Filed 5/26/21 P. v. Moreno CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

LUIS ANTHONY MORENO,

Defendant and Appellant.

F080976

(Fresno Super. Ct. No. F13903993)

ORDER MODIFYING OPINION

[NO CHANGE IN JUDGMENT]

THE COURT:

It is hereby ordered that the opinion filed herein on May 25, 2021, be modified as 

follows:

1. On page 3, the first full paragraph that begins, “On September 14, 2014,” is 

deleted and replaced with the following: 

On September 14, 2016, after a jury trial, appellant was convicted as 

charged of count 1, second degree murder of Ms. Vang (Pen. Code, §187;1

People v. Watson (1981) 30 Cal.3d 290, 298), count 2, driving under the 

influence causing injury to Mr. Her (Veh. Code, § 23153, subd. (a)), and 

count 3, felony driving with a blood-alcohol level of 0.08 percent or more 

causing injury to Mr. Her (Veh. Code, § 23153, subd. (b)). (People v. 

Moreno, supra, F079796 at pp. 9–10.)

1 All further statutory references are to the Penal Code unless otherwise stated.
2.

Except for the modification set forth, the opinion previously filed remains 

unchanged.

This modification does not effect a change in the judgment.

POOCHIGIAN, Acting P.J.

WE CONCUR:

DETJEN, J.

PEÑA, J.
Filed 5/25/21 P. v. Moreno CA5 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

LUIS ANTHONY MORENO,

Defendant and Appellant.

F080976

(Fresno Super. Ct. No. F13903993)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, 

Judge.

Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Office of the Attorney General, Sacramento, California, for Plaintiff and 

Respondent.

-ooOoo-

* Before Poochigian, Acting P.J., Detjen, J. and Peña, J.
2.

INTRODUCTION

Appellant Luis Anthony Moreno was convicted of second degree murder for 

driving while intoxicated, crossing the center line, crashing into another car, and killing 

the passenger in that car. In 2019, this court affirmed the judgment on appeal. In 2020, 

appellant filed a motion with the trial court and claimed his sentence should be modified 

based on a newly enacted statute that was inapplicable to his case. The trial court denied 

the motion and this court affirmed that ruling on appeal.

This case represents appellant’s third appeal and is based on additional motions 

that were denied by trial court in 2020, where he again claimed his sentence should be 

modified based on statutes that were inapplicable to his case. On appeal, his appellate

counsel has filed a brief that summarizes the facts with citations to the record, raises no 

issues, and asks this court to independently review the record. (People v. Wende (1979) 

25 Cal.3d 436.) Appellant has filed a letter brief raising one issue relevant to the motions 

he filed, and four issues that are not cognizable. We again affirm.

FACTUAL AND PROCEDURAL BACKGROUND2

Appellant had five prior convictions for driving under the influence (DUI) and had 

been admonished that he could be charged with murder if he killed someone as a result of 

driving under the influence. On May 5, 2013, despite these warnings, he was driving 

with a blood-alcohol level of 0.36 percent, four times the legal limit, and crossed over the 

center line and crashed into a Toyota that had been lawfully traveling in the opposite 

traffic lane. The driver of the Toyota, Yee Her, was seriously injured and his wife and 

passenger, Blia Vang, was killed. When appellant was interviewed after the crash, he 

2 We take judicial notice of the records and this court’s prior unpublished 

appellate opinions in People v. Moreno, January 24, 2019, F074533, nonpublished 

opinion; and People v. Moreno, April 8, 2020, F079796, nonpublished opinion.
3.

admitted that he knew driving under the influence was dangerous. (People v. Moreno, 

supra, F079796 at pp. 2–3, 5.)

On September 14, 2014, after a jury trial, appellant was convicted as charged of 

count 1, second degree murder of Ms. Vang (Pen. Code, §187;3 People v. Watson (1981) 

30 Cal.3d 290, 298), count 2, driving under the influence causing injury to Mr. Her (Veh.

Code, § 23153, subd. (a)); and count 3, felony driving with a blood-alcohol level of 0.08 

percent or more causing injury to Mr. Her (Veh. Code, § 23153, subd. (b)). People v. 

Moreno, supra, F079796 at pp. 9–10.)

The jury found true the following allegations: as to count 1, that appellant 

personally inflicted great bodily injury on Mrs. Vang, which made him ineligible for 

probation (§ 1203.075); and as to counts 2 and 3, that appellant had a blood-alcohol 

content of 0.15 percent or higher (Veh. Code, § 23578),4 he personally inflicted great 

bodily injury on Mr. Her (§ 12022.7, subd. (a))5, and he had a prior DUI conviction in 

2010 that occurred within 10 years of the charged offenses (Veh. Code, § 23560)6.

3 All further statutory citations are to the Penal Code unless otherwise indicated.

4 Vehicle Code section 23578 states in relevant part: “In addition to any other 

provision of this code, if a person is convicted of a violation of Section 23152 or 23153, 

the court shall consider a concentration of alcohol in the person’s blood of 0.15 percent or 

more, by weight ... as a special factor that may justify enhancing the penalties in 

sentencing, in determining whether to grant probation, and, if probation is granted, in 

determining additional or enhanced terms and conditions of probation.”

5 Section 12022.7, subdivision (a) provides for an enhancement of three years

6 Vehicle Code section 23560 states: “If a person is convicted of a violation of 

Section 23153 and the offense occurred within 10 years of a separate violation of Section 

23103, as specified in Section 23103.5, 23152, or 23153 that resulted in a conviction, that 

person shall be punished by imprisonment in the state prison, or in a county jail for not 

less than 120 days nor more than one year, and by a fine of not less than three hundred 

ninety dollars ($390) nor more than five thousand dollars ($5,000). The person’s 

privilege to operate a motor vehicle shall be revoked by the Department of Motor

Vehicles pursuant to paragraph (4) of subdivision (a) of Section 13352. The court shall 
4.

On October 13, 2016, the court conducted the sentencing hearing, and found 

appellant was not eligible for probation, and “even if he were to be eligible for a grant of 

probation, this court would find him not suitable for probation in light of the prior 

criminal history of driving under the influence. The fact that he was on probation for 

driving under the influence when he committed this act that caused the death, noting that 

at the time of this particular act his blood alcohol level was an extremely high level and 

that his actions of intentionally drinking and intentionally driving caused the death of one 

person and the serious injury of another, and therefore, probation is denied.”

The court sentenced appellant to 15 years to life for count 1, second degree murder 

of Mrs. Vang; plus, the consecutive upper term of three years for count 2, driving under 

the influence causing injury to Mr. Her, and a consecutive three years for the great bodily 

injury enhancement attached to count 2. The court stayed the term imposed for count 3 

and the attached enhancement pursuant to section 654.

The first appeal

In his first appeal, appellant challenged the court’s decision to deny defense 

counsel’s repeated requests to instruct the jury on gross vehicular manslaughter and 

involuntary manslaughter as lesser included offenses of second degree murder, and 

argued the court committed prejudicial error in denying his motion to give such 

instructions.

On January 19, 2019, this court filed the opinion that affirmed the judgment, and 

held the trial court properly denied appellant’s motion for the lesser included offense 

instructions. We explained that statutory and decisional law provided that both gross 

vehicular manslaughter while intoxicated, and involuntary manslaughter, were not lesser 

require the person to surrender the driver’s license to the court in accordance with Section 

13550.”
5.

included offenses of second degree murder based on driving while intoxicated under the 

facts of this case. (People v. Moreno, supra, F074533 at p. 2.)

On April 10, 2019, the California Supreme Court denied appellant’s petition for 

review. On April 11, 2019, the remittitur was issued.

The second appeal

On April 16, 2019, appellant filed, in pro. per., a preprinted petition with the trial 

court and requested resentencing pursuant to section 1170.95. Appellant checked boxes 

on the form to allege he was convicted of “1st or 2nd degree murder pursuant to the 

felony murder rule or the natural and probable consequences doctrine” and “2d degree 

murder under the natural and probable consequences doctrine or under the 2d degree 

felony murder doctrine,” and his murder conviction had to be reversed because of the 

amendments resulting from Senate Bill No. 1437 (2017–2018 Reg. Sess.). (People v. 

Moreno, supra, F079796 at p. 12.)

7

7 “In 2018, the Legislature enacted Senate Bill No. 1437 ... to amend the natural 

and probable consequences doctrine as it relates to murder. (Stats. 2018, ch. 1015, § 1, 

subd. (f).) Senate Bill 1437 redefined ‘malice’ in section 188. Now, to be convicted of 

murder, a principal must act with malice aforethought; malice can no longer ‘be imputed 

to a person based solely on [their] participation in a crime.’ (§ 188, subd. (a)(3).)” (In re 

R.G. (2019) 35 Cal.App.5th 141, 144.) “Senate Bill 1437 also adds ... section 1170.95, 

which allows those ‘convicted of felony murder or murder under a natural and probable 

consequences theory ... [to] file a petition with the court that sentenced the petitioner to 

have the petitioner’s murder conviction vacated and to be resentenced on any remaining 

counts ....’ [Citation.] [¶] An offender may file a petition under section 1170.95 where 

all three of the following conditions are met: ‘(1) A complaint, information, or 

indictment was filed against the petitioner that allowed the prosecution to proceed under 

a theory of felony murder or murder under the natural and probable consequences 

doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree murder 

following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be 

convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could 

not be convicted of first or second degree murder because of changes to Section 188 or 

189 made effective January 1, 2019.’ [Citation.]” (People v. Martinez (2019) 31 

Cal.App.5th 719, 723.) Appellant was not tried under a felony-murder theory in this 

case.
6.

On June 19, 2019, the trial court denied appellant’s petition for resentencing and 

held appellant failed to make a prima facie showing that he fell within the provisions of 

section 1170.95, because he “was more than a mere participant in the crime. The killing 

resulted from an intentional act with express or implied malice.” (People v. Moreno, 

supra, F079796 at pp. 12–13.)

On August 12, 2019, appellant filed an appeal from the trial court’s ruling. His 

appellate counsel, who represented him in the first appeal, filed a Wende brief. Appellant 

then filed two letter briefs and raised several issues, most of which were based on claims 

of alleged prejudicial errors at trial. (People v. Moreno, supra, F079796 at pp. 12–13.)

As to the original argument in his petition for resentencing, we held the trial court 

properly denied the petition and explained that appellant was not entitled to relief 

pursuant to the amendments enacted by Senate Bill No. 1437 because he was not 

convicted under a felony murder theory or as an aider or abettor. He was convicted of 

second degree murder as a principal based on express or implied malice. He was the 

“actual killer” who was driving while heavily intoxicated, swerved into the opposing 

lane, slammed into an oncoming vehicle, and killed Mrs. Vang, after being admonished 

after his most recent prior DUI conviction that he could be convicted of murder if he 

killed someone while driving under the influence. (People v. Moreno, supra, F079796 at 

p. 14.)

We also rejected appellant’s claims of prejudicial trial errors because they were 

refuted by the record. Appellant asserted he tried to accept a plea bargain for a 10-year 

term and his trial attorney failed to tell the prosecutor's office that he would accept it. 

However, the record showed that prior to the start of appellant's jury trial, the court stated 

in the presence of appellant and his attorney that the People had previously made an offer 

for appellant to enter a plea to second degree murder, with the dismissal of all other 

counts and enhancements alleged in the original information, and appellant rejected the 

offer. (People v. Moreno, supra, F079796 at p. 13.)
7.

Appellant also complained he was sentenced to a longer term than people 

convicted of first degree murder. (People v. Moreno, supra, F079796 at p. 13.) His 

argument was meritless because “[g]enerally, offenders who commit different crimes are 

not similarly situated. [Citation.]” (People v. Doyle (2013) 220 Cal.App.4th 1251, 1266.) 

Finally, appellant argued he was incapable of committing the “intentional act” 

required for malice because his blood-alcohol level was 0.36 percent, and it was so high 

that he was likely unconscious and lacked the ability to form intent. We noted that in his 

first appeal, we explained that appellant received an express warning and advisement 

after his fifth DUI conviction that he could be charged with murder if he continued to 

drive while under the influence and someone was killed. After he was arrested in this 

case, appellant said he understood it was dangerous to drive while intoxicated and knew 

someone could get hurt. (People v. Moreno, supra, F079796 at pp. 13–14.)

THE CURRENT APPEAL

The current appeal is based on appellant’s filing of two additional motions with 

the trial court, claiming he should be resentenced based on statutes that are not applicable 

to his convictions.

Appellant’s first motion

On February 3, 2020, appellant filed a preprinted form entitled “Motion for 

Modification of Sentence, Pursuant to Senate Bill No.’s 1393, 1618.” The form stated he 

was entitled to modification of his sentence because the two new laws applied 

retroactively to his case, his “five-year prior serious felony conviction enhancement must 

be set aside” based on the amendments to section 667, subdivision (a) and section 1385, 

and there was “a clear indication” the trial court would exercise its discretion to dismiss 

the five-year enhancement. Appellant further argued that “SB 1618” and section 1170, 

subdivision (d)(1) also applied and stated that “people which accepted plea bargains are 

eligible for resentencing relief.”
8.

Appellant’s “motion” was supported by his declaration that at his sentencing 

hearing, the court added two consecutive three-year enhancements under section 667, 

subdivision (a), and these enhancements must now be stricken under Senate Bill 

No. 1393.

The court’s ruling

On February 14, 2020, the trial court filed an order denying appellant’s ex parte 

motion for modification of his sentence. The court held that Senate Bill No. 1393 (2017–

2018 Reg. Sess.) amended section 667, subdivision (a), effective January 1, 2019, but

appellant was not subject to any additional punishment for a five-year prior serious 

felony conviction enhancement, and his reliance on this law was misplaced.

The court clarified that appellant was also relying on Assembly Bill No. 1618 

(2019–2020 Reg. Sess.), which added section 1018.6, effective January 1, 2020. The 

court explained that section 1018.6 provided that plea agreements that require defendants 

to waive ameliorative benefits of future legislation that may retroactively apply are void 

as against public policy. The court held this law did not apply to appellant’s case since 

he was convicted after a jury trial and not as the result of a plea agreement.

Appellant’s second motion

On February 21, 2020, appellant filed a handwritten letter with the trial court, 

asking for relief “under S.B. 1393 [¶] Penal Code 1170(d) Cohort #5 [¶] VI. Sentencing 

Discrepancy Referrals.” Appellant’s letter requested, “Count’s 2 & 3 be Dismissed Per, 

Penal Code 12022.7 Enhancements.” His letter concluded: “Please disregard my 

previous query.”

Appellant’s letter was accompanied by the identical preprinted motion that he 

previously filed, supported by the same declaration where he asserted that he was 

sentenced to two consecutive three-year enhancements pursuant to section 667, 

subdivision (a), and the new law required dismissal of those enhancements and 

resentencing.
9.

Appellant’s letter was also accompanied by a preprinted form entitled: “VI. 

Sentencing Discrepancy Referrals [¶] Cohort #5.” This preprinted form referred to the 

“Gonzalez cohort,” and cited to People v. Gonzalez (2009) 178 Cal.App.4th 1325, 1332, 

for the holding: “Trial court should not have imposed sentence enhancements under 

section 12022.7, subdivision (a) and section 186.22, subdivision (b)(1)(C), because both 

sentence enhancements were based on the great bodily injury the defendant caused while 

committing the underlying offense.” Appellant included the abstracts of judgment and 

minute orders for the sentencing hearing.

The court’s ruling

On February 26, 2020, the trial court denied appellant’s “successive ex-parte 

motion for modification of sentence,” and noted his current motion asked the court to 

disregard his previous motion. “To the extent [appellant] is asking the court to disregard 

his previously submitted motion, it is too late as the Court has already denied the motion 

on its merits.” The court further stated that it was denying his second motion for the 

same reasons already stated in the previous denial.

On March 16, 2020, appellant filed a notice of appeal.

The instant appeal

Appellate counsel, who represented appellant in his first and second appeals, has 

filed a Wende brief in this appeal. The brief also includes the declaration of appellate 

counsel indicating that appellant was advised he could file his own brief with this court. 

By letter on August 10, 2020, we invited appellant to submit additional briefing.

On August 27, 2020, appellant filed a letter brief that raises five issues purportedly 

from the trial court’s order of February 26, 2020.

DISCUSSION

Appellant’s letter brief primarily raises alleged examples of prejudicial error that 

occurred at trial and require reversal of his convictions. These issues are not cognizable 
10.

in this appeal from the court’s order denying his February 2020 motions. Having set 

forth the record, however, we will briefly review his meritless contentions.

First, appellant claims his trial attorney was prejudicially ineffective because of his 

“total failure to investigate and prepare a defense” for his trial, and counsel’s alleged 

“withdrawal” of jury instructions on “vehicular manslaughter.” In a related claim, he 

asserts the prosecutor committed prejudicial misconduct and was “vindictive” because 

she withdrew a jury instruction on “vehicular manslaughter.”

The entirety of the record refutes these assertions. Defense counsel ably 

represented appellant, moved to exclude evidence, and repeatedly argued the court should 

instruct the jury on lesser included offenses to the charge of second degree murder. The 

prosecutor opposed the defense motion on the lesser offenses, and the court decided there 

were no applicable lesser offenses. Appellant raised this issue in his first appeal, this 

court extensively reviewed it, and found the trial court correctly denied the defense 

motion for lesser included offenses. The California Supreme Court denied appellant’s 

petition for review on the issue. Defense counsel never withdrew the instruction, the 

prosecution did not raise a “vindictive” objection, and the trial court correctly ruled on

the issue.

Next, appellant claims the trial court committed “misconduct” and was 

“vindictive” at the sentencing hearing when it found he was not eligible for probation, 

and he was not suitable even if eligible. As set forth above, appellant was statutorily 

ineligible for probation, and the court’s additional findings were based on specific factors 

relevant to probation and were not “vindictive.”

In his letter brief, appellant argues the court “unlawfully imposed enhancements” 

as in People v. Ahmed (2011) 53 Cal.4th 156. Ahmed held the trial court in that case 

properly sentenced the defendant for assault with a firearm, plus enhancements for 

personal use of a firearm and personal infliction of great bodily injury. (Id. at pp. 159–

163.) Appellant’s motion cited People v. Gonzalez, supra, 178 Cal.App.4th 1325, for the 
11.

holding that the trial court improperly imposed both gang and great bodily injury 

enhancements, which also were not applicable in this case. Appellant’s case did not 

involve the offenses and enhancements addressed in Ahmed and Gonzalez.

To the extent appellant argues that the court improperly imposed three years for 

count 2, driving under the influence causing injury of Mr. Her, plus three years for the 

personal infliction of great bodily injury enhancement on Mr. Her, the court properly 

imposed sentences for both count 2 and the enhancement. (People v. Sainz (1999) 74 

Cal.App.4th 565, 568, 576; Hale v. Superior Court (2014) 225 Cal.App.4th 268, 276.) 

“[T]he ‘bodily injury’ component of Vehicle Code section 23153 requires only proof of 

‘ “harm or hurt to the body.” ’ [Citation.] ... [¶] Section 12022.7 is a legislative attempt 

to punish more severely those crimes that actually result in great bodily injury. 

[Citation.] It applies except where serious bodily injury is already an element of the 

substantive offense charged. [Citation.] ... [¶] Since th[e] bodily injury was determined 

to be great bodily injury, it exceeded the level of injury required under Vehicle Code 

section 23153. In such a situation, it is appropriate to increase the punishment by way of 

an enhancement. [Citation.]” (People v. Guzman (2000) 77 Cal.App.4th 761, 765.)

Finally, appellant raises the only issue arguably cognizable in this appeal – that his 

appointed appellate counsel was prejudicially ineffective for failing to restate the claims 

he made in his February 2020 motions to the trial court, that he was entitled to 

modification of his sentence because of the enactments of Senate Bill No. 1393 and 

Assembly Bill No. 1618.

As the trial court explained, however, appellant is not entitled to relief under these 

statutes. Effective January 1, 2019, sections 667 and 1385 were amended by Senate Bill 

No. 1393 to remove the prohibitions on striking or dismissing a prior serious felony 

enhancement. (See Stats. 2018, ch. 1013, §§ 1–2.) The amended statutes apply 

retroactively to all cases that are not yet final. (People v. Garcia (2018) 28 Cal.App.5th 

961, 971–973; People v. Zamora (2019) 35 Cal.App.5th 200, 208.) In this case, the 
12.

prosecution did not plead or prove a prior serious felony enhancement pursuant to section 

667, subdivision (a), and appellant was not sentenced to an additional five-year term for 

such an enhancement.

Appellant also claimed he was entitled to resentencing based on the enactment of 

Assembly Bill No. 1618 (2019–2020 Reg. Session), which added section 1016.8. As of 

January 1, 2020, “[a] provision of a plea bargain that requires a defendant to generally 

waive future benefits of legislative enactments ... that may retroactively apply after the 

date of the plea is void as against public policy.” (§ 1016.8, subd. (b); People v. Barton

(2020) 52 Cal.App.5th 1145, 1149.) As noted by the trial court, appellant did not enter a 

plea and was convicted after a jury trial. Thus, this statute is also inapplicable to his case.

The trial court properly denied appellant’s motions, and appellate counsel was not 

prejudicially ineffective for declining to raise issues that were meritless and not 

applicable to this appeal. (People v. Scheer (1998) 68 Cal.App.4th 1009, 1024.)

DISPOSITION

The judgment is affirmed.