People v. Moeum CA2/8

Filed 1/3/23 P. v. Moeum CA2/8 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citi ng or relying on opinions not certified for publication or ordered published, ex cept 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B300707

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA111652) v.

SOPHORN J. MOEUM,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles County. Laura R. Walton, Judge. Reversed and remanded with directions. Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

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In April 2010, defendant and appellant Sophorn J. Moeum, along with seven accomplices, participated in a violent robbery at an auto parts store that resulted in two fatalities. A jury found defendant guilty of two counts of first degree murder and one count of attempted murder, in addition to five other felonies, and found true the robbery-murder special-circumstance allegations. Defendant’s accomplices were also found guilty. In 2014, we affirmed defendant’s conviction after modifying the judgment to address several sentencing errors. (People v. Kol (June 13, 2014, B243664) [nonpub. opn.].) Following passage of Senate Bill 1437 (2017–2018 Reg. Sess.) which, among other changes, resulted in the enactment of Penal Code section 1170.95, defendant filed a petition for resentencing with the trial court. During the pendency of this appeal, former section 1170.95 was renumbered as section 1172.6 with no change in the text. (Stats. 2022, ch. 58, § 10.) We refer to the statute only by its new designation for clarity. The trial court appointed defendant counsel and the parties filed briefs. After a hearing, the court denied defendant’s petition, reasoning he was not eligible for relief under the statutory scheme on the murder counts in light of the special circumstance findings and not eligible on the attempted murder count because attempted murder was not included within the scope of Penal Code section 1172.6. We affirmed the denial of defendant’s resentencing petition. (People v. Moeum (Feb. 4, 2021, B300707) [nonpub. opn.].) At that time, there was a split in the Courts of Appeal as to whether a jury’s true finding on a special circumstance allegation pursuant to Penal Code section 190.2 precluded resentencing