People v. Mooney CA2/3

Filed 7/15/21 P. v. Mooney CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B309443

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA006449) v.

CHARLES JAMES MOONEY,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Laura C. Ellison, Judge. Reversed and remanded with directions. Richard B. Lennon and Larry Pizarro, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent. ——————————

Charles James Mooney petitioned the trial court seeking resentencing under Penal Code1 section 1170.95, alleging that he was not the actual shooter, that his murder conviction was based on the felony-murder rule or murder under the natural and probable consequence doctrine, and that because of changes in the definition of murder promulgated by Senate Bill No. 1437, he could not now be convicted of first or second degree murder. The trial court summarily denied the petition, finding that Mooney would have been convicted of murder under the current law because he was a major participant in the robbery who acted with reckless indifference to human life during that offense. The People concur that the trial court erred, and the case should be remanded for the trial court to issue an order to show cause and to conduct an evidentiary hearing on Mooney’s petition. We agree. BACKGROUND The following facts are taken from Mooney’s and codefendant Kevin Christopher Waters’s direct appeal. (People v. Waters (Dec. 20, 1994, B062837) [nonpub. opn.].) This case involves an attempted armed robbery at a movie theater that resulted in the shooting death of an usher. On the evening of January 12, 1991, Mooney, Waters, and an unidentified person went to a 10:00 p.m. film at a movie theater in Torrance. Mooney and Waters were armed, carried walkie talkies, and had masks. Before the movie ended, the three men left the theater and walked towards the lobby.