People v. Moore CA3

Filed 11/6/24 P. v. Moore CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C099483

Plaintiff and Respondent, (Super. Ct. No. 07F06960)

v.

SHAWN MOORE,

Defendant and Appellant.

Defendant Shawn Moore appeals the trial court’s order denying his Penal Code1 section 1172.6 petition, but he concedes he does not challenge the court’s decision “in

1 Further undesignated statutory references are to the Penal Code. Moore originally filed his petition under former section 1170.95. Effective June 30, 2022, the statute was renumbered to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) We refer to section 1172.6 throughout this opinion.

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substance.” Instead, Moore raises an issue unrelated to the denial of his petition — that his original sentence was unauthorized, thus requiring remand for a full resentencing hearing. Alternatively, he argues this court should remand and direct the trial court to consider exercising its discretion under Assembly Bill No. 600 (2023-2024 Reg. Sess.), which amended section 1172.1 to authorize a trial court to recall and resentence a defendant under current law. Moore’s unauthorized sentence claim, brought for the first time over a decade after he was sentenced in 2008 and not raised in his direct appeal of the judgment or in the petition proceeding below, is not subject to this court’s jurisdiction in an appeal from the denial of his section 1172.6 petition. Because the trial court properly denied his petition at the prima facie stage, as the record of conviction conclusively shows Moore was convicted of attempted murder on a still-valid theory, and we have no jurisdiction to consider his unauthorized sentence claim in this appeal, we shall affirm. BACKGROUND In 2007, several teenage boys demanded money from a man selling ice cream in a park; at least two hit the man in the head and one shot him in the stomach and the chest, requiring lifesaving surgery. (People v. Moore (Nov. 19, 2009, C060125) [nonpub. opn.] (Moore).)2 An eyewitness identified Moore as the gunman from a photographic lineup, and one of the boys, who was jointly charged with Moore and who later took a plea deal promising to testify truthfully in Moore’s trial, ultimately testified that Moore shot the ice cream vendor after first identifying another shooter.