People v. Moore CA2/2 ( 2021 )

Filed 1/22/21 P. v. Moore CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B302427
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA090092)
v.
DAMON FITZGERAL MOORE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Alan K. Schneider, Judge. Affirmed in part and
remanded with directions.
David M. Thompson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Zee Rodriguez, Supervising Deputy
Attorney General, Wyatt E. Bloomfield and Paul S. Thies, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________________
Damon Fitzgeral Moore appeals the judgment entered
following a jury trial in which he was convicted of one count of
pandering by procuring. (Pen. Code,1 § 266i, subd. (a)(1).)
Appellant admitted he had served one prior prison term, and the
trial court sentenced him to four years in state prison for the
pandering conviction plus one year consecutive for the prior
prison term pursuant to former section 667.5, subdivision (b) (eff.
until Jan. 1, 2020).
Appellant contends and respondent agrees that the one-
year prior prison term enhancement must be stricken pursuant
to the amendments to section 667.5, subdivision (b) by Senate
Bill No. 136. We also agree, and remand the matter to the trial
court for resentencing to strike the one-year prior prison term
enhancement. Appellant further seeks, and respondent does not
oppose, appellate review of the sealed record of the hearing
pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531(Pitchess) to determine whether police personnel records were
improperly withheld from discovery. Having conducted our
review of the in camera proceedings, we find no abuse of
discretion.
FACTUAL BACKGROUND
On February 13, 2019, Los Angeles Police Officer Daisy
Vanegas was working uncover “posing as a streetwalking
prostitute” on the corner of Sepulveda Boulevard and Wyandotte.
Around 1:00 a.m. appellant pulled up in a car next to Officer
Vanegas and asked her what she was doing and if she was
working by herself. Officer Vanegas was wearing a recording
device, which she activated within a few seconds of the initial
1 Undesignated statutory references are to the Penal Code.
2
contact with appellant. Officer Vanegas and appellant spoke for
approximately 30 minutes, and the recording was played for the
jury. Based on her training and experience, Officer Vanegas
understood from appellant’s questions and remarks that he was
trying to recruit her to work as a prostitute for him.
At the end of the conversation, Officer Vanegas indicated
she would work for appellant, but she had to leave to meet her
“date.” Officer Vanegas walked away from appellant’s car with
the understanding that appellant would be waiting for her to
return when she was done. Appellant was arrested shortly
thereafter.
DISCUSSION
I. The One-year Prior Prison Term Enhancement
Must Be Stricken and the Matter Remanded for
Resentencing
Appellant’s sentence includes a consecutive one-year
enhancement pursuant to former section 667.5, subdivision (b)
for having served a prior prison term on a felony conviction.
However, effective January 1, 2020, Senate Bill No. 136 amended
section 667.5, subdivision (b) to apply only if the prior prison
term was served “for a sexually violent offense as defined in
subdivision (b) of Section 6600 of the Welfare and Institutions
Code.” (Pen. Code, § 667.5, subd. (b); see Sen. Bill No. 136 (2019–
2020 Reg. Sess.) § 1.) Appellant’s prior prison term enhancement
was based on a conviction for pandering under Penal Code
section 266i, subdivision (a)(2), which is not identified as a
sexually violent offense under Welfare and Institutions Code
section 6600, subdivision (b).
Absent evidence to the contrary, courts presume “the
Legislature intended the amended statute to apply to all
3
defendants whose judgments are not yet final on the statute’s
operative date.” (People v. Brown (2012) 54 Cal.4th 314, 323.)
Appellant’s conviction was not final when Senate Bill No. 136
took effect because his case was (and remains) on appeal, and the
time for filing a petition for writ of certiorari in the United States
Supreme Court has not yet expired. (People v. Vieira (2005) 35
Cal.4th 264, 306; People v. Nasalga (1996) 12 Cal.4th 784, 789,
fn. 5.) Accordingly, the amendment to section 667.5,
subdivision (b) applies retroactively to this case. (People v. Winn
(2020) 44 Cal.App.5th 859, 872–873 [Senate Bill No. 136 applies
to nonfinal judgments on appeal]; People v. Lopez (2019) 42
Cal.App.5th 337, 341 [same].)
The matter must therefore be remanded to the trial court to
strike the one-year prior prison term enhancement and to
resentence appellant accordingly. However, on remand, the trial
court is not limited to merely striking the prior prison term
enhancement, but is entitled to reconsider the full range of
sentencing options and impose a lawful sentence consistent with
the court’s original and presumably unchanged sentencing goals.
(People v. Hill (1986) 185 Cal.App.3d 831, 834; People v. Burbine
(2003) 106 Cal.App.4th 1250, 1258.)
II. The Pitchess Hearing
The trial court granted appellant’s Pitchess motion for the
personnel records of Officer Vanegas and conducted an in camera
hearing to determine which, if any of the records were
discoverable. At the conclusion of the hearing, the trial court
found that no materials were subject to discovery. Appellant has
requested that this court independently review the sealed records
of the Pitchess hearing to assess whether the trial court
improperly withheld any discoverable material from the defense.
4
(People v. Landry (2016) 2 Cal.5th 52, 73 (Landry); People v.
Hughes (2002) 27 Cal.4th 287, 330 (Hughes); People v. Mooc
(2001) 26 Cal.4th 1216, 1228.)
“A trial court’s ruling on a motion for access to law
enforcement personnel records is subject to review for abuse of
discretion.” (Hughes, supra, 27 Cal.4th at p. 330; Pitchess, supra,
11 Cal.3d at p. 535.) We have reviewed the sealed transcript of
the proceedings and conclude that the trial court did not abuse its
discretion in refusing discovery on the basis of its conclusion that
no materials were relevant to appellant’s claims of moral
turpitude, dishonesty, and racial animus against Officer
Vanegas. (Landry, supra, 2 Cal.5th at pp. 73–74; Hughes, at
p. 330.)
5
DISPOSITION
The matter is remanded to the trial court for resentencing
to strike the one-year prior prison term enhancement imposed
pursuant to former Penal Code section 667.5, subdivision (b). On
remand, the trial court may reconsider the entire sentence and
the full range of sentencing options available to it. In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
6