P. v. Moreno

Filed 4/22/04 P. v. Moreno CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JUAN MANUEL MORENO,
Defendant and Appellant.
G031437
(Super. Ct. No. 97NF0498)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, John J.
Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Stephen S. Buckley, under appointment by the Court of Appeal, for
Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Barry J. T. Carlton,
Larissa Karpovics Hendren, and Daniel Rogers, Deputy Attorneys General, for Plaintiff
and Respondent.

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In an unpublished opinion, we affirmed the convictions of Juan Manuel
Moreno and his six codefendants for attempted murder with enhancements for
committing the crime to benefit a street gang. (People v. DeLeon et al. (Jun. 28, 2001),
G024465, G024667, G024668, G024669, G024670, G02497 & G025818 (hereafter
DeLeon).)1 We agreed with Moreno’s contention that he had been improperly sentenced
as a third strike offender under the “Three Strikes” law (Pen. Code, § 667, subds (b)-(i)) 2
because one of his two prior juvenile adjudications did not qualify as a strike. We
remanded for resentencing of Moreno as a second strike offender. He appeals,
contending he was again improperly sentenced. We reject his arguments and affirm his
sentence.
I
FACTS AND PROCEDURE
The facts are detailed in our prior opinion (DeLeon, supra, at pp. 4-7),
which we incorporate by reference, and only briefly summarize here. Moreno, a La Jolla
gang member, and several of his fellow gang members crashed a party being held at the
victim’s, Ernesto Cortez’s house, but were allowed to stay. At some point, Ernesto
encountered Moreno and his fellow gang members smoking marijuana in the yard.
Ernesto asked them to refrain from using marijuana because his small children were
present. One of the gang members (probably Moreno) at first agreed to comply with
Ernesto’s request, but other gang members apparently considered it an unbearable
affront. Ernesto was set upon by eight of the gang members, including Moreno. They
savagely beat him and one of the gang members stabbed Ernesto in the back. Ernesto’s
gapping wound required 28 stitches.
1 On our own motion, we take judicial notice of our file and our unpublished
opinion in the prior appeal. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).)
2 All further statutory references are to the Penal Code, unless otherwise
indicated.

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The information charged Moreno with one count of attempted murder and
one count of assault with a deadly weapon and alleged the crimes were committed for the
benefit of a criminal street gang. Moreno was also charged with having one prior serious
felony conviction and two strike convictions arising from a juvenile adjudication in 1990
for assault with a deadly weapon by force likely to produce great bodily injury under
section 245, subdivision (a)(1) and robbery by force or fear under section 211.
A jury convicted Moreno of attempted murder and found the gang benefit
allegations to be true. In a bifurcated proceeding, the court found the prior serious felony
conviction and strike allegations true. At sentencing, the court denied Moreno’s motion
to strike one or more of his prior convictions. The court sentenced Moreno to the third
strike term of 25 years to life for attempted murder, plus a consecutive three-year term for
the gang benefit enhancement, and a consecutive five-year term for the prior serious
felony conviction.
In his first appeal, Moreno argued he was improperly sentenced under the
Three Strikes law because neither of his juvenile adjudications qualified as strikes under
section 667, subdivisions (d) and (e)(2), and section 1170.12, subdivisions (b) and (c)(2).
We agreed the assault adjudication could not be utilized as a strike conviction. (DeLeon,
supra, at pp. 43-44.) However, we rejected Moreno’s contention that the robbery
adjudication did not qualify. We remanded for resentencing instructing the trial court
“[it] should vacate its finding Moreno’s juvenile adjudication for assault with a deadly
weapon was a prior conviction for purposes of the Three Strikes law. It should sentence
Moreno as a second strike offender.” (DeLeon, supra, at p. 46, fn. 25.)
On remand, a different trial judge conducted the sentencing hearing. The
trial court denied Moreno’s renewed motion to strike the prior (i.e., the robbery
adjudication) and imposed the aggravated term of nine years for attempted murder,
doubled to 18 pursuant to the Three Strikes law. The court again imposed a consecutive
three-year term for the gang benefit enhancement and a consecutive five-year term for the

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prior serious felony conviction. Moreno’s revised sentence was for a total term of 26
years.
II
Moreno renews the argument made in his first appeal, i.e., his juvenile
adjudication for robbery does not qualify as a strike conviction under the Three Strikes
law. We conclude the law of the case doctrine precludes our reconsideration of his claim.
(See In re Rosenkrantz (2002) 29 Cal.4th 616, 668 [“‘law of the case’” doctrine generally
precludes multiple appellate review of same issue in same case].)
“‘[A] question presented and decided by an appellate court becomes
thereafter the law of the case and . . . the rule is binding on the appellate court if the case
again comes before it after having gone down to the lower court for further proceedings,
the facts on the second appeal being the same as on the first. The reason of the rule is
apparent. This court having declared the law, and the parties and the court below having
acted upon it, as a matter of policy, the law as thus declared and acted upon, whether
right or wrong, cannot afterward be changed. But for this salutary rule, litigation might
go on indefinitely[.]’ [Citation.]” (People v. Neely (1999) 70 Cal.App.4th 767, 782.)
Moreno raises the identical argument raised in his first appeal: the robbery
adjudication is not a strike because simple robbery was not listed in Welfare and
Institutions Code section 707, subdivision (b)(3) as it existed when the current offense
occurred. (The prior version of Welfare and Institutions Code section 707, subdivision
(b)(3) listed robbery when armed with a dangerous or deadly weapon, the current version
does not contain the weapon requirement.) We need not reconsider our prior conclusion.
The legal point was “‘necessary to [our] prior decision,’” the matter was presented and
decided by us, and application of the law of the case doctrine does not result in any
injustice. (People v. Shuey (1975) 13 Cal.3d 835, 842, disapproved on other grounds in
People v. Bennett (1998) 17 Cal.4th 373, 389-390, fn. 5.)

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Moreno persists that we should reconsider because in our prior opinion we
erroneously stated he had “conceded” a point he had not “conceded.” In our prior
opinion we explained the law: “Penal Code section 667, subdivision (d) allows a juvenile
adjudication to constitute a strike if: (1) the juvenile was at least 16 years old when the
crime was committed; (2) the crime is listed in Welfare and Institutions Code section
707, subdivision (b) or Penal Code section 667.5, subdivision (c) or Penal Code section
1192.7, subdivision (c); (3) the juvenile was found fit to be dealt with under the juvenile
court law; and (4) the juvenile was judged a ward of the court because he committed an
offense listed in Welfare and Institutions Code section 707, subdivision (b).” (DeLeon,
supra, at p. 42.) We noted, “Moreno concede[d] all of the requirements were met except
the second one[,]” and we then analyzed only the second element. We concluded that
although simple robbery was not listed in Welfare and Institutions Code section 707,
subdivision (b), because it was listed in section 1192.7, subdivision (c)(19) without
qualification it constituted a strike. (DeLeon, supra, at p. 43.)
Moreno now complains he never “conceded” the fourth requirement of
section 667, subdivision (d)(3) (i.e., he was adjudged a ward because he committed an
offense listed in Welfare and Institutions Code section 707, subdivision (b)) was met.
We question why Moreno never brought this to our attention via a rehearing petition
before our prior opinion became final. Furthermore, in reviewing his original opening
brief, Moreno certainly appeared to have conceded the fourth element was met. When
describing the four requirements of section 667, subdivision (d)(3), he injected next to the
fourth requirement that it was “true here” and he did not argue it was absent. Moreno has
not shown any injustice resulting from application of the law of the case doctrine.
In any event, Moreno’s position is untenable on its merits. As to his
primary argument relating to the second element of section 667, subdivision (d)(3), that
simple robbery does not qualify as a strike, we reject it for the same reasons articulated in
our original opinion.

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In supplemental briefing, Moreno for the first time challenges the fourth
element of section 667, subdivision (d)(3). That challenge is also meritless. For the
robbery adjudication to qualify as a strike, section 667, subdivision (d)(3)(D) requires
that in the same juvenile proceeding Moreno had been “adjudged a ward of the court
because of a Welfare and Institutions Code section 707(b) offense, whether or not that
offense is the same as the offense currently alleged as a strike.” (People v. Garcia (1999)
21 Cal.4th 1, 6, italics added.) Although simple robbery was not such an offense,
“[a]ssault by any means of force likely to produce great bodily injury” was and is. (Welf.
& Inst. Code, § 707, subd. (b)(14).) Accordingly, Moreno’s assault adjudication (assault
with a deadly weapon with force likely to produce great bodily injury) charged and found
true at the same time as the robbery count, satisfied the fourth requirement of section 667,
subdivision (d)(3).
Moreno argues that because we held the assault adjudication could not be
used as a strike, it has become “constitutionally dead” and is now unavailable to satisfy
the fourth element of section 667, subdivision (d)(3). Not surprisingly, Moreno cites no
authority in support of his position. Our conclusion that the assault count could not be
used as a strike was no more than that. It did not render the assault adjudication a nullity
for other purposes. As the Supreme Court noted in People v. Garcia, supra, 21 Cal.4th at
p. 8, the requirement of section 667, subdivision (d)(3)(D) is merely an “additional
condition . . . to the use of a qualifying juvenile offense as a strike.” That condition
relates to the nature of the juvenile, not the nature of prior offense being used as a strike.
(Id. at p. 7.)
Moreno also argues the assault adjudication might not qualify as a Welfare
and Institutions Code section 707, subdivision (b) offense because it is not clear Moreno
was the actual perpetrator of the assault as opposed to having merely aided and abetted
the assault. The contention is also meritless.

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The cases upon which Moreno relies are inapposite. People v. Rodriguez
(1998) 17 Cal.4th 253, and People v. Encinas (1998) 62 Cal.App.4th 489, both
considered whether the proof was adequate to establish prior assault convictions were
“serious felonies” under section 1192.7, subdivision (c), and thus constituted strikes
under the Three Strikes law. But section 1192.7, subdivision (c) contains specific
qualifications as to the types of assaults that can be considered serious felonies. In
Rodriguez, the defendant’s prior assault conviction constituted a serious felony under
section 1192.7, subdivision (c) only if the defendant had personally inflicted great bodily
injury or personally used a firearm or deadly weapon (§ 1192.7, subds. (c)(8) & (c)(23)),
but the prosecution proved only that the defendant had been convicted of assault.
(People v. Rodriguez, supra, 17 Cal.4th at pp. 261-262.) In Encinas, the defendant’s
conviction for assault on a peace officer constituted a serious felony only if it was
committed with a deadly weapon or instrument (§ 1192.7, subd. (c)(11)), but the
prosecution offered no proof as to whether a deadly weapon was used. (People v.
Encinas, supra, 62 Cal.App.4th at p. 492.) Here, “[a]ssault by any means of force likely
to produce great bodily injury” is a Welfare and Institutions Code section 707,
subdivision (b) offense. The statute requires only the fact of an adjudication for the
assault offense, it does not further require a showing the juvenile was the actual
perpetrator of the offense as opposed to having been an aider and abettor.
III
Moreno contends the court abused its discretion in imposing the aggravated
term of nine years for attempted murder because the mitigating circumstances
outweighed the aggravating. He also complains the court failed to state its reasons for
imposing the aggravated term of three years for the gang benefit enhancement. We reject
his claims.
“‘Sentencing courts have wide discretion in weighing aggravating and
mitigating factors [citations], and may balance them against each other in “qualitative as

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well as quantitative terms” [citation] . . . . We must affirm unless there is a clear showing
the sentence choice was arbitrary or irrational.’ [Citations.]” (People v. Avalos (1996)
47 Cal.App.4th 1569, 1582.) We cannot say the court abused its discretion in imposing
the aggravated term for attempted murder.
The sentencing court may impose the upper term if circumstances in
aggravation outweigh the circumstances in mitigation. (Cal. Rules of Court,
rule 4.420(b).) The sentencing court articulated several factors in aggravation including
facts related to the crime (Cal. Rules of Court, rule 4.421(a)), and facts related to the
defendant (Cal. Rules of Court, rule 4.421(b)). The sentencing court noted the crime
involved great violence and callousness; the victim was vulnerable in view of the fact that
he was set upon by eight gang members; a deadly weapon was used; there was great
monetary loss to the victim in the form of over $20,000 in medical bills; Moreno’s prior
convictions were getting increasingly serious; his performance on probation was
ineffective because he was sent to CYA for the prior juvenile adjudication; and was on
probation when the current offense occurred. Although the court originally stated it did
not believe there were any circumstances in mitigation, defense counsel pointed out
some: Moreno had initially indicated he would comply with the victim’s request that the
men not smoke marijuana; it did not appear he was the actual stabber; he was remorseful;
he had turned himself in to police; and he was improving himself while in prison.
Nonetheless, the trial court found the aggravating factors substantially outweighed the
mitigating, and imposed the upper term for attempted murder and for the gang
enhancement. It did not abuse its discretion.
Moreno suggests he could only be sentenced to the legislatively preferred
middle term because he was merely an aider and abettor. He states, “[A]n aider and
abettor can merely be an aider and abettor and could not do so in an aggravated or
mitigated manner.” He cites no authority for this proposition. While Moreno might not
have been the actual stabber, he did participate in the attack on Ernesto. In selecting the

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upper term, the court was entitled to consider the facts surrounding the offense and facts
about Moreno such as his past criminal record. We find no error here.
Moreno’s related complaint is that the sentencing court failed to articulate
reasons for imposing an aggravated term for the gang enhancement. Moreno’s failure to
object waives the argument on appeal. (People v. Scott (1994) 9 Cal.4th 331, 355.)
As an alternative, Moreno argues defense counsel’s failure to raise the
alleged sentencing error below constituted ineffective assistance of counsel. But we
cannot say that even had defense counsel objected, a different result would have been
obtained. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Pope
(1979) 23 Cal.3d 412, 426; People v. Alvarado (2001) 87 Cal.App.4th 178, 194.) The
original sentencing court had imposed the upper term. There was some question on the
part of this sentencing court as to whether our remand was for the limited purpose of
imposing a determinate term for attempted murder as a second (not third) strike offense,
or if the court was free to completely resentence Moreno anew. The court commented
that even if the remand “was for all purposes, I would not change the sentence. What I
would do is I would add some aggravating factors to the gang allegation. And you
noticed I had a whole bunch of them left that I could have used that I mentioned.” As
noted above, the sentencing court articulated a number of aggravating factors supporting
the upper term for attempted murder. It is clear the court would have utilized one or
more of them to support the upper term for the gang enhancement as well and the same
sentence would have resulted.
IV
Moreno argues the sentencing court abused its discretion by refusing to
strike his remaining prior so he could be sentenced outside the Three Strikes law. We
find no error.
A sentencing court has discretion to dismiss a strike allegation. (People v.
Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) To dismiss a strike the court

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must consider whether, considering the nature and circumstances of his or her present
criminal activity and prior strikes, the defendant may be deemed outside the spirit of the
Three Strikes law’s sentencing scheme, and therefore should be treated as though he or
she had not committed one or more of the serious or violent felonies alleged as strikes.
(People v. Williams (1998) 17 Cal.4th 148, 162-163.) We review the sentencing court’s
ruling “‘for abuse of discretion. This standard is deferential. [Citations.] But it is not
empty. Although variously phrased in various decisions [citation], it asks in substance
whether the ruling in question “falls outside the bounds of reason” under the applicable
law and the relevant facts [citations].’ [Citation.]” (People v. Garcia (1999) 20 Cal.4th
490, 503.)
Moreno argues the following factors compelled dismissal of his remaining
strike: (1) His robbery strike was an innocuous offense—it occurred 12 years before this
offense, when he was just 16 years old, and involved stealing shoes off someone’s feet;
(2) he was not the stabber in this case, but a mere aider and abettor; (3) he had originally
agreed to comply with Ernesto’s request that the men not smoke marijuana; (4) he was
remorseful and had turned himself in to police; and (5) his behavior had improved while
in prison.
Moreno complains the sentencing court merely deferred to the original
sentencing court’s denial of his request that one or more of his prior felony convictions
be struck. To the contrary, the record indicates this sentencing court independently
considered the request, but found no reason to rule differently. The court commented,
“[t]his isn’t the type of case where I would consider striking a strike. . . . [¶] . . .
[¶] . . . I am not inclined to strike it. It was a robbery. You can say, well, it was a
robbery of shoes, but the shoes were on somebody’s feet. You know, it is just not the
type of contact that is diminimus, [and] the felony in this case, actually very, very, very
brutal.”

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Moreno compares this case with People v. Bishop (1997) 56 Cal.App.4th
1245 (hereafter Bishop), in which the sentencing court’s decision to strike prior robbery
convictions was upheld. The situations are hardly analogous. The current offense in
Bishop was a nonviolent “wobbler” offense (petty theft with a prior) and the strikes were
almost 20 years old. (Id. at p. 1248.) Nothing in Bishop supports Moreno’s assertion that
as a matter of law his prior conviction should have been stricken.
Moreno also compares his case to that of the defendant in People v. Cluff
(2001) 87 Cal.App.4th 991 (hereafter Cluff), in which the appellate court found the trial
court had abused its discretion by refusing to strike a prior conviction. Again, there is
simply no comparison. In Cluff, the current offense was a technical violation of a new
statute requiring registered sex offenders to annually update their registrations. The
defendant had continuously lived at the address where he had initially registered and the
recently enacted annual updating requirement had been omitted from the only document
he was allowed to keep when he initially registered.
Unlike the nonviolent current offenses involved in Bishop or Cluff, this
prosecution involved an extremely violent and brutal gang attack on a party host for
having the temerity to ask Moreno and his fellow gang members to refrain from smoking
marijuana in front of small children. Eight men, including Moreno, jumped Ernesto, beat
him savagely, and stabbed him leaving a gapping wound down the length of his back.
Moreno’s prior robbery adjudication was not so innocent. He and other gang members
assaulted the victim, “poking” him with a screwdriver, while Moreno took the victim’s
shoes. Although originally sent to Joplin Youth Center, Moreno escaped and was
subsequently committed to the California Youth Authority (CYA). He had a subsequent
juvenile adjudication for stealing a car and was again committed to CYA. As an adult, he
had a conviction for possession of a dirk and other convictions as well. Moreno admitted
to the probation officer that he was armed with a knife when the attack on Ernesto
occurred, but claimed that because he was intoxicated he could not recall if he was the

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stabber. Given the severity of the current offense and Moreno’s criminal history, he was
not someone entitled to be “deemed outside the spirit of the Three Strikes law . . . .”
(People v. Williams, supra, 17 Cal.4th at pp. 162-163.)
V
Finally, Moreno argues his 26-year sentence under the Three Strikes law
constitutes cruel and unusual punishment under the federal and California Constitutions.
Moreno failed to raise the issue of cruel and unusual punishment below. Accordingly,
the argument is waived on appeal. (People v. Kelley (1997) 52 Cal.App.4th 568, 583;
People v. DeJesus (1995) 38 Cal.App.4th 1, 27; People v. Ross (1994) 28 Cal.App.4th
1151, 1157, fn. 8.) Nonetheless, to forestall the inevitable ineffective assistance of
counsel claim we consider and reject the merits of his claim.
Preliminarily, we disagree with Moreno’s characterization of his sentence.
He complains he has been excessively sentenced for merely having “stole[n] a pair of
shoes” as a juvenile. But that ignores that his sentence is for his current offense, a
particularly brutal attempted murder, and was enhanced because of his prior criminal
record.
As to Moreno’s Eighth Amendment claim, the United States Supreme
Court has upheld California’s Three Strikes law against a cruel and unusual punishment
argument for a defendant whose current offense was nonviolent and minor. (Ewing v.
California (2003) 538 U.S. 11 [theft of three golf clubs worth $399 apiece]; see also
Lockyer v. Andrade (2003) 538 U.S. 63). If those sentences were not cruel and unusual, a
fortiori, neither is the sentence imposed for the present extremely violent attempted
murder offense given Moreno’s criminal history.
As to Moreno’s claim that his sentence violates the California Constitution,
to assail any given sentence as disproportionate, an appellant bears the considerable
burden to show the sentence is so disproportionate that it “‘shocks the conscience and
offends fundamental notions of human dignity.’” (People v. Cartwright (1995)

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39 Cal.App.4th 1123, 1130, 1136; People v. Bestelmeyer (1985) 166 Cal.App.3d 520,
529-532.) In reviewing such a claim it is appropriate to consider the nature of the offense
and the offender, and the degree of danger to society. (In re Lynch (1972) 8 Cal.3d 410,
425.) Moreno stands currently convicted for his participation in a brutal attempted
murder. He is a member of a criminal street gang, and has a lengthy criminal history that
involves not only his prior robbery adjudication, but adjudications for assault with a
deadly weapon, burglary, car theft, and receiving stolen property. He was on probation
when the current offense was committed. Less severe sanctions apparently have not
made an impression upon him and the only way to protect society from his violent
behavior is by means of the sentence imposed.
The judgment is affirmed.
O’LEARY, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
ARONSON, J.

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