Filed 9/14/20 P. v. Moore CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B301106
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA436825)
v.
SHAUN DOMINIC MOORE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Robert M. Martinez, Judge. Affirmed.
Ava R. Stralla, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael R. Johnson, Supervising
Deputy Attorney General, and David W. Williams, Deputy
Attorney General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Shaun Dominic Moore of attempted
murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a))1 and assault
with a deadly weapon (§ 245, subd. (a)(1)). The jury also found
true allegations that Moore personally used a deadly or
dangerous weapon and that he personally inflicted great bodily
injury. The trial court denied Moore’s motion under People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to
dismiss one or more of his prior serious or violent felony
convictions under the three strikes law and sentenced Moore to a
total prison term of 39 years to life, which included two five-year
terms for prior serious felony convictions under section 667,
subdivision (a)(1). Moore appealed, and we affirmed. (People v.
Moore (July 30, 2018, B282184) [nonpub. opn.].)
On December 28, 2018 Moore filed a petition for writ of
habeas corpus in the superior court asking the court to exercise
its discretion to strike the two five-year prior serious felony
enhancements under recently enacted Senate Bill No. 1393. The
court issued an order to show cause, held a hearing, and
ultimately denied the petition. Moore appealed again. We
affirm.
1 Statutory references are to the Penal Code.
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FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Moore of Attempted Murder and
Assault with a Deadly Weapon
In May 2015 Moore attacked Eugene Choi with a knife
after asking Choi if he was Korean. Moore stabbed Choi multiple
times, including in the neck, back, and armpit. Choi fell, bled
profusely from his neck, and felt numb below his chest. One of
the stab wounds injured Moore’s spinal cord and another caused
Choi’s lung to collapse and fill with blood. Emergency room
physicians treated Choi for the collapsed lung and gave him blood
transfusions. Doctors diagnosed Choi with Brown-Sequard
Syndrome, a condition that occurs after certain spinal cord
injuries and that causes weakness and other symptoms. (People
v. Moore, supra, B282184.)
A jury convicted Moore of attempted murder and assault
with a deadly weapon. The jury found true the allegations that
Moore personally used a deadly or dangerous weapon and that he
personally inflicted great bodily injury. (People v. Moore, supra,
B282184.)
B. The Trial Court Sentences Moore
Moore filed a motion to dismiss one or both of his admitted
prior serious or violent felony convictions under Romero, supra,
13 Cal.4th 497, arguing they were the result of his mental illness.
The trial court denied the motion. The court stated: “You have
two strikes, Mr. Moore. But the last one is the most serious, the
most dangerous and the one that could have resulted in the
taking of someone’s life. . . . The court does not find any
circumstances that would promote the interest of justice by the
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striking of your prior strikes, and the motion to dismiss is
denied.”
The trial court sentenced Moore to 25 years to life on the
attempted murder conviction, plus 10 years for two prior serious
felony convictions under section 667, subdivision (a)(1), three
years for the great bodily injury enhancement, and one year for
the use of a deadly or dangerous weapon, for a total prison term
of 39 years to life. The trial court imposed and stayed execution
of the sentence on Moore’s conviction for assault with a deadly
weapon under section 654. Moore appealed, and we affirmed.
(People v. Moore, supra, B282184.)
C. Moore Files a Petition for Writ of Habeas Corpus in
the Superior Court
On December 28, 2018 Moore filed a petition for writ of
habeas corpus in the superior court, arguing that Senate Bill
No. 1393, which would become effective a few days later on
January 1, 2019, would give the superior court discretion to
strike or dismiss the previously mandatory five-year
enhancements under section 667, subdivision (a)(1), for prior
serious felony convictions. (See Stats. 2018, ch. 1013, § 2; People
v. Zamora (2019) 35 Cal.App.5th 200, 208; People v. Garcia
(2018) 28 Cal.App.5th 961, 973.) Moore asked the court “to grant
this petition so that a superior court judge may consider whether
to exercise discretion to strike the five-year enhancements in this
case pursuant to [Senate Bill No.] 1393.”
On February 6, 2019 the superior court granted Moore’s
petition for writ of habeas corpus and his “request for
reconsideration of sentence pursuant to Senate Bill [No.] 1393.”
The court also transferred the case to the sentencing judge.
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On July 19, 2019, after several continuances, the superior
court held a hearing on Moore’s petition. The court reviewed,
among other things, a letter from Moore’s mother and Moore’s
“various certificates received while in custody.” The superior
court recognized it had the discretion to strike the enhancements
and stated: “Will the interest of justice be promoted by striking
one or more of the priors? The criteria for deciding whether or
not to strike a prior relates to factors dealing with the defendant,
factors related to the offense for which he is convicted, the
number of prior serious felony convictions, the remoteness of any
conviction, and, of course, the safety of society. Mental illness is
a handicap that comes with wide parameters in terms of the
degree.” The court ruled: “After review of the legal file and
argument from counsel, the court finds that the interest of justice
will not be promoted by striking one or more of the prior
allegations. [¶] The request to strike the two [section 667,
subdivision (a)(1)] allegations is denied. [¶] The previously
imposed sentence remains in full force and effect.”
DISCUSSION
The superior court did not abuse its discretion in declining
to strike the five-year enhancements under section 667,
subdivision (a)(1). (See People v. Carmony (2004) 33 Cal.4th 367,
374; People v. Pearson (2019) 38 Cal.App.5th 112, 116.) The
superior court weighed and considered the relevant factors,
including Moore’s mental health and the nature and
circumstances of his crime. (See Pearson, at p. 117; People v.
Carrasco (2008) 163 Cal.App.4th 978, 993-994; Cal. Rules of
Court, rule 4.428(b).) The court did not abuse its discretion in
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concluding Moore’s criminal history, the nature and
circumstances of the current crime, and Moore’s attempt at trial
to blame his victim did not justify striking either or both of
Moore’s prior serious felony convictions. Moore’s argument the
court should have stricken one or both of his prior serious felony
convictions because the court already punished him for “these
priors when the court used them for three strikes purposes” is
contrary to California law. (See People v. Acosta (2002) 29
Cal.4th 105, 139, fn. 4 [“the trial court may use the prior
convictions both under the Three Strikes law and as serious
felony enhancements”]; see, e.g., People v. Stamps (2020) 9
Cal.5th 685, 693 [“Had defendant been convicted of all counts and
enhancements, he would have been subject to the 25-years-to-life
provisions of the Three Strikes law . . . along with any applicable
fixed-term enhancements.”].)
DISPOSITION
The judgment is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J. FEUER, J.
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