People v. Moeun CA1/5

Filed 8/20/21 P. v. Moeun CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A160686 v. SCOTT MOEUN, (Alameda County Super. Ct. No. 171030C) Defendant and Appellant.

Scott Moeun appeals from an order denying his petition for resentencing under Penal Code section 1170.95.1 He contends the court erred by summarily denying his petition without appointment of counsel. Because Moeun was convicted of attempted murder and voluntary manslaughter, and not murder, we conclude he was ineligible for relief as a matter of law and the failure to appoint counsel was harmless error. We will affirm the order. I. FACTS AND PROCEDURAL HISTORY An amended information charged Moeun in February 2014 with murder (§ 187, subd. (a)), three counts of attempted murder (§§ 187, subd. (a), 664), and shooting at an inhabited dwelling (§ 246). The information further alleged as to each count that he personally discharged a firearm causing great bodily injury and death, personally used a firearm, and inflicted great

1 All statutory references are to the Penal Code.

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bodily injury (§§ 12022.53, subds. (b), (c), (d) & (g); 12022.7). A jury trial of Moeun and his four codefendants resulted in a mistrial in August 2015, with the jury deadlocked as to Moeun and a codefendant (other codefendants were convicted as charged). A. Plea and Sentence In April 2016, Moeun entered into a negotiated plea agreement by which he entered a no contest plea to voluntary manslaughter (§ 192, subd. (a); count one) and attempted murder (§§ 187, subd. (a), 664; count 3) and admitted personal firearm use as to both counts (§ 12022.53, subd. (b)). It was agreed that the remaining counts and enhancement allegations would be dismissed. The probation department’s sentencing report described the underlying incident as follows. Moeun was involved in a shootout in January 2012, when he and four other members of his gang, the Asian Street Walkers, fired upon a home where a birthday party was attended by members of the Oak Town Crips. Recovered from the crime scene were 129 cartridges and six shotgun shells that came from at least 11 guns. Approximately 89 of those casings (fired from five different weapons) were found on the side of the street where the five defendants positioned themselves. The voluntary manslaughter victim (a fellow shooter) died as a result of a gunshot wound to the torso. The attempted murder victim (a guest at the birthday party) was shot in the chest. Moeun was identified from videos. In July 2016, the court sentenced Moeun to the term of 26 years 8 months in state prison: as to count one, he received the upper term of 11 years for voluntary manslaughter plus 10 years for the enhancement under section 12022.53, subdivision (b); as to count three, he received a consecutive term of 2 years 4 months, plus 3 years 4 months for the firearm use enhancement. All other charges and enhancements were dismissed.