People v. Moss CA2/5

Filed 12/20/22 P. v. Moss CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B321818

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA140311) v.

AMY ELIZABETH MOSS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Mark S. Arnold, Judge. Affirmed. Amy Elizabeth Moss, in pro. per.; Richard B. Lennon and Larry Pizarro, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. ——————————

Amy Elizabeth Moss appeals the trial court’s order denying her petition for vacatur of her murder conviction and resentencing under former Penal Code1 section 1170.95 (now § 1172.6)2 for failure to make a prima facie showing of eligibility. In 1998, the jury found Moss guilty of second degree murder (§ 187, subd. (a)), and two counts of attempted voluntary manslaughter (§§ 192, subd. (a), 664). The jury found true the allegation that Moss personally used a firearm in the commission of the offenses (§ 12022.5, subd. (a)), and personally inflicted great bodily injury in the commission of one of the attempted voluntary manslaughter counts (§ 12022.7). The trial court sentenced Moss to 29 years to life in prison. Moss filed a petition for resentencing pursuant to section 1172.6 on January 6, 2022. The People filed an opposition to the petition on May 12, 2022, attaching the Court of Appeal’s prior opinion and the jury instructions given by the trial court. The court appointed counsel and held a hearing on the matter. The court found Moss prima facie ineligible for relief because she was tried as the actual shooter, and not as an aider and abettor under either a natural and probable consequences or felony murder theory of liability. Moss timely appealed. We appointed counsel. After reviewing the record, counsel filed an opening brief asking this court to review the record independently pursuant to People v. Wende (1979) 25 Cal.3d 436, 441 (Wende). On November 1, 2022, we advised Moss that she