P. v. Moeum

Filed 2/4/21 P. v. Moeum CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,
Plaintiff and Respondent,
v.
SOPHORN J. MOEUM,
Defendant and Appellant.
B300707
(Los Angeles County
Super. Ct. No. TA111652)
APPEAL from orders of the Superior Court of Los Angeles
County. Laura R. Walton, Judge. Affirmed.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant Sophorn J. Moeum.
Xavier Becerra, Attorney 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.
* * * * * * * * * *

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In April 2010, defendants and appellants Chendareth Tony
Meas and Sophorn J. Moeum, along with six accomplices,
participated in a violent robbery at an auto parts store that
resulted in two fatalities. Defendants were found guilty of
multiple felonies, including murder and attempted murder. In
2014, we affirmed defendants’ convictions after modifying the
judgments to address several sentencing errors. (People v. Kol
(June 13, 2014, B243664 [nonpub. opn.].)
Following passage of Senate Bill 1437 (2017–2018
Reg. Sess.) in 2018 which, among other changes, resulted in the
enactment of Penal Code section 1170.95, defendants filed
petitions for resentencing. The trial court denied both petitions,
finding defendants ineligible for relief.
Defendants now appeal from the denial of those
resentencing petitions.
By separate order, we stayed defendant Meas’s appeal and
remanded to the superior court for reconsideration of his
resentencing petition. (People v. Gentile (2020) 10 Cal.5th 830,
858–859.) We decide here only the appeal of defendant Moeum.
Defendant Moeum contends the trial court committed
prejudicial error in summarily denying his petition. He argues
the true findings on the robbery-murder special-circumstance
findings from the 2012 trial no longer support his felony murder
convictions because they were made prior to our Supreme Court’s
decisions in People v. Banks (2015) 61 Cal.4th 788 and People v.
Clark (2016) 63 Cal.4th 522. He argues that Banks and Clark
substantially changed the law related to felony murder for
individuals like him who are not the actual killer and that he was
entitled to an evidentiary hearing on his resentencing petition to
demonstrate his conduct no longer supports the felony murder

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convictions. Moeum also argues that Penal Code section 1170.95
should be liberally construed to afford resentencing relief for his
attempted murder conviction, notwithstanding the statutory
language.
We conclude the trial court did not err in denying
defendant Moeum’s petition and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
“On the evening of April 5, 2010, a group of coworkers and
friends gathered at Custom City Auto Sales on Long Beach
Boulevard in Compton to watch a college basketball playoff game.
Around closing time, at least four males entered the shop and
demanded money from the employees. During the course of the
robbery, employees Vance Dean and Lejon Robins were fatally
shot. Mark Richardson was also shot, but survived. After taking
money and personal items from five of the victims, the robbers
fled the scene in a van. They were apprehended a short distance
away after a brief pursuit by numerous deputy sheriffs, including
a foot chase that ensued after the suspects abruptly pulled the
van over near an alley, got out and started running.” (People v.
Kol, supra, B243664.) Seven individuals were apprehended and
arrested: Defendants Moeum and Meas, along with Sorporn D.
Kol, John Dinkins, Devin Lewis, Paul Jordan, and Anthony
McLaurin. (Ibid.) “An eighth suspect was apprehended but died
from an apparent heart attack shortly after being taken into
custody.” (Ibid.)
Defendant Moeum was charged with two counts of first
degree murder (Pen. Code, § 187, subd. (a); counts 1 & 2),
one count of premeditated attempted murder (§§ 187, subd. (a),
664, subd. (a); count 5), five counts of second degree robbery
(§ 211; counts 6, 7, 8, 9 & 14), one count of being a felon in

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possession of a firearm (§ 12021, subd. (a)(1); count 12), and
one count of assault (§ 245, subd. (a)(2); count 15). (People v. Kol,
supra, B243664.)
Robbery-murder special-circumstance allegations were
alleged as to counts 1 and 2 (Pen. Code, § 190.2, subd. (a)(17)).
(People v. Kol, supra, B243664.) “It was also specially alleged as
to the murder counts, the attempted murder count, the robbery
counts and the assault count that a principal was armed with a
firearm during the commission of said offenses within the
meaning of section 12022, subdivision (a)(1).” (Ibid.) No personal
firearm use allegations were pled against defendant Moeum.
(Ibid.)
Defendant Moeum was found guilty of the first degree
murders of Mr. Dean and Mr. Robins, as well as the premeditated
attempted murder of Mr. Richardson. The robbery-murder
special-circumstance allegations were found true as were the
principal armed with a firearm allegations. Defendant was also
found guilty of assault, four counts of robbery and being a felon in
possession of a firearm. (People v. Kol, supra, B243664.)
The trial court imposed two consecutive life sentences
without the possibility of parole for the two murder counts, plus a
consecutive life term for the attempted murder count, and
consecutive determinate terms on the remaining counts and
enhancements. (People v. Kol, supra, B243664.)
In March 2019, defendant Moeum filed a petition for
resentencing pursuant to Penal Code section 1170.95 which
became effective January 1, 2019. Defendant used a form
petition and checked the boxes stating he was convicted of felony
murder but was not the actual killer, did not act with intent to
kill and was not a major participant who acted with reckless

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indifference to human life. Defendant requested resentencing on
both murder convictions (counts 1 & 2). Defendant was
appointed counsel, and the prosecution filed written opposition.
In supplemental papers, defendant requested resentencing on his
attempted murder conviction (count 5) in addition to the
two murder counts.
At the hearing on defendant Moeum’s petition, defendant
was present and represented by appointed counsel. After
entertaining argument, the court denied the petition, finding
defendant was not eligible for relief under the statutory scheme
“in light of the special circumstance finding[s].” The court also
concluded that attempted murder was not within the scope of
Penal Code section 1170.95 and denied the petition on that
ground as well.
This appeal followed.
DISCUSSION
1. Counts 1 and 2—First Degree Felony Murder
“Senate Bill 1437 was enacted to ‘amend the felony murder
rule and the natural and probable consequences doctrine, as it
relates to murder, to ensure that murder liability is not imposed
on a person who is not the actual killer, did not act with the
intent to kill, or was not a major participant in the underlying
felony who acted with reckless indifference to human life.’
(Stats. 2018, ch. 1015, § 1, subd. (f).)” (People v. Martinez (2019)
31 Cal.App.5th 719, 723.) Senate Bill 1437 added Penal Code
section 1170.95 to provide a procedural mechanism for offenders
previously convicted of felony murder or murder under a natural
and probable consequences theory to seek retroactive sentencing
relief. (Stats. 2018, ch. 1015, § 4.)

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With respect to felony murder, Penal Code section 189,
subdivision (e), as amended, now provides in relevant part that
“[a] participant in the perpetration or attempted perpetration of a
felony listed in subdivision (a) in which a death occurs is liable
for murder only if one of the following is proven: [¶] (1) The
person was the actual killer. [¶] (2) The person was not the
actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted
the actual killer in the commission of murder in the first degree.
[¶] (3) The person was a major participant in the underlying
felony and acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.” (Stats. 2018,
ch. 1015, § 3.)
Defendant Moeum was convicted of two counts of first
degree felony murder with robbery-murder special-circumstance
findings found true as to both counts. The jury instructions given
in 2012 regarding the robbery-murder special-circumstance
allegations, including CALCRIM No. 703, directed the jury that it
could find the allegations true as to a defendant who was not the
actual killer only if it found that the individual acted with intent
to kill or was a major participant in the crime who acted with
reckless indifference. Moeum cannot establish a basis for relief
because the special circumstance findings satisfy the language for
the new definition of felony murder in amended Penal Code
section 189, subdivision (e).
Nonetheless, defendant Moeum contends that because his
2012 conviction predated the decisions in Banks and Clark, he is
entitled to relief because the pre-Banks/Clark special
circumstance findings no longer support his convictions for felony
murder.

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The appellate courts are currently split over whether a
defendant with a pre-Banks/Clark special circumstance finding is
ineligible for relief under Penal Code section 1170.95. (Compare
People v. Gomez (2020) 52 Cal.App.5th 1, review granted Oct. 14,
2020, S264033 [concluding special circumstance finding precludes
resentencing relief as a matter of law]; People v. Galvan (2020)
52 Cal.App.5th 1134, review granted Oct. 14, 2020, S264284
[same]; People v. Murillo (2020) 54 Cal.App.5th 160, review
granted Nov. 18, 2020, S264978 [same]; People v. Allison (2020)
55 Cal.App.5th 449, review denied Dec. 23, 2020, S265450
[same]; People v. Jones (2020) 56 Cal.App.5th 474 [same] &
People v. Nunez (2020) 57 Cal.App.5th 78, review granted
Jan. 13, 2021, S265918 [same] with People v. Torres (2020)
46 Cal.App.5th 1168, review granted July 7, 2020, S262011
[reaching opposite conclusion]; People v. Law (2020)
48 Cal.App.5th 811, review granted July 8, 2020, S262490
[same]; People v. Smith (2020) 49 Cal.App.5th 85, review granted
July 22, 2020, S262835 [same] & People v. York (2020)
54 Cal.App.5th 250, review granted Nov. 18, 2020, S264954
[same].)
Pending guidance from our Supreme Court, we find the
Gomez/Galvan line of decisions more persuasive and adopt their
analyses. We therefore conclude defendant Moeum was ineligible
for resentencing relief pursuant to Penal Code section 1170.95
and the trial court did not err in so ruling.
If defendant Moeum wishes to challenge the sufficiency of
the evidence supporting the special circumstance findings, his
remedy is to pursue extraordinary relief by way of habeas corpus.
As the Supreme Court recently explained, Banks and Clark
merely clarified the law. (In re Scoggins (2020) 9 Cal.5th 667,

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674.) Where a decision does not announce a new rule of law but
merely “clarifies the kind of conduct proscribed by a statute, a
defendant whose conviction became final before that decision ‘is
entitled to post-conviction relief upon a showing that his [or her]
conduct was not prohibited by the statute’ as construed in the
decision. [Citation.] ‘In such circumstances, it is settled that
finality for purposes of appeal is no bar to relief, and that habeas
corpus or other appropriate extraordinary remedy will lie to
rectify the error.’ ” (Id. at pp. 673–674.)
2. Count 5—Attempted Murder
Penal Code section 1170.95, subdivision (a) provides, in
plain language, that only persons “convicted of felony murder or
murder under a natural and probable consequences theory” may
file a petition seeking resentencing. “When we interpret statutes,
giving effect to legislative purpose is the touchstone of our
mission.” (People v. Valencia (2017) 3 Cal.5th 347, 409.) “The
text of the statute is integral to our understanding of the
statute’s purpose.” (Ibid.) “We must take ‘the language . . . as it
was passed into law, and [we] must, if possible without doing
violence to the language and spirit of the law, interpret it so as to
harmonize and give effect to all its provisions.’ ” (Id. at pp. 409–
410.)
The appellate courts are divided on the question of whether
Senate Bill 1437 applies to the crime of attempted murder. Our
Supreme Court has granted review and is currently considering
the issue. (Compare People v. Lopez (2019) 38 Cal.App.5th 1087,
review granted Nov. 13, 2019, S258175; People v. Muñoz (2019)
39 Cal.App.5th 738, review granted Nov. 26, 2019, S258234;
People v. Dennis (2020) 47 Cal.App.5th 838, review granted
July 29, 2020, S262184 & People v. Love (2020) 55 Cal.App.5th

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273, review granted Dec. 16, 2020, S265445 with People v. Larios
(2019) 42 Cal.App.5th 956, review granted Feb. 26, 2020,
S259983; People v. Medrano (2019) 42 Cal.App.5th 1001, review
granted Mar. 11, 2020, S259948 & People v. Sanchez (2020)
46 Cal.App.5th 637, review granted June 10, 2020, S261768.)
Pending guidance from the Supreme Court, we believe
Lopez, Muñoz, Dennis and Love are the better reasoned and
adopt their analyses. The trial court did not err in concluding
defendant Moeum was ineligible for sentencing relief on count 5.
DISPOSITION
The trial court’s order denying defendant Sophorn J.
Moeum’s petition is affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
STRATTON, J.

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