Opinion
B300228
06-16-2020
THE PEOPLE, Plaintiff and Respondent, v. MOSES LEE TURNER, Defendant and Appellant.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA179907) APPEAL from an order of the Superior Court of Los Angeles County, Craig E. Veals, Judge. Affirmed. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
____________________
On May 18, 2001, a jury convicted defendant of one count of first degree murder (Pen. Code, § 187, subd. (a)) and two counts of second degree robbery (§ 211). For the murder count, the jury found true the allegations that a principal was armed with a firearm (§12022, subd. (a)(1)), and that defendant committed the murder while engaged in the commission of a robbery (§ 190.2, subd. (a)(17)). The jury also found true the allegation that for each robbery, a principal was armed with a firearm (§ 12022, subd. (a)(1)).
Further statutory references are to the Penal Code.
On December 16, 2002, a panel of this division affirmed defendant's conviction. (People v. Turner (Dec. 16, 2002, B152074 [nonpub. opn.].) The panel described the facts of the crime as follows:
"The Nguyen family owned Wit's Liquor Store in Lawndale. During the afternoon of December 25, 1998, Samantha Nguyen was working at the cash register, while her father, Alan Nguyen, napped on a pillow and blanket set up behind the counter.
"At 2:30 p.m., defendant [Jermaine] Sims entered the store, retrieved a can of soda from a refrigerated cooler, went to the counter, paid for his soda, and left the store. A few minutes later, defendant Sims re-entered the store accompanied by defendant . . . . Defendant Sims held a gun to Samantha Nguyen's head and demanded money from the cash register. Simultaneously, defendant . . . circled to the back of the counter where Alan Nguyen slept, picked up the still-sleeping man, and violently beat him on the head with his fists and the butt of a handgun. At one point, defendant . . . smashed Alan Nguyen's head against a shelf of bottles. While watching the assault on her father, Samantha Nguyen attempted to comply with defendant Sims's demand to empty the cash register's contents into a paper bag. Defendant Sims set down his soda on the counter, grabbed the bag from Samantha Nguyen and put in more money from the register, as well as some credit card receipts. Defendant Sims then ordered Samantha Nguyen to lie on the floor, which she did. Defendants then left the store, leaving behind both the paper bag full of money ($200) and credit card receipts, and defendant Sims's soda. A surveillance camera had captured the entry of both defendants into the store and defendant Sims's robbery of Samantha Nguyen, although the quality of the videotape was not clear.
"Alan Nguyen died at the scene from severe brain trauma. He had suffered multiple head injuries caused by 'moderate to severe force.'
"Defendant Sims's fingerprints were found on several items inside the store, including the soda can and one of the credit card receipts in the paper bag. In argument to the jury, defendant Sims's attorney conceded defendant Sims's presence in the store and robbery at gunpoint of Samantha Nguyen.
"Samantha Nguyen positively identified defendant . . . from a photographic display. At trial, she first failed to identify him, but upon further consideration, she stated she recognized defendant . . . in court but did not recall which of the two men he was. Eric Johnson was defendant[]'s parole officer. He did not testify to his occupation, but instead testified that he had met defendant . . . in July 1998 and saw him six times over a five-month period for approximately ten minutes each visit. He positively identified defendant . . . from the surveillance videotape.
"Defendants offered no affirmative defense."
On February 7, 2019, defendant filed a petition for resentencing pursuant to section 1170.95. Defendant checked a number of boxes on a preprinted petition indicating, among other things, that he had been convicted of first or second degree murder at trial under a felony murder rule or the natural and probable consequences doctrine; that he was not the actual killer; and that he requested the appointment of counsel. He further attached a memorandum of points and authorities that challenged his underlying conviction on the grounds that: the photographic display was unduly suggestive; the trial court erred in allowing Johnson to identify him in the surveillance video; prior counsel was ineffective; and California's determinate sentencing scheme violated his Sixth Amendment rights.
On March 14, 2019, the trial court summarily denied the petition on the grounds that defendant was the actual killer and was therefore not entitled to relief under section 1170.95.
On June 3, 2019, the trial court vacated its March 14, 2019, order and appointed counsel to represent defendant.
The District Attorney filed an opposition to the petition, which argued, among other things, that defendant was not entitled to relief because he was the actual killer. The opposition attached, among other items, a Lexis printout of the opinion affirming defendant's conviction, the information filed in this case, the jury instructions from the 2001 trial, and the completed verdict forms.
We consider this court's prior ruling of February 19, 2020, and grant defendant's motion to augment the record, filed January 30, 2020, with items 1 and 2. --------
On July 15, 2019, defendant's counsel and a Deputy District Attorney appeared for a hearing on this matter. The trial court stated that the petition did not appear to be well taken because defendant was the actual killer. It asked defense counsel whether defendant wished to have any further proceedings on the petition. Counsel stated defendant would submit on the petition that day. The prosecutor also submitted on the record. The court denied the petition and on July 30, 2019, defendant timely filed a notice of appeal.
We appointed counsel to represent defendant on appeal. Defendant's appointed appellate counsel filed an opening brief in accordance with People v. Wende (1979) 25 Cal.3d 436 requesting that we independently review the entire record to determine if there are any arguable issues. On February 27, 2020, we notified defendant that appointed appellate counsel had failed to find any arguable issues and that he had 30 days within which to independently brief any grounds for appeal, contentions, or arguments he wanted us to consider.
On March 16, 2020, defendant filed a document entitled "Appellant's Opening Brief." In that brief, defendant, among other things, challenges evidentiary rulings from his 2001 trial; alleges that the trial court changed the transcripts of the trial proceedings; contends that witnesses lied at trial; challenges the sufficiency of the evidence at trial; and contends that prior counsel was ineffective. Defendant, however, does not raise any argument that is relevant to his section 1170.95 petition.
We have reviewed the record and are satisfied that defendant's appointed appellate counsel has fully complied with her responsibilities and no arguable issue exists. (People v. Wende, supra, 25 Cal.3d at p. 441.) The trial court did not err in concluding that defendant was not entitled to resentencing pursuant to section 1170.95 because the record demonstrated that he was the actual killer and could thus be convicted of first or second degree murder even after changes made to section 188 or 189, effective January 1, 2019.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.