Filed 9/29/23 P. v. Moore CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E080230
v. (Super.Ct.No. INF066216)
DAVIS MOORE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John J. Ryan, Judge.
(Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI,
§ 6 of the Cal. Const.) Affirmed.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier, Warren
Williams and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
1 INTRODUCTION
In 2017, a jury found defendant and appellant, Davis Moore, guilty of forcible
rape (Pen. Code,1 § 261, subd. (a)(2), count 1), forcible oral copulation (former § 288a,
subd. (c)(2), count 2), and forcible penetration with a foreign object (§ 289, subd. (a)(1),
count 3). A trial court found that defendant had a 1987 conviction for forcible rape,
which constituted a prior serious felony conviction and a prior strike. (§§ 667, subds. (a),
(c) & (e)(1), 1170.12, subd. (c)(1).)2 The court sentenced defendant to 50 years to life on
counts 1 through 3 and imposed an additional five-year term on the prior serious felony
conviction enhancement (§ 667, subd. (a)), for a total sentence of 55 years to life.
Defendant appealed, and this court affirmed the judgment, but remanded to the
sentencing court “with directions to determine whether, in the court’s discretion, the five-
year term the court originally imposed on defendant’s prior serious felony conviction
should be stricken in the interests of justice, . . .” (Moore, supra, E069625.)
At the resentencing hearing, defendant asked the court to dismiss the five-year
prior enhancement because he had already been sentenced to 50 years to life and was 66
years old. The court denied the request.
In this appeal, defendant contends the court abused its discretion when it failed to
dismiss the five-year enhancement since there is no indication the court “afforded great
1 All further statutory references will be to the Penal Code unless otherwise indicated.
2 The background is taken from this court’s opinion in the prior appeal (People v. Moore (June 11, 2020, E069625) [nonpub. opn]), which we took judicial notice of pursuant to the People’s request. 2 weight to” the fact that his prior conviction was more than five years old, pursuant to
section 1385, subdivision (c)(2)(H). He then admits his counsel failed to argue that the
enhancement should be dismissed under section 1385, subdivision (c)(2)(H), and claims
his counsel thereby rendered ineffective assistance of counsel (IAC). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2014, defendant was charged by third amended information with forcible rape
(§ 261, subd. (a)(2), count 1), forcible oral copulation (former § 288a, subd. (c)(2), count
2), forcible penetration with a foreign object (§ 289, subd. (a)(1), count 3), and false
imprisonment (§ 236, count 4). The amended information also alleged that defendant had
a 1987 conviction for forcible rape, which constituted a prior serious felony conviction
(§ 667, subd. (a)) and a prior strike (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).
In our opinion issued in the prior appeal, we described in detail the evidence
presented at trial. (Moore, supra, E069625.) For purposes of this appeal, we need not
describe it at length, but the evidence generally showed that in March 2009, the victim
went with friends to some nightclubs in Palm Springs. The friend that drove her became
intoxicated and could not remember where he left his car, and he and the other friend left
in a taxi without her. The victim went to a casino and talked to some taxi drivers, but she
did not have enough money to get home. Defendant walked into the casino and offered
to help the victim find her friend’s car. She declined, but defendant kept insisting he
could help her. The victim began seeing him as a “father figure” and agreed to let him
help her. They drove in defendant’s car, and then defendant offered to get her a hotel
room. He kept insisting, and she agreed. He checked her into a motel at 4:00 a.m.
3 Defendant walked into the room and sat on the bed. He removed his clothing until he
only had his underwear on. Because she was tired, the victim lay on the other side of the
bed, fully clothed. Defendant then took her clothes off and forcibly performed oral sex
and raped her. The victim resisted and kept telling him to stop, but he was larger than
her, and she did not want him to get violent. (Moore, supra, E069625.)
Defendant had prior sex offenses. In 1986, he was driving in a car and pulled over
near a 17-year-old girl, who was walking alone. He got out and pulled her into his car.
Defendant drove her to an apartment complex and raped her. (Moore, supra, E069625.)
In 2000, defendant saw his wife’s 23-year-old coworker at a bus stop and offered her a
ride. He said he had to make a phone call, so he stopped at his house and asked her if she
wanted something to drink. Once inside the house, he raped her. (Moore, supra,
E069625.)
A jury convicted defendant of forcible rape (count 1), forcible oral copulation
(count 2), and forcible sexual penetration with a foreign object (count 3), but acquitted
him of false imprisonment (count 4). (Moore, supra, E069625.) The court found true the
allegations that defendant had a 1987 conviction for forcible rape, which constituted a
prior serious felony conviction and a prior strike. (Ibid.) It then sentenced him to 25
years to life on count 1, doubled pursuant to the strike, and concurrent terms of 50 years
to life on counts 2 and 3. The court imposed an additional five-year term on the prior
serious felony conviction (§ 667, subd. (a)), resulting in a total sentence of 55 years to
life.
4 Defendant appealed and this court affirmed the judgment, but ordered the matter
remanded for the trial court to exercise its discretion under amendments made to sections
667 and 1385 effective January 1, 2019, to determine whether the five-year term on the
prior serious felony conviction enhancement should be stricken in the interests of justice.
(Moore, supra, E069625.)
The court held a resentencing hearing on September 27, 2022. At the outset of the
hearing, the court stated that it read the remittitur. Defense counsel submitted medical
records and asserted that defendant had blood clots in his lungs and congestive heart
failure. The court acknowledged that it read the medical records and that defendant had
medical issues. Defense counsel then asked the court to exercise its discretion and strike
the five-year enhancement, noting that defendant was 66 years old and had been
sentenced to 50 years to life. Defense counsel said he did not think defendant was “going
to live to see his 66 years plus 50” and argued the sentence was “long enough as it is.”
He concluded that it is “going to be impossible for [defendant] to survive that sentence in
any case.” The prosecutor sought imposition of the enhancement term, citing the
aggravating factors that the crime involved the threat of great bodily harm or a high
degree of cruelty, viciousness, or callousness; the victim was particularly vulnerable; the
manner in which the crime was carried out indicated planning and sophistication; and
defendant took advantage of a position of trust to commit the crime. The prosecutor also
pointed out that defendant had numerous prior convictions. He further argued defendant
engaged in violent conduct that indicated a serious danger to society with the current
crime, he had committed similar offenses against numerous victims and the offenses were
5 numerous and increasing in violence, he had served prior terms in prison or jail, and he
was on probation at the time of the current offense. Finally, the prosecutor asserted that
defendant’s “prior performance on probation, mandatory supe [sic], post-release
community supervision was unsatisfactory in that he was committing more serious,
violent crimes.” Defense counsel responded that defendant was already serving his 50-
year sentence and “[i]t is adding insult to the injury to ask for five additional years.”
After hearing the evidence and arguments, the court stated, “I’m not striking the
prior. The background, the current offenses, other—other victims that he wasn’t charged
with, and I don’t think the judge who sentenced him, in fact, I’m sure no other judge in
their right mind would strike the five-year prior. So that request is denied.”
DISCUSSION
The Court’s Sentencing Decision Was Not an Abuse of Discretion
Defendant first argues the trial court abused its discretion in failing to dismiss his
section 667 five-year, prior serious felony conviction enhancement (the enhancement),
claiming the court was required to dismiss it under section 1385, subdivision (c)(2)(H),
because the prior conviction was over five years old. He argues that since the court
imposed the enhancement, it “necessarily” found that dismissing it would endanger
public safety. (§ 1385, subd. (c)(2).) Defendant contends that such finding was without
factual support since he was a 66-year-old man who was sentenced to serve 50 years to
Defendant then concedes his defense counsel did not argue that the court should
dismiss the enhancement under section 1385, subdivision (c), and asserts that his counsel
6 was not required to since it is presumed the court knew the laws applicable to his
sentencing. He adds that, if we find his counsel was required to do so, his counsel
provided IAC. In support of the IAC claim, defendant contends that it appears his
counsel was unaware that section 1385 had been amended, effective January 1, 2022, “in
a manner that benefitted [his] case.” Defendant then claims that had his counsel argued
for dismissal under section 1385, subdivision (c)(2)(H), the court would have been
compelled to dismiss it “[f]or the reasons expressed in Part I” of his brief.
We conclude that the court properly exercised its discretion in declining to dismiss
the enhancement.
A. Standard of Review
“We review the trial court’s exercise of discretion at sentencing for abuse.”
(People v. Shenouda (2015) 240 Cal.App.4th 358, 368; see People v. Carmony (2004) 33
Cal.4th 367, 375 (Carmony).) “In reviewing for abuse of discretion, we are guided by two
fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to
clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the
absence of such a showing, the trial court is presumed to have acted to achieve legitimate
sentencing objectives, and its discretionary determination to impose a particular sentence
will not be set aside on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed
merely because reasonable people might disagree. ‘An appellate tribunal is neither
authorized nor warranted in substituting its judgment for the judgment of the trial
judge.’ ” ’ [Citations.] Taken together, these precepts establish that a trial court does not
7 abuse its discretion unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.” (Carmony, at pp. 376-377.)
B. The Court Did Not Abuse its Discretion
In defendant’s prior appeal, we remanded the matter to allow the trial court to
decide whether to exercise its then-new discretion under amendments to section 1385 to
strike the prior serious felony enhancement in the interests of justice. (Moore, supra,
E069625.) The Legislature subsequently enacted Senate Bill No. 81 (Senate Bill 81)
(2021-2022 Reg. Sess.), which further amended section 1385 to add subdivision (c). The
newly added subdivision lists specific mitigating factors a court must consider when
deciding whether to strike an enhancement from a defendant’s sentence in the furtherance
of justice. (§ 1385, subd. (c); see People v. Sek (2022) 74 Cal.App.5th 657, 674.)
Section 1385, subdivision (c), now provides, “[n]otwithstanding any other law, the
court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if
dismissal of that enhancement is prohibited by any initiative statute.” (§ 1385,
subd. (c)(1).) “In exercising its discretion under [subdivision (c)], the court shall
consider and afford great weight to evidence offered by the defendant to prove that any of
the mitigating circumstances in [the subparagraphs to subdivision (c)(2)] are present.
Proof of the presence of one or more of these circumstances weighs greatly in favor of
dismissing the enhancement, unless the court finds that dismissal of the enhancement
would endanger public safety. ‘Endanger public safety’ means there is a likelihood that
the dismissal of the enhancement would result in physical injury or other serious danger
to others.” (§ 1385, subd. (c)(2).) The mitigating circumstances identified in the
8 subparagraphs include that “[t]he enhancement is based on a prior conviction that is over
five years old.” (§ 1385, subd. (c)(2)(H).)
Thus, section 1385, subdivision (c)(1), establishes the subdivision’s overall
context, that dismissing an enhancement must be “in the furtherance of justice.” “Section
1385 makes clear that whether dismissal of an enhancement is ‘in the furtherance of
justice’ is a ‘discretion[ary]’ call for the trial court to make.” (People v. Walker (2022)
86 Cal.App.5th 386, 395, review granted Mar. 22, 2023, S278309 (Walker); see § 1385,
subd. (c)(2) [“In exercising its discretion …” (italics added)].) If a mitigating
circumstance has been proven, then the trial court shall afford it great weight in favor of
dismissal, unless doing so would endanger public safety. (§ 1385, subd. (c)(2).)
We observe that a split of authority has emerged among the Courts of Appeal
regarding the application of section 1385, subdivision (c)(2). (Compare Walker, supra,
86 Cal.App.5th 386 with People v. Ortiz (2023) 87 Cal.App.5th 1087, review granted
Apr. 12, 2023, S278894 (Ortiz).) How courts should construe and apply the newly added
provision is a question currently pending before the California Supreme Court. In
granting review of the Walker decision, our high court defined the issue as follows:
“Does the amendment to . . . section 1385, subdivision (c) that requires trial courts to
‘afford great weight’ to enumerated mitigating circumstances (Stats. 2021, ch. 721) create
a rebuttable presumption in favor of dismissing an enhancement unless the trial court
finds dismissal would endanger public safety?” (Walker, supra, S278309.)
Defendant here argues that “[o]ne of the circumstances requiring dismissal of an
enhancement applies in this case.” (Italics added.) He cites section 1385, subdivision
9 (c)(2)(H), which provides that the “enhancement is based on a prior conviction that is
over five years old” and argues that the court was required to dismiss the enhancement
since it was based on his prior conviction from 1987.
We disagree that the court was required to dismiss the enhancement. We read
subparts (1) and (2) of section 1385, subdivision (c), together, such that evidence
weighing greatly in favor of dismissal of an enhancement under the statute, and any
countervailing consideration concerning danger to public safety (§ 1385, subd. (c)(2))
inform, but do not restrict the court’s exercise of discretion to “dismiss an enhancement if
it is in the furtherance of justice to do so.” (§ 1385, subd. (c)(1), italics added.) We
agree with the reasoning in Ortiz that “the specification of mandatory factors did not
displace the trial court’s obligation to exercise discretion in assessing whether dismissal
is ‘in furtherance of justice.’ ” (Ortiz, supra, 87 Cal.App.5th at p. 1093, citing § 1385,
subd. (c)(1)-(2); see People v. Johnson (2022) 83 Cal.App.5th 1074, 1091, review
granted Dec. 14, 2022, S277196.) “The plain language of section 1385[, subdivision]
(c)(2) contemplates the trial court’s exercise of sentencing discretion, even as it mandates
that the court give ‘great weight’ to evidence of enumerated factors.” (Ortiz, supra, 87
Cal.App.5th at p. 1096.) The Ortiz court rejected the contention that the existence of a
statutory mitigating circumstance compels a trial court to dismiss an enhancement absent
a finding that a dismissal would endanger public safety. (Id. at p. 1098.) It concluded,
and we agree, that “[t]he ultimate question before the trial court remains whether it is in
the furtherance of justice to dismiss an enhancement.” (Ibid.; see § 1385, subd. (c)(1).)
10 Furthermore, “ ‘[G]enerally applicable sentencing principles’ relevant to a court’s
determination of whether dismissal is in furtherance of justice ‘relat[e] to matters such as
the defendant’s background, character, and prospects.’ [Citation.] Those principles
require consideration of circumstances in mitigation (and aggravation) in the broader
context of the recognized objectives of sentencing, which are not limited to public
safety.” (Ortiz, supra, 87 Cal.App.5th at p. 1097.) The court here declined to strike the
enhancement, based on defendant’s current offenses, prior offenses, and background. His
current offenses were forcible rape, forcible oral copulation, and forcible penetration with
a foreign object. The evidence showed that he raped a 17-year-old girl in 1986, and he
raped his wife’s 23-year-old coworker in 2000. (Moore, supra, E069625.) Furthermore,
the probation report reflects that defendant has numerous misdemeanor and felony
convictions, dating back to 1977. It also reflects circumstances in aggravation, which
include that the current crime involved great violence or other acts disclosing a high
degree of cruelty or callousness, the manner in which the crime was carried out indicated
planning, sophistication, or professionalism, defendant had engaged in violent conduct
that indicates a serious danger to society, his convictions were numerous and of
increasing seriousness, he had served prior prison and jail terms, he was on probation
when the current crime was committed, and his prior performance on parole or probation
was unsatisfactory. The probation report stated there were no circumstances in
mitigation. (Cal. Rules of Court, rules 4.421, 4.423.) In light of the evidence before the
court, it properly concluded that dismissing the enhancement would not be in the
furtherance of justice.
11 Defendant contends there is no indication the trial court “afforded great weight to”
the fact that his prior conviction was more than five years old. (§ 1385, subd. (c)(2)(H).)
It is reasonable to presume the trial court was aware the prior conviction occurred more
than five years prior to the present offense since it read the remittitur, which included our
prior opinion that states the prior conviction was from 1987. Although defense counsel
did not argue the mitigating circumstance in section 1385, subdivision (c)(2)(H), applied,
we presume the court was aware of the amended statute since it went into effect more
than nine months prior to the hearing. (See People v. Thomas (2011) 52 Cal.4th 336, 361
(Thomas) [“[i]n the absence of evidence to the contrary, we presume that the court
‘knows and applies the correct statutory and case law’ ”].) Thus, the only mitigating
factor was that the prior conviction was over five years old. In contrast, there were
multiple aggravating factors. (See ante.) The court could easily conclude the
aggravating factors collectively outweighed the one mitigating factor. Significantly,
defendant does not contend it was inappropriate for the court to consider any of the
aggravating factors.
We note defendant’s claim that since the court imposed the enhancement, it
necessarily found that dismissing it would endanger public safety. (§ 1385, subd. (c)(2).)
He argues that at the time of sentencing, he was a 66-year-old man who was sentenced to
serve 50 years to life, and the court’s finding that “tacking on another five years was
required to prevent ‘physical injury or other serious danger to others’ was arbitrary,
irrational, and without factual support.” However, the court made no such finding, nor
was it required to. Rather, it based its denial on defendant’s current offenses and
12 background. We note that the court was aware of defendant’s medical issues and his
advanced age, which is perhaps why it did not reference the public safety issue.
Ultimately, defendant has failed to meet his burden “ ‘ “to clearly show that the
sentencing decision was irrational or arbitrary.” ’ ” (Carmony, supra, 33 Cal.4th at
p. 376.) He has not disputed the court’s reasons for declining to dismiss the enhancement
(his current crimes and background, including his criminal history and the aggravating
factors). Because defendant has failed to show the court’s reasoning for not striking the
enhancement was irrational or arbitrary, the “ ‘ “court is presumed to have acted to
achieve legitimate sentencing objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.” ’ ” (Carmony, supra, 33 Cal.4th at
pp. 376-377.)
C. Defendant Has Failed to Establish His Counsel Was Ineffective
Defendant acknowledges his counsel did not argue the enhancement should be
dismissed because his prior conviction was more than five years old (§ 1385,
subd. (c)(2)(H)), but contends his counsel was not required to do so, since it is presumed
the court knew the laws applicable to his sentencing. (Thomas, supra, 52 Cal.4th at
p. 361.) Notwithstanding, he argues that, if his counsel was required to specifically refer
to section 1385, subdivision (c), his counsel rendered IAC. To establish a claim of IAC,
a defendant must first show counsel’s performance was deficient, and then “show
resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceeding would have been different. When
examining an ineffective assistance claim, a reviewing court defers to counsel’s
13 reasonable tactical decisions, and there is a presumption counsel acted within the wide
range of reasonable professional assistance. It is particularly difficult to prevail on an
appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed
for ineffective assistance only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) there simply could be no satisfactory explanation.
All other claims of ineffective assistance are more appropriately resolved in a habeas
corpus proceeding.” (People vs. Mai (2013) 57 Cal.4th 986, 1009 (Mai).)
Here, it is true that the evidence showed defendant’s prior conviction was more
than five years old. However, we discern that defense counsel had an obvious tactical
reason for not arguing section 1385, subdivision (c)(2)(H), applied. Given defendant’s
extremely violent actions in the present case and his prior conviction for similar violent
acts, defense counsel may have reasonably concluded that arguing the reduction of
defendant’s sentence by striking the prior would not affect public safety would be futile
and only provide the court a stronger reason to decline to exercise its discretion to
dismiss the enhancement.3 Thus, we see reasonable tactical reasons why defense counsel
chose to argue for dismissal of the enhancement based on other factors and conclude that
defendant has not shown that defense counsel’s performance was deficient.
3 Although defendant’s sentence was lengthy, that sentence could be reduced later by a court or by changes in the law made by the Legislature. That very scenario occurred in this case with respect to the serious prior allegation at issue. 14 Even if we were to assume defense counsel’s performance was deficient,
defendant has still failed to establish he was prejudiced. He merely asserts that “[f]or the
reasons expressed in Part I [of his opening brief], had trial counsel directed the trial court
to section 1385, subdivision (c), the trial court would have been compelled to dismiss the
prior serious felony enhancement.” Defendant appears to be arguing that if his counsel
had made the argument for dismissal under section 1385, subdivision (c)(2)(H), the court
would have dismissed the enhancement since a finding that dismissing the enhancement
would endanger public safety was irrational and without factual support. However, as
defendant concedes, we presume the court already knew the laws applicable to his
sentencing. (Thomas, supra, 52 Cal.4th at p. 361.) Further, as discussed ante, the court
reasonably concluded it was not in the furtherance of justice to dismiss the enhancement,
in light of defendant’s current crimes, extensive criminal history, and the numerous
aggravating factors. (See ante, § B.) We also point out that, in denying the request for
dismissal, the court stated it was “sure no other judge in their right mind would strike the
five-year prior.” In view of this comment, even if defense counsel would have argued
that the prior conviction was over five years old, it is not reasonably probable the court
would have dismissed the enhancement.
On this record, we conclude that defendant has not and cannot show a reasonable
probability that, but for counsel’s deficient performance, the outcome of the proceeding
would have been different. (Mai, supra, 57 Cal.4th at p. 1009.)
15 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
CODRINGTON Acting P. J.
RAPHAEL J.