People v. Moss CA1/5

Filed 11/9/21 P. v. Moss CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A162295 v. ALEXANDER LAVERT (Contra Costa County MOSS, Super. Ct. No. 059501842) Defendant and Appellant.

Appellant Alexander Lavert Moss (appellant) appeals the trial court’s denial of his petition for resentencing under Penal Code section 1170.95.1 Appellant’s counsel has raised no issue on appeal and asks this court for an independent review of the record to determine whether there are any arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) We affirm. BACKGROUND A 1995 information charged appellant with murder (§ 187), with an enhancement for personal use of a firearm (§ 12022.5, subd. (a)), and with possession of a firearm by a felon (§ 12021, subd. (a)(1)). The information also alleged three prior strike convictions and convictions for prior serious felonies.

1 All undesignated statutory references are to the Penal Code.

1

The charges were based on a May 1994 nighttime shooting. The victim was found facedown on the street with four bullet wounds, one in front and three in back. A witness told police he heard three shots and then saw appellant fire a fourth shot into the victim’s prone body. He testified to the same at the preliminary hearing but repudiated his statement at trial. The prosecution played a recording of the witness’s police statement. In March 1996, a jury found appellant guilty of second degree murder and possession of a firearm by a felon, and found true the personal use enhancement. The trial court imposed a sentence of 54 years to life. This court affirmed the judgment in January 1998. In December 2019, appellant filed a section 1170.95 resentencing petition. The trial court appointed counsel. On February 9, 2021, the court denied appellant’s petition, concluding he had failed to state a prima facie case of eligibility for resentencing. DISCUSSION As appellant’s counsel acknowledges, it is not clear appellate courts are required to independently review the record in appeals from denials of section 1170.95 petitions. The California Constitution does not “compel[] the adoption or extension of Wende procedures (or any subset of them) for appeals other than a criminal defendant’s first appeal of right because, beyond that appeal, there is no right to the effective assistance of counsel.” (People v. Cole (2020) 52 Cal.App.5th 1023, 1034.) On the other hand, an appellate court has the discretion to implement “its own procedures in the interests of justice” (People v. Flores (2020) 54 Cal.App.5th 266, 273), and the Flores court concluded that “an appellate court can and should independently review the record on appeal when an indigent defendant’s appointed counsel has filed a