Filed 11/9/21 P. v. Moss CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A162295
v.
ALEXANDER LAVERT (Contra Costa County
MOSS, Super. Ct. No. 059501842)
Defendant and Appellant.
Appellant Alexander Lavert Moss (appellant) appeals the trial court’s
denial of his petition for resentencing under Penal Code section 1170.95.1
Appellant’s counsel has raised no issue on appeal and asks this court for an
independent review of the record to determine whether there are any
arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende
(1979) 25 Cal.3d 436.) We affirm.
BACKGROUND
A 1995 information charged appellant with murder (§ 187), with an
enhancement for personal use of a firearm (§ 12022.5, subd. (a)), and with
possession of a firearm by a felon (§ 12021, subd. (a)(1)). The information
also alleged three prior strike convictions and convictions for prior serious
felonies.
1 All undesignated statutory references are to the Penal Code.
1
The charges were based on a May 1994 nighttime shooting. The victim
was found facedown on the street with four bullet wounds, one in front and
three in back. A witness told police he heard three shots and then saw
appellant fire a fourth shot into the victim’s prone body. He testified to the
same at the preliminary hearing but repudiated his statement at trial. The
prosecution played a recording of the witness’s police statement.
In March 1996, a jury found appellant guilty of second degree murder
and possession of a firearm by a felon, and found true the personal use
enhancement. The trial court imposed a sentence of 54 years to life. This
court affirmed the judgment in January 1998.
In December 2019, appellant filed a section 1170.95 resentencing
petition. The trial court appointed counsel. On February 9, 2021, the court
denied appellant’s petition, concluding he had failed to state a prima facie
case of eligibility for resentencing.
DISCUSSION
As appellant’s counsel acknowledges, it is not clear appellate courts are
required to independently review the record in appeals from denials of
section 1170.95 petitions. The California Constitution does not “compel[] the
adoption or extension of Wende procedures (or any subset of them) for appeals
other than a criminal defendant’s first appeal of right because, beyond that
appeal, there is no right to the effective assistance of counsel.” (People v. Cole
(2020) 52 Cal.App.5th 1023, 1034.) On the other hand, an appellate court has
the discretion to implement “its own procedures in the interests of justice”
(People v. Flores (2020) 54 Cal.App.5th 266, 273), and the Flores court
concluded that “an appellate court can and should independently review the
record on appeal when an indigent defendant’s appointed counsel has filed a
2
Wende brief in a postjudgment appeal from a summary denial of a
section 1170.95 petition” (id. at p. 274).2
In any event, were we to exercise our discretion to independently
review the record we would conclude there are no legal issues that require
further briefing. The underlying facts do not show appellant was convicted of
felony murder or murder under a natural and probable consequences theory,
as required for relief under section 1170.95, subdivision (a).
Appellate counsel advised appellant of his right to file a supplemental
brief to bring to this court’s attention any issue he believes deserves review.
(See People v. Kelly (2006) 40 Cal.4th 106.) On September 26, 2021,
appellant filed a supplemental brief arguing not that the trial court erred in
denying him relief under section 1170.95, but that one of his prior strike
convictions should have been stricken under the reasoning of People v.
Vargas (2014) 59 Cal.4th 635, filed years after the judgment in appellant’s
case was final. We do not consider that argument because the issue is not
properly before us on appellant’s appeal from the order denying his
section 1170.95 petition. (In re J.F. (2019) 39 Cal.App.5th 70, 75 [jurisdiction
on appeal limited to judgment or order appealed from].)
DISPOSITION
The trial court’s judgment is affirmed.
2The California Supreme Court has granted review in a case to decide
“What procedures must appointed counsel and the Courts of Appeal follow
when counsel determines that an appeal from an order denying
postconviction relief lacks arguable merit?” (People v. Delgadillo (Nov. 18,
2020, B304441) [nonpub. opn.], review granted Feb. 17, 2021 (S266305).)
3
SIMONS, J.
We concur.
JACKSON, P. J.
NEEDHAM, J.
(A162295)
4