People v. Moreno CA5

Filed 5/25/21 P. v. Moreno CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT

THE PEOPLE,
F080976
Plaintiff and Respondent,
(Fresno Super. Ct. No. F13903993)
v.

LUIS ANTHONY MORENO, OPINION
Defendant and Appellant.

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff,
Judge.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant
and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-

* Before Poochigian, Acting P.J., Detjen, J. and Peña, J.
 INTRODUCTION
Appellant Luis Anthony Moreno was convicted of second degree murder for
driving while intoxicated, crossing the center line, crashing into another car, and killing
the passenger in that car. In 2019, this court affirmed the judgment on appeal. In 2020,
appellant filed a motion with the trial court and claimed his sentence should be modified
based on a newly enacted statute that was inapplicable to his case. The trial court denied
the motion and this court affirmed that ruling on appeal.
This case represents appellant’s third appeal and is based on additional motions
that were denied by trial court in 2020, where he again claimed his sentence should be
modified based on statutes that were inapplicable to his case. On appeal, his appellate
counsel has filed a brief that summarizes the facts with citations to the record, raises no
issues, and asks this court to independently review the record. (People v. Wende (1979)
25 Cal.3d 436.) Appellant has filed a letter brief raising one issue relevant to the motions
he filed, and four issues that are not cognizable. We again affirm.
FACTUAL AND PROCEDURAL BACKGROUND1
Appellant had five prior convictions for driving under the influence (DUI) and had
been admonished that he could be charged with murder if he killed someone as a result of
driving under the influence. On May 5, 2013, despite these warnings, he was driving
with a blood-alcohol level of 0.36 percent, four times the legal limit, and crossed over the
center line and crashed into a Toyota that had been lawfully traveling in the opposite
traffic lane. The driver of the Toyota, Yee Her, was seriously injured and his wife and
passenger, Blia Vang, was killed. When appellant was interviewed after the crash, he

1 We take judicial notice of the records and this court’s prior unpublished
appellate opinions in People v. Moreno, January 24, 2019, F074533, nonpublished
opinion; and People v. Moreno, April 8, 2020, F079796, nonpublished opinion.

2.
admitted that he knew driving under the influence was dangerous. (People v. Moreno,
supra, F079796 at pp. 2–3, 5.)
On September 14, 2014, after a jury trial, appellant was convicted as charged of
count 1, second degree murder of Ms. Vang (Pen. Code, §187;2 People v. Watson (1981)
30 Cal.3d 290, 298), count 2, driving under the influence causing injury to Mr. Her (Veh.
Code, § 23153, subd. (a)); and count 3, felony driving with a blood-alcohol level of 0.08
percent or more causing injury to Mr. Her (Veh. Code, § 23153, subd. (b)). People v.
Moreno, supra, F079796 at pp. 9–10.)
The jury found true the following allegations: as to count 1, that appellant
personally inflicted great bodily injury on Mrs. Vang, which made him ineligible for
probation (§ 1203.075); and as to counts 2 and 3, that appellant had a blood-alcohol
content of 0.15 percent or higher (Veh. Code, § 23578),3 he personally inflicted great
bodily injury on Mr. Her (§ 12022.7, subd. (a))4, and he had a prior DUI conviction in
2010 that occurred within 10 years of the charged offenses (Veh. Code, § 23560)5.

2 All further statutory citations are to the Penal Code unless otherwise indicated.
3 Vehicle Code section 23578 states in relevant part: “In addition to any other
provision of this code, if a person is convicted of a violation of Section 23152 or 23153,
the court shall consider a concentration of alcohol in the person’s blood of 0.15 percent or
more, by weight … as a special factor that may justify enhancing the penalties in
sentencing, in determining whether to grant probation, and, if probation is granted, in
determining additional or enhanced terms and conditions of probation.”
4 Section 12022.7, subdivision (a) provides for an enhancement of three years
5 Vehicle Code section 23560 states: “If a person is convicted of a violation of
Section 23153 and the offense occurred within 10 years of a separate violation of Section
23103, as specified in Section 23103.5, 23152, or 23153 that resulted in a conviction, that
person shall be punished by imprisonment in the state prison, or in a county jail for not
less than 120 days nor more than one year, and by a fine of not less than three hundred
ninety dollars ($390) nor more than five thousand dollars ($5,000). The person’s
privilege to operate a motor vehicle shall be revoked by the Department of Motor
Vehicles pursuant to paragraph (4) of subdivision (a) of Section 13352. The court shall

3.
 On October 13, 2016, the court conducted the sentencing hearing, and found
appellant was not eligible for probation, and “even if he were to be eligible for a grant of
probation, this court would find him not suitable for probation in light of the prior
criminal history of driving under the influence. The fact that he was on probation for
driving under the influence when he committed this act that caused the death, noting that
at the time of this particular act his blood alcohol level was an extremely high level and
that his actions of intentionally drinking and intentionally driving caused the death of one
person and the serious injury of another, and therefore, probation is denied.”
The court sentenced appellant to 15 years to life for count 1, second degree murder
of Mrs. Vang; plus, the consecutive upper term of three years for count 2, driving under
the influence causing injury to Mr. Her, and a consecutive three years for the great bodily
injury enhancement attached to count 2. The court stayed the term imposed for count 3
and the attached enhancement pursuant to section 654.
The first appeal
In his first appeal, appellant challenged the court’s decision to deny defense
counsel’s repeated requests to instruct the jury on gross vehicular manslaughter and
involuntary manslaughter as lesser included offenses of second degree murder, and
argued the court committed prejudicial error in denying his motion to give such
instructions.
On January 19, 2019, this court filed the opinion that affirmed the judgment, and
held the trial court properly denied appellant’s motion for the lesser included offense
instructions. We explained that statutory and decisional law provided that both gross
vehicular manslaughter while intoxicated, and involuntary manslaughter, were not lesser

require the person to surrender the driver’s license to the court in accordance with Section
13550.”

4.
included offenses of second degree murder based on driving while intoxicated under the
facts of this case. (People v. Moreno, supra, F074533 at p. 2.)
On April 10, 2019, the California Supreme Court denied appellant’s petition for
review. On April 11, 2019, the remittitur was issued.
The second appeal
On April 16, 2019, appellant filed, in pro. per., a preprinted petition with the trial
court and requested resentencing pursuant to section 1170.95. Appellant checked boxes
on the form to allege he was convicted of “1st or 2nd degree murder pursuant to the
felony murder rule or the natural and probable consequences doctrine” and “2d degree
murder under the natural and probable consequences doctrine or under the 2d degree
felony murder doctrine,” and his murder conviction had to be reversed because of the
amendments resulting from Senate Bill No. 1437 (2017–2018 Reg. Sess.). (People v.
Moreno, supra, F079796 at p. 12.)6

6 “In 2018, the Legislature enacted Senate Bill No. 1437 … to amend the natural
and probable consequences doctrine as it relates to murder. (Stats. 2018, ch. 1015, § 1,
subd. (f).) Senate Bill 1437 redefined ‘malice’ in section 188. Now, to be convicted of
murder, a principal must act with malice aforethought; malice can no longer ‘be imputed
to a person based solely on [their] participation in a crime.’ (§ 188, subd. (a)(3).)” (In re
R.G. (2019) 35 Cal.App.5th 141, 144.) “Senate Bill 1437 also adds … section 1170.95,
which allows those ‘convicted of felony murder or murder under a natural and probable
consequences theory … [to] file a petition with the court that sentenced the petitioner to
have the petitioner’s murder conviction vacated and to be resentenced on any remaining
counts .…’ [Citation.] [¶] An offender may file a petition under section 1170.95 where
all three of the following conditions are met: ‘(1) A complaint, information, or
indictment was filed against the petitioner that allowed the prosecution to proceed under
a theory of felony murder or murder under the natural and probable consequences
doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree murder
following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be
convicted for first degree or 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.’ [Citation.]” (People v. Martinez (2019) 31
Cal.App.5th 719, 723.) Appellant was not tried under a felony-murder theory in this
case.

5.
 On June 19, 2019, the trial court denied appellant’s petition for resentencing and
held appellant failed to make a prima facie showing that he fell within the provisions of
section 1170.95, because he “was more than a mere participant in the crime. The killing
resulted from an intentional act with express or implied malice.” (People v. Moreno,
supra, F079796 at pp. 12–13.)
On August 12, 2019, appellant filed an appeal from the trial court’s ruling. His
appellate counsel, who represented him in the first appeal, filed a Wende brief. Appellant
then filed two letter briefs and raised several issues, most of which were based on claims
of alleged prejudicial errors at trial. (People v. Moreno, supra, F079796 at pp. 12–13.)
As to the original argument in his petition for resentencing, we held the trial court
properly denied the petition and explained that appellant was not entitled to relief
pursuant to the amendments enacted by Senate Bill No. 1437 because he was not
convicted under a felony murder theory or as an aider or abettor. He was convicted of
second degree murder as a principal based on express or implied malice. He was the
“actual killer” who was driving while heavily intoxicated, swerved into the opposing
lane, slammed into an oncoming vehicle, and killed Mrs. Vang, after being admonished
after his most recent prior DUI conviction that he could be convicted of murder if he
killed someone while driving under the influence. (People v. Moreno, supra, F079796 at
p. 14.)
We also rejected appellant’s claims of prejudicial trial errors because they were
refuted by the record. Appellant asserted he tried to accept a plea bargain for a 10-year
term and his trial attorney failed to tell the prosecutor's office that he would accept it.
However, the record showed that prior to the start of appellant's jury trial, the court stated
in the presence of appellant and his attorney that the People had previously made an offer
for appellant to enter a plea to second degree murder, with the dismissal of all other
counts and enhancements alleged in the original information, and appellant rejected the
offer. (People v. Moreno, supra, F079796 at p. 13.)

6.
 Appellant also complained he was sentenced to a longer term than people
convicted of first degree murder. (People v. Moreno, supra, F079796 at p. 13.) His
argument was meritless because “[g]enerally, offenders who commit different crimes are
not similarly situated. [Citation.]” (People v. Doyle (2013) 220 Cal.App.4th 1251, 1266.)
Finally, appellant argued he was incapable of committing the “intentional act”
required for malice because his blood-alcohol level was 0.36 percent, and it was so high
that he was likely unconscious and lacked the ability to form intent. We noted that in his
first appeal, we explained that appellant received an express warning and advisement
after his fifth DUI conviction that he could be charged with murder if he continued to
drive while under the influence and someone was killed. After he was arrested in this
case, appellant said he understood it was dangerous to drive while intoxicated and knew
someone could get hurt. (People v. Moreno, supra, F079796 at pp. 13–14.)
THE CURRENT APPEAL
The current appeal is based on appellant’s filing of two additional motions with
the trial court, claiming he should be resentenced based on statutes that are not applicable
to his convictions.
Appellant’s first motion
On February 3, 2020, appellant filed a preprinted form entitled “Motion for
Modification of Sentence, Pursuant to Senate Bill No.’s 1393, 1618.” The form stated he
was entitled to modification of his sentence because the two new laws applied
retroactively to his case, his “five-year prior serious felony conviction enhancement must
be set aside” based on the amendments to section 667, subdivision (a) and section 1385,
and there was “a clear indication” the trial court would exercise its discretion to dismiss
the five-year enhancement. Appellant further argued that “SB 1618” and section 1170,
subdivision (d)(1) also applied and stated that “people which accepted plea bargains are
eligible for resentencing relief.”

7.
 Appellant’s “motion” was supported by his declaration that at his sentencing
hearing, the court added two consecutive three-year enhancements under section 667,
subdivision (a), and these enhancements must now be stricken under Senate Bill
No. 1393.
The court’s ruling
On February 14, 2020, the trial court filed an order denying appellant’s ex parte
motion for modification of his sentence. The court held that Senate Bill No. 1393 (2017–
2018 Reg. Sess.) amended section 667, subdivision (a), effective January 1, 2019, but
appellant was not subject to any additional punishment for a five-year prior serious
felony conviction enhancement, and his reliance on this law was misplaced.
The court clarified that appellant was also relying on Assembly Bill No. 1618
(2019–2020 Reg. Sess.), which added section 1018.6, effective January 1, 2020. The
court explained that section 1018.6 provided that plea agreements that require defendants
to waive ameliorative benefits of future legislation that may retroactively apply are void
as against public policy. The court held this law did not apply to appellant’s case since
he was convicted after a jury trial and not as the result of a plea agreement.
Appellant’s second motion
On February 21, 2020, appellant filed a handwritten letter with the trial court,
asking for relief “under S.B. 1393 [¶] Penal Code 1170(d) Cohort #5 [¶] VI. Sentencing
Discrepancy Referrals.” Appellant’s letter requested, “Count’s 2 & 3 be Dismissed Per,
Penal Code 12022.7 Enhancements.” His letter concluded: “Please disregard my
previous query.”
Appellant’s letter was accompanied by the identical preprinted motion that he
previously filed, supported by the same declaration where he asserted that he was
sentenced to two consecutive three-year enhancements pursuant to section 667,
subdivision (a), and the new law required dismissal of those enhancements and
resentencing.

8.
 Appellant’s letter was also accompanied by a preprinted form entitled: “VI.
Sentencing Discrepancy Referrals [¶] Cohort #5.” This preprinted form referred to the
“Gonzalez cohort,” and cited to People v. Gonzalez (2009) 178 Cal.App.4th 1325, 1332,
for the holding: “Trial court should not have imposed sentence enhancements under
section 12022.7, subdivision (a) and section 186.22, subdivision (b)(1)(C), because both
sentence enhancements were based on the great bodily injury the defendant caused while
committing the underlying offense.” Appellant included the abstracts of judgment and
minute orders for the sentencing hearing.
The court’s ruling
On February 26, 2020, the trial court denied appellant’s “successive ex-parte
motion for modification of sentence,” and noted his current motion asked the court to
disregard his previous motion. “To the extent [appellant] is asking the court to disregard
his previously submitted motion, it is too late as the Court has already denied the motion
on its merits.” The court further stated that it was denying his second motion for the
same reasons already stated in the previous denial.
On March 16, 2020, appellant filed a notice of appeal.
The instant appeal
Appellate counsel, who represented appellant in his first and second appeals, has
filed a Wende brief in this appeal. The brief also includes the declaration of appellate
counsel indicating that appellant was advised he could file his own brief with this court.
By letter on August 10, 2020, we invited appellant to submit additional briefing.
On August 27, 2020, appellant filed a letter brief that raises five issues purportedly
from the trial court’s order of February 26, 2020.
DISCUSSION
Appellant’s letter brief primarily raises alleged examples of prejudicial error that
occurred at trial and require reversal of his convictions. These issues are not cognizable

9.
in this appeal from the court’s order denying his February 2020 motions. Having set
forth the record, however, we will briefly review his meritless contentions.
First, appellant claims his trial attorney was prejudicially ineffective because of his
“total failure to investigate and prepare a defense” for his trial, and counsel’s alleged
“withdrawal” of jury instructions on “vehicular manslaughter.” In a related claim, he
asserts the prosecutor committed prejudicial misconduct and was “vindictive” because
she withdrew a jury instruction on “vehicular manslaughter.”
The entirety of the record refutes these assertions. Defense counsel ably
represented appellant, moved to exclude evidence, and repeatedly argued the court should
instruct the jury on lesser included offenses to the charge of second degree murder. The
prosecutor opposed the defense motion on the lesser offenses, and the court decided there
were no applicable lesser offenses. Appellant raised this issue in his first appeal, this
court extensively reviewed it, and found the trial court correctly denied the defense
motion for lesser included offenses. The California Supreme Court denied appellant’s
petition for review on the issue. Defense counsel never withdrew the instruction, the
prosecution did not raise a “vindictive” objection, and the trial court correctly ruled on
the issue.
Next, appellant claims the trial court committed “misconduct” and was
“vindictive” at the sentencing hearing when it found he was not eligible for probation,
and he was not suitable even if eligible. As set forth above, appellant was statutorily
ineligible for probation, and the court’s additional findings were based on specific factors
relevant to probation and were not “vindictive.”
In his letter brief, appellant argues the court “unlawfully imposed enhancements”
as in People v. Ahmed (2011) 53 Cal.4th 156. Ahmed held the trial court in that case
properly sentenced the defendant for assault with a firearm, plus enhancements for
personal use of a firearm and personal infliction of great bodily injury. (Id. at pp. 159–
163.) Appellant’s motion cited People v. Gonzalez, supra, 178 Cal.App.4th 1325, for the

10.
holding that the trial court improperly imposed both gang and great bodily injury
enhancements, which also were not applicable in this case. Appellant’s case did not
involve the offenses and enhancements addressed in Ahmed and Gonzalez.
To the extent appellant argues that the court improperly imposed three years for
count 2, driving under the influence causing injury of Mr. Her, plus three years for the
personal infliction of great bodily injury enhancement on Mr. Her, the court properly
imposed sentences for both count 2 and the enhancement. (People v. Sainz (1999) 74
Cal.App.4th 565, 568, 576; Hale v. Superior Court (2014) 225 Cal.App.4th 268, 276.)
“[T]he ‘bodily injury’ component of Vehicle Code section 23153 requires only proof of
‘ “harm or hurt to the body.” ’ [Citation.] … [¶] Section 12022.7 is a legislative attempt
to punish more severely those crimes that actually result in great bodily injury.
[Citation.] It applies except where serious bodily injury is already an element of the
substantive offense charged. [Citation.] … [¶] Since th[e] bodily injury was determined
to be great bodily injury, it exceeded the level of injury required under Vehicle Code
section 23153. In such a situation, it is appropriate to increase the punishment by way of
an enhancement. [Citation.]” (People v. Guzman (2000) 77 Cal.App.4th 761, 765.)
Finally, appellant raises the only issue arguably cognizable in this appeal – that his
appointed appellate counsel was prejudicially ineffective for failing to restate the claims
he made in his February 2020 motions to the trial court, that he was entitled to
modification of his sentence because of the enactments of Senate Bill No. 1393 and
Assembly Bill No. 1618.
As the trial court explained, however, appellant is not entitled to relief under these
statutes. Effective January 1, 2019, sections 667 and 1385 were amended by Senate Bill
No. 1393 to remove the prohibitions on striking or dismissing a prior serious felony
enhancement. (See Stats. 2018, ch. 1013, §§ 1–2.) The amended statutes apply
retroactively to all cases that are not yet final. (People v. Garcia (2018) 28 Cal.App.5th
961, 971–973; People v. Zamora (2019) 35 Cal.App.5th 200, 208.) In this case, the

11.
prosecution did not plead or prove a prior serious felony enhancement pursuant to section
667, subdivision (a), and appellant was not sentenced to an additional five-year term for
such an enhancement.
Appellant also claimed he was entitled to resentencing based on the enactment of
Assembly Bill No. 1618 (2019–2020 Reg. Session), which added section 1016.8. As of
January 1, 2020, “[a] provision of a plea bargain that requires a defendant to generally
waive future benefits of legislative enactments … that may retroactively apply after the
date of the plea is void as against public policy.” (§ 1016.8, subd. (b); People v. Barton
(2020) 52 Cal.App.5th 1145, 1149.) As noted by the trial court, appellant did not enter a
plea and was convicted after a jury trial. Thus, this statute is also inapplicable to his case.
The trial court properly denied appellant’s motions, and appellate counsel was not
prejudicially ineffective for declining to raise issues that were meritless and not
applicable to this appeal. (People v. Scheer (1998) 68 Cal.App.4th 1009, 1024.)
DISPOSITION
The judgment is affirmed.

12.