Opinion
B306793
12-16-2021
In re MERRICK JOSE MOORE, on Habeas Corpus.
Patrick J. Hoynoski, under appointment for the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Petition for writ of habeas corpus. Superior Court of Los Angeles County No. KA037355, Juan C. Dominguez, Judge. Relief denied.
Patrick J. Hoynoski, under appointment for the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
EDMON, P. J.
Merrick Jose Moore has appealed from an order denying his petition for writ of habeas corpus for resentencing. Moore contends that his sentence was unauthorized because one count should have been stayed under Penal Code section 654. Because the denial of a petition for writ of habeas corpus is not appealable, we treat the appeal as a petition for a writ of habeas corpus filed in this court and, as such, deny it.
All further undesignated statutory references are to the Penal Code.
BACKGROUND
On a morning in March 1997 at about 7:15 a.m., Mariza Manalo put her six-year-old and two-year-old children in her car. (People v. Moore (1999) 75 Cal.App.4th 37, 40.) The older child was in the front passenger seat, and the younger child was in a car seat in the back. The car was in an attached garage, and the engine was running. When Manalo went back into the house to get something, she heard the car leaving. She ran outside and saw a man, later identified as Moore, driving away with her children in the car. When the car slowed, the six-year old jumped out. Sometime before 8:30 a.m., a witness saw the car pull up across the street from where the witness stood and saw a man walk away from the car. (Id. at p. 41.) Later that afternoon, the car was recovered four and a half miles from Manalo's house with the two-year old still in it. Items that had been in the car were found in Moore's possession.
People v. Moore, supra, 75 Cal.App.4th 37, affirmed Moore's judgment of conviction, and we take our factual summary from that opinion.
In connection with these events, Moore was charged with two counts of kidnapping for carjacking (§ 209.5, subd. (a); counts 1 & 2), carjacking (§ 215, subd. (a); count 3), two counts of kidnapping (§ 207, subd. (a); counts 4 & 5), first-degree residential burglary (§ 459; count 6), and unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a); count 7). The information also alleged various enhancements. A jury found Moore guilty as charged and he was sentenced.
Moore appealed, and a different panel of this Division affirmed the judgment of conviction but vacated the convictions on counts 3, 4, and 5. (People v. Moore, supra, 75 Cal.App.4th at p. 47.) Accordingly, the trial court in February 2000 vacated the sentences on those counts, struck a five-year prior, and resentenced Moore to life on count 1 for kidnapping for carjacking and to 25 years to life plus five years under section 667, subdivision (a)(1), on count 6 for first degree residential burglary.
The trial court imposed a concurrent life term on count 2.
Thereafter, Moore filed three habeas petitions in state court in 2000, which were denied.
In June 2020, Moore filed in the trial court a petition for writ of habeas corpus for resentencing. In it, he stated as a ground for relief that the trial court acted in excess of its jurisdiction by affirming multiple convictions based on a single charged act in violation of section 654. He also argued that the trial court should have struck one of his priors, that he could not have been charged with carjacking because no adult was in the car, he should not have been sentenced under the Three Strikes law because he incurred his priors before that law was passed, and his trial counsel provided ineffective assistance by failing to introduce the preliminary hearing transcripts which would have showed that the convictions were based on the same act against the same individual.
The trial court summarily denied the petition, finding that Moore had failed to allege facts establishing a prima facie case for habeas relief, the petition was untimely, the petition raised issues that could have been raised on direct appeal and that had been previously rejected, and he failed to establish that but for any deficient performance by his trial counsel there was a reasonable probability of a more favorable outcome.
Moore then filed a notice of appeal from the order denying his petition for writ of habeas corpus. As we have said, the order is not appealable. (§ 1506; Jackson v. Superior Court (2010) 189 Cal.App.4th 1051, 1064.) Nonetheless, we exercise our discretion in the interests of judicial economy and deem the appeal to be a petition for writ of habeas corpus filed in this court. (See, e.g., People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4; People v. Gallardo (2000) 77 Cal.App.4th 971, 986). We further deem the respondent's brief an informal response.
DISCUSSION
Moore contends that his consecutive sentence on count 6 for first degree burglary was unauthorized because the trial court should have stayed the sentence under section 654. We disagree for at least two reasons.
First, Moore's petition presents a claim that could have been raised on direct appeal. Having failed to do so, it is procedurally barred. (See, e.g., In re Reno (2012) 55 Cal.4th 428, 455-456.) This rule is particularly apt where, as here, the issue is generally a question of fact for the trial court. (See, e.g., People v. Jackson (2016) 1 Cal.5th 269, 354 [applicability of section 654 generally factual question for trial court].)
Second, the claim fails on the merits. A sentence imposed in violation of section 654 is unauthorized and may be corrected at any time. (People v. Soto (2016) 245 Cal.App.4th 1219, 1234.) The sentence, here, however, was not unauthorized.
Rather, section 654, subdivision (a), provides that an act or omission punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but not under more than one provision. The statutory reference to an "act or omission" may refer to a discrete physical act or to an indivisible course of conduct encompassing several acts pursued with a single objective. (People v. Corpening (2016) 2 Cal.5th 307, 311.) Whether a course of conduct is divisible for the purposes of section 654 depends on the defendant's intent and objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1209.) Even where a course of conduct is "directed to one objective," multiple punishments are justified if the acts comprising the course of conduct are "divisible in time." (People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11.) "Where the defendant's acts are 'temporally separated' they 'afford the defendant opportunity to reflect and to renew his or her intent before committing the next [offense], thereby aggravating the violation of public security or policy already undertaken.'" (People v. Deegan (2016) 247 Cal.App.4th 532, 542; accord, People v. Felix (2001) 92 Cal.App.4th 905, 915 [multiple convictions not one transaction where defendant had chance to reflect between offenses and each offense created new risk of harm].)
Kidnapping for carjacking occurs when any "person who, during the commission of a carjacking and in order to facilitate the commission of the carjacking, kidnaps another person who is not a principal in the commission of the carjacking." (§ 209.5, subd. (a).) First degree burglary occurs when a person enters an inhabited dwelling with the intent to commit any felony. (§ 459; People v. Garcia (2017) 17 Cal.App.5th 211, 223.)
Here, a trial court could have found that the burglary was divisible from the kidnapping for carjacking in that there was evidence Moore had time to reflect and to renew or to form a different intent to commit the kidnapping for carjacking. (See, e.g., People v. Lopez (2011) 198 Cal.App.4th 698, 717-718 [theft of purse temporally separated from defendant's later use of access card he discovered in purse].) There was sufficient evidence to support a finding that Moore did not know that anyone was in the car until he got into it, given the young age of the children. Thus, he would have entered the garage intending simply to steal the car. But, on getting into the car and seeing at least the child in the front seat, he had time to reflect on his actions and to leave. Instead, he aggravated the situation by proceeding to steal a car with two young children in it, one of whom was too young to escape. Indeed, the evidence showed that he did not abandon the car and the child until over an hour after stealing the car. Under these facts, a trial court would not have been required to stay count 6 under section 654; hence, Moore's sentence was not unauthorized.
DISPOSITION
The petition for writ of habeas corpus is denied.
We concur: LAVIN, J., EGERTON, J.