People v. Moore
Decision Date | 23 March 2017 |
Docket Number | B271685 |
Parties | THE PEOPLE, Plaintiff and Respondent, v. TYESHA MOORE, Defendant and Appellant. |
Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MA065051)
APPEAL from an order of the Superior Court of Los Angeles County, Charles A. Chung, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant Tyesha Moore is currently serving a sentence of 21 years in state prison following her conviction in May 2015 of two counts of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)),1 one count each of possession of a firearm by a felon (§ 29800, subd. (a)(1)) and possession of ammunition (§ 30305, subd. (a)(1)), and her admission of two prior prison terms (§ 667.5, subd. (b)). One of the prior prison terms was for a felony burglary conviction (§ 459) in April 2011.
Defendant was sentenced in June 2015. In August 2015, she filed a petition under section Proposition 47 to reduce the prior burglary conviction to a misdemeanor. Although the record is not entirely clear on the point, it appears that the conviction arose from a charge that defendant possessed a forged access card with intent to defraud.
On November 13, 2015, the sentencing court in the burglary case heard the petition. At the hearing, the prosecutor conceded that defendant's burglary conviction was eligible for reduction to a misdemeanor because the value of the property taken or intended to be taken was less than $950.2 However, the prosecutor contended that defendant was not suitable for reduction under section 1170.18, subdivision (b), which provides in relevant part that the court shallrecall the sentence, Section 1170.18, subdivision (c) provides: "As used throughout this Code, 'unreasonable risk of danger to public safety' means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667."3
The trial court reviewed defendant's record and agreed that defendant was not suitable for reduction:
Defendant appealed from the ruling, and her appointed counsel on appeal filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436. Defendant was advised of her right to file a supplemental brief, but has not done so.
We have independently reviewed the record. A trial court's determination that a defendant poses an unreasonable risk of danger isreviewed for abuse of discretion. (People v. Hall (2016) 247 Cal.App.4th 1255, 1264.) The probation report prepared for the case for which defendant is currently serving her sentence supports the trial court's assessment of defendant, although the court was incorrect in certain particulars. The probation report reflects the following: a sustained juvenile petition in 1991 for possession of a weapon at a school (the trial court erroneously referred to this as a sustained petition for burglary), two adult misdemeanor convictions of petty theft in 1997 and 1998, respectively, a misdemeanor conviction of assault with a deadly weapon in 2005, and four convictions of burglary (one in 2006, two in 2008, and one in 2010 — the conviction sought to be reduced).
The trial court also referred to conspiracy, attempted murder, and possession of ammunition as a misdemeanor in 2014. However, this entry refers to the original charges in the case for which defendant is currently serving her sentence. She was ultimately convicted of two counts of assault with a semiautomatic firearm, as well as one count each of possession of ammunition as a felony and felon in possession of a firearm. Although the court stated that it would not consider the "current conviction," apparently referring to the case for which defendant is currently serving her sentence, the court unnecessarily circumscribed its review. The time for determining defendant's dangerousness is at the time the petition under section 1170.18 is ruled upon. Here, defendant had already been convicted and sentenced on that case. Thus, the court could properly consider the current convictions, and to the extent the entry the court referred to wasinaccurate, that inaccuracy...
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