People v. Moore CA2/8 ( 2021 )

Filed 10/22/21 P. v. Moore CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B306541
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA074720)
v.
KYLE MOORE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Charles Chung, Judge. Affirmed.
Jason M. Howell, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
____________________
Conforming to People v. Wende (1979) 25 Cal.3d 436(Wende), Kyle Moore’s counsel filed an opening brief containing a
statement of facts but raising no issues. At our request, counsel
augmented the record. Counsel then filed a second Wende brief
asking this court to review the record independently and to
determine whether any arguable issues exist on appeal. Moore
submitted two supplemental briefs, one in connection with each
of counsel’s Wende briefs. We have reviewed the supplemental
briefs and the entire record, including the augmented material.
No arguable issues exist. We affirm.
Statutory citations are to the Penal Code.
I
We recount the pertinent factual and procedural
background.
An amended information charged Moore with three counts
of second degree robbery and three counts of assault with a
firearm.
Court-appointed counsel represented Moore. On August
21, 2019, the trial court held a Marsden hearing. (People v.
Marsden (1970) 2 Cal.3d 118 (Marsden).) The judge found
Moore’s lawyer to be “an excellent lawyer” who “really has been
working very diligently” on Moore’s case.
Two of the charged robberies took place on September 20,
2015, at a Pizza Hut and a Chevron a few miles away. Each
victim, a shift manager at the Pizza Hut and a cashier at the
Chevron, testified at trial. Each testified a masked man pointed
a gun at them and demanded money. Each testified they were
scared. The Pizza Hut shift manager described the man as
wearing a white hoodie, jeans, and a mask, a description that
matched both surveillance video of a man running past the store
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next to the Pizza Hut and surveillance video taken inside the
Chevron during the robbery. Each victim described the gun as a
large blackish revolver, and the shift manager described a
wooden handle. In each robbery, the perpetrator placed an item
in the doorway to prevent the door from closing completely; at the
Pizza Hut, the robber used a rock.
The third robbery took place on January 12, 2016, at the
same Pizza Hut. A different shift manager was the victim. This
manager described a man wearing a grey hoodie, jeans, and a
mask who pointed a black semiautomatic gun at him and
demanded money. The manager testified he was scared. Again,
the robber propped the door open, this time with a piece of
rubber.
Police arrested Moore in September 2018 in connection
with their investigation of these robberies. During a recorded
interview with police, Moore admitted to committing fewer than
10 robberies, including robbing the Pizza Hut twice. When asked
about the gun he used, he described a large “cowboy” revolver he
said someone later took from him. Moore said he put items in the
door jams because he was “just smart” and doing so allowed him
to “go right out.” He said he had used a rock and a pinecone for
this purpose. The prosecutor played an audio recording of this
interview at trial.
Moore testified in his own defense. He claimed he had been
high on methamphetamine at the time of the interview and did
not know what he was saying. He denied committing the
robberies and said he had just been saying whatever he thought
the police wanted so they would let him go home. He claimed he
did not have knowledge of the crimes, but rather the police fed
him those details.
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The jury convicted Moore of all three counts of second
degree robbery (§ 211) and found true in connection with each an
allegation he personally used a firearm (§ 12022.53, subd. (b)).
The trial court sentenced Moore to 21 years and eight months.
The court calculated this sentence by taking the midterm of three
years on the first count and adding 10 years for the firearm
enhancement. For the second and third counts, the trial court
took one-third of the midterm and added one-third of the firearm
enhancement for a total of four years and four months for each
count. The trial court imposed restitution and court fees.
Moore appealed. We appointed counsel to represent him.
His counsel has filed two Wende briefs. Moore filed two
supplemental briefs.
II
Moore raises four arguments. None has merit.
A
Moore first asks if “the enhancements of my case . . . are up
for review under the new directive.” We interpret this as a
reference to Senate Bill No. 620 (2017–2018 Reg. Sess.), which
gave trial courts discretion to strike firearm enhancements under
section 12022.53. This “new” law went into effect on January 1,
2018. Moore thus already received the benefit of this law. (See
People v. Gutierrez (2009) 174 Cal.App.4th 515, 527 [where the
record is silent on a trial court’s exercise of discretion, we
presume the court was aware of and correctly applied the law in
the absence of record evidence to the contrary].)
Moore’s related assertion that, pursuant to the policies
implemented by Los Angeles County District Attorney Gascón,
the firearm charges would not be brought if he committed his
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crimes now, while arguably true, does not change the result in
his case.
B
In his second supplemental brief, Moore raises another
argument related to the personal use firearm enhancements.
Moore contends the trial court erred in not sua sponte instructing
the jury on the “lesser included enhancement” of being armed
with a firearm. Moore argues substantial evidence supported a
finding that he did not use the firearm but merely committed the
burglary while armed because: (1) the first Pizza Hut manager
testified she only “noticed” Moore holding a gun; (2) Moore denied
using a firearm; and (3) there was no evidence the gun existed,
was real, or was operable. This argument fails on legal and
factual grounds.
Moore relies on People v. Turner (1983) 145 Cal.App.3d 658to argue the trial court has a sua sponte duty to instruct on
“lesser included enhancements,” but the Supreme Court
expressly found to the contrary, overruling that portion of
Turner, in People v. Majors (1998) 18 Cal.4th 385, 410–411.
(Majors, at p. 411 [“a trial court’s sua sponte obligation to
instruct on lesser included offenses does not encompass an
obligation to instruct on ‘lesser included enhancements.’ ”].) We
are bound by Majors. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)
The record shows Moore used the firearm. The first Pizza
Hut manager also testified that Moore pointed the gun at her as
he demanded money and that she was scared. The other two
victims testified to the same.
The record does not disclose questions or testimony about
the authenticity of the gun. But each victim described a gun and
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testified that Moore pointed the gun at them while demanding
money, invoking fear. This evidence is sufficient to support a
jury finding under section 12022.53, subdivision (b). (People v.
Monjaras (2008) 164 Cal.App.4th 1432, 1437–1438 [when
defendant uses object that looks like a gun in committing
robbery, object’s appearance and defendant’s conduct may
provide sufficient evidence to support finding it was a firearm
under section 12022.53].)
C
Moore next repeats his contention at trial that his
statements to the police were unreliable because he was under
the influence of methamphetamine. The jury’s verdict
establishes they did not find Moore’s assertions credible. We
cannot reweigh the fact finder’s credibility findings on appeal. To
the extent Moore’s statements can be construed as an argument
that substantial evidence did not support the verdict, it fails.
Moore’s statements in the interview confirmed he robbed the
Pizza Hut twice, as well as his knowledge of the gun and method
used. Substantial evidence supported the verdict.
D
Finally, Moore points out there was a technical error on the
verdict forms completed by the jury. After the jury returned the
verdicts, the trial court noticed the forms incorrectly stated
section 12000.53, subdivision (b), instead of section 12022.53,
subdivision (b), with reference to the firearm allegations. The
trial court and counsel confirmed the court had provided the jury
with the instruction for the correct section, section 12022.53,
subdivision (b). The trial court also explained the issue to the
jurors and polled them individually to confirm this did not change
their verdict. There was no error.
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We have examined the entire record of the proceedings
consisting of the clerk’s transcript, reporter’s transcript, and
augmented reporter’s transcript, including the sealed reporter’s
transcript of a Marsden hearing, and are satisfied that appointed
appellate counsel fully complied with his responsibilities. There
are no arguable appellate issues.
DISPOSITION
We affirm the judgment.
WILEY, J.
We concur:
GRIMES, Acting P. J.
STRATTON, J.
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