing counsel for Moeun, requesting briefing, or issuing
an order to show cause, the trial court denied the petition on May 26, 2020,
on the ground that Moeun “was not convicted of murder.”
This appeal followed.
II. DISCUSSION
A. Section 1170.95
Section 1170.95 offers potential sentencing relief for persons who were
“convicted of first degree or second degree murder” under a felony murder
theory or natural and probable consequences theory. (§ 1170.95, subd. (a).)
Such a person may seek resentencing by filing a petition in the sentencing
court that avers (1) an information was filed against the petitioner that
allowed the prosecution to proceed under a felony murder theory or under the
natural and probable consequences doctrine; (2) the petitioner was convicted
of first or second degree murder following a trial, or accepted a plea offer in
lieu of a trial at which the petitioner could be convicted of first degree or
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second degree murder; and (3) the petitioner could not be convicted of first or
second degree murder because of changes to section 188 or 189 made effective
January 1, 2019. (§ 1170.95, subd. (a)(1)–(3), (b)(1)(A).) The petition should
also identify the case number and year of conviction and state whether the
petitioner requests appointment of counsel. (§ 1170.95, subd. (b)(1)(B), (C).)
If a petition fails to include this information, the court may deny the petition
without prejudice. (§ 1170.95, subd. (b)(2); People v. Lewis (2021) 11 Cal.5th
952, 960 (Lewis).)
If the petition includes the information required by subdivision (b)(1) of
section 1170.95, the court must review the petition to “determine if the
petitioner has made a prima facie showing that the petitioner falls within the
provisions of this section.” (§ 1170.95, subd. (c).) To assist the court in this
regard, the prosecutor must file and serve a response to the petition, and the
petitioner may file and serve a reply. (§ 1170.95, subd. (c).) If the petitioner
requested counsel, the court must appoint counsel. (§ 1170.95, subd. (c);
Lewis, supra, 11 Cal.5th at p. 963.)
In deciding whether the petitioner has made a prima facie showing, the
court may consider the petitioner’s record of conviction. (Lewis, supra, 11
Cal.5th at p. 970–972.) The inquiry at this stage, however, is limited: the
court must take the petitioner’s factual allegations as true and make a
preliminary determination whether the petitioner would be entitled to relief
if those allegations are true. (Id. at p. 971.) The court should not engage in
factfinding that involves the weighing of evidence or the exercise of
discretion. (Id. at p. 972; see People v. Duchine (2021) 60 Cal.App.5th 798,
812–816 [trial court must accept the allegations in the petition as true unless
the record of conviction conclusively disproves those facts as a matter of
law].)
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If the petitioner makes the requisite prima facie showing, the trial
court must “issue an order to show cause.” (§ 1170.95, subd. (c); see Lewis,
supra, 11 Cal.5th at p. 962 [holding that § 1170.95, subd. (c) describes a
single prima facie inquiry, such that a “prima facie showing that the
petitioner falls within the provisions of” section 1170.95 is the same
requirement as a “prima facie showing that he or she is entitled to relief”].)
The court then holds a hearing “to determine whether to vacate the murder
conviction and to recall the sentence and resentence the petitioner on any
remaining counts in the same manner as if the petitioner had not . . .
previously been sentenced, provided that the new sentence, if any, is not
greater than the initial sentence.” (§ 1170.95, subd. (d)(1).) The prosecution
has the burden “to prove, beyond a reasonable doubt, that the petitioner is
ineligible for resentencing.” (§ 1170.95, subd. (d)(3).)
B. The Court Erred by Not Appointing Counsel
Moeun’s petition included the information required by section 1170.95,
subdivision (b)(1) and requested appointment of counsel. The trial court was
therefore obligated to appoint counsel, and the court’s failure to do so was
error. (§ 1170.95, subd. (c); Lewis, supra, 11 Cal.5th at p. 963.)
C. The Error Was Harmless
An error in failing to appoint counsel under section 1170.95 is harmless
if the petitioner is ineligible for relief under the statute as a matter of law.
(People v. Cooper (2020) 54 Cal.App.5th 106, 112.) “[A] petitioner ‘whose
petition is denied before an order to show cause issues has the burden of
showing “it is reasonably probable that if [he or she] had been afforded
assistance of counsel his [or her] petition would not have been summarily
denied without an evidentiary hearing.” ’ ” (Lewis, supra, 11 Cal.5th at
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p. 974.) Here, there is no such probability. Notwithstanding Moeun’s
allegation that he was convicted of first or second degree murder, his record
of conviction established that he was instead convicted of voluntary
manslaughter and attempted murder. Because section 1170.95 offers relief
only to those who were “convicted of first degree or second degree murder,” he
is ineligible for relief as a matter of law. (§ 1170.95, subd. (a)(2).)
Our appellate courts have consistently held that section 1170.95 does
not apply to voluntary manslaughter. (E.g., People v. Paige (2020) 51
Cal.App.5th 194, 201 [First District]; People v. Turner (2020) 45 Cal.App.5th
428, 435–437 [Fourth District]; People v. Sanchez (2020) 48 Cal.App.5th 914,
918–920 [Fourth District]; People v. Flores (2020) 44 Cal.App.5th 985,
992–997 [Fourth District]; People v. Cervantes (2020) 44 Cal.App.5th 884,
887–889 [Second District].)
Furthermore, although the issue is pending in our Supreme Court,
Moeun acknowledges that no appellate court has held that section 1170.95
applies to defendants with final convictions for attempted murder. (People v.
Harris (2021) 60 Cal.App.5th 557, 566 [Fourth District]; People v. Alaybue
(2020) 51 Cal.App.5th 207, 222–223 [Sixth District]; see People v. Lopez
(2019) 38 Cal.App.5th 1087, 1092–1093, 1103–1105 [Second District], review
granted Nov. 13, 2019, S258175; People v. Munoz (2019) 39 Cal.App.5th 738,
749–751 [Second District], review granted Nov. 26, 2019, S258234; People v.
Medrano (2019) 42 Cal.App.5th 1001, 1008, 1017–1019 [Fifth District],
review granted March 11, 2020, S259948; People v. Larios (2019) 42
Cal.App.5th 956, 970 [Fifth District], review granted Feb. 26, 2020, S259983;
People v. Love (2020) 55 Cal.App.5th 273, 278–279 [Second District], review
granted Dec. 16, 2020, S265445 [noting that some courts hold the natural and
probable consequences theory was not eliminated for attempted murder at
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all, some hold it was eliminated for attempted murder only prospectively, and
others hold it was eliminated for attempted murder except, as would apply
here, “retroactively as to final convictions”].)
Moeun contends the statute applies to him because, even though he
was not convicted of murder, he could have been. He seizes on language in
section 1170.95, subdivision (a)(2), which refers to a petitioner who is
convicted at trial of murder or who accepted “a plea offer in lieu of a trial at
which the petitioner could be convicted for first degree or second degree
murder.” He contends this language means a petitioner is eligible for relief if,
like him, the petitioner accepted a plea offer for voluntary manslaughter.
The argument has been repeatedly rejected by appellate courts. Simply
put, section 1170.95 offers relief only as to those who suffered a murder
conviction under certain theories; subdivision (a)(2) merely explains that the
conviction may have been obtained either by a jury verdict or by a plea.
(Paige, supra, 51 Cal.App.5th at p. 202; Sanchez, supra, 48 Cal.App.5th at
pp. 918–919; Turner, supra, 45 Cal.App.5th at p. 438.)
Moeun fails to establish reversible error.
III. DISPOSITION
The order is affirmed.
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NEEDHAM, J.
We concur.
SIMONS, Acting P. J.
BURNS, J.
People v. Moeun / A160686
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