1

Filed 7/7/23 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

v.

DAYMON ZACHARY MOORE,

Defendant and Appellant. E078602

(Super.Ct.No. FSB033089)

OPINION

APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill,

Judge. Affirmed.

Heather L. Beugen, 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, A. Natasha Cortina and Alan

L. Amann, Deputy Attorneys General, for Plaintiff and Respond ent.2

Defendant and appellant Daymon Zachary Moore appeals from the trial court’s

order denying his petition for resentencing under Penal Code 1 section 1170.95 (now

section 1172.6 2 )

. For the reasons set forth post , we affirm the court’s order.

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

In 200 4 , a jury convicted defendant of murder under section 187, subdivision (a);

burglary of an inhabited dwelling under sections 459 and 462, subdivision (a); and

attempted second

- degree robbery unde r sections 211 and 664

. ( People v. Moore (Aug

.

18, 2006, E039142) [ nonpub. opn.], at p.1 ( Moore I ); People v. Moore (Aug

. 26, 2021,

E073461 [ nonpub. opn], at p. 2 ( Moore II ).) 3 The trial court sentenced defendant to an

indeterminate term of 25 years to life for the murder, and to concurrent terms of four and

two years, respectively, on the two other counts

.

On January 9, 2019, defendant filed a petition for resentencing seeking to vacate

his murder conviction under section 1172.6

. ( Moore II

, s upra , at p. 3.)

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

2 While this appeal was pending, the Legislature amended and renumbered

section 1170.95 as section 1172.6

. (Stats. 2022, ch. 58, § 10.) We refer to section 1172.6

in this opinion, even though 1170.95 was the operative designation at the time of the

underlying proceedings.

3 On November 22, 2022, this court granted the People’s request for judicial

notice filed on October 28, 2022. In the order, this court took “JUDICIAL NOTICE of

the records in appellant’s prior appeals, case Nos. E038142 and E073461, including the

opinions from each case.”3

On February 5, 2019, the Peopl e filed a motion to strike defendant’s petition for

resentencing

. In the motion, the People argued that section 1172.6 is unconstitutional

. 4

On March 7 , 2019, defendant filed an opposition to the People’s m otion to strike the

petition

.

At the March 29, 2019

, hearing on defendant’s petition , the “court tentatively

ruled that it did not need to reach the constitutional question because defendant had failed

to state a prima facie case for relief

. Defendant requested a continuance to obtain the

reporter’s transcripts of the jury trial; the court granted defendant’s request.” ( Moore II

,

supra , at pp. 2

- 3}

At the continued hearing on August 16, 2019, the prosecutor and defense counsel

were present; defendant was in custody and not present at the hearing

. After arguments

from both defense counsel and the prosecutor, “Defendant’s petition pursuant to

PC[1172.6] [was] denied/stricken.” The court “found that defendant was ineligible for

resentencing b ecause he: (1) intended to kill the victim; (2) was a major participant as an

aider and abettor to the underlying felonies; and (3) may have been the actual shooter.”

( Moore II

, supra , at p. 3.)

On August 26, 2021

— a fter defendant appealed the trial cou rt’s ruling

— this court

reversed the trial court’s order denying defendant’s petition

. We remanded the case with

4 We need not address the constitutionality of section 1172.6 because it is not an

issue on appeal. However, we note that courts of appeal in California have consistently

rejected constitutional challenges to Senate Bill No. 1437 (SB 14 37 )

. (See People v.

Marquez (2020) 56 Cal.App.5th 40, 44, 46

- 51; People v. Lombardo (2020) 54

Cal.App.5th 553, 555; and People v. Superior Court (Dominguez) (2019) 42 Cal.App.5th

270, 276, 289.)4

instructions to issue an order to show cause and to h old an evidentiary hearing

. ( Moore

II

, supra , at pp. 13

- 19}

On February 2 5 , 2022, on remand and following an evidentiary hearing, the trial

court denied defendant’s resentencing petition

. The court also signed and filed its “Order

on Petition for Resentencing.” In its order, the court found that defendant had aided and

abetted the murder with intent to kill

. “By his conduct that included the words spoken,

the Defendant, with an intent to kill, aided and abetted the first degree murder of [the

victim]

. This Court finds by proof beyond a reasonable doubt that Defendant Daymon

Zachary Moor e is guilty of first degree murder.”

On May 2, 2022, defendant filed a timely notice of appeal

.

B. FACTUAL HISTORY 5

“Keshia Bennett lived in apartment 26 of a complex at 16th and Arrowhead in San

Bernardino, an upstairs unit. The morning of December 28, 2001, Bennett and another

resident, Joel Torres, saw defendant at the complex wearing white pants, a black leather

jacket, black boots, and a white visor.

“About 1:00 p.m. that day, Vernetta Rollins, a friend of Bennett’s, was in

apartment 26 while B ennett was out. At some point, [the victim] came through the door

of the apartment. He looked scared and told Rollins to call the police. Rollins went to

the bedroom and called the police. While still in the bedroom, she heard three voices

from the liv ing room, including [the victim]’s. After that, she heard about five gunshots.

5 The facts are taken from the unpublished opinion in Moo re I

, case No

. E038142

.5

Torres, downstairs, heard ‘four pops.’ He looked out his window and saw two men, one

of whom Torres was ‘pretty sure’ was defendant. That man was wearing white pants and

a bl ack leather jacket and was tucking a handgun in the back of his pants.

“An autopsy revealed [the victim] died of gunshot wounds to the chest and

abdomen.”

“Detective Carr interviewed defendant twice at the police station after the

shooting. The interviews were videotaped, and the tapes and transcripts of them were

introduced at trial.”

“The police arrested defendant on the evening of the shooting. About 10:50 that

evening, Detective Carr interviewed defendant after defendant waived his Miranda rights.

Defendant was wearing a tan shirt and blue pants or jeans.

“Defendant denied being at the apartment complex on the day of the shooting. He

said that about 12:00 or 1:00 p.m. on that day, he was at a house across the street from the

complex, visi ting with his friend Meetchie and some other people. Between 12:00 and

1:00, defendant borrowed a car and gave two women, Keisha and Mubby, a ride to a

pawnshop, where Keisha pawned a stereo. He drove back to Meetchie’s house and, after

awhile, called hi s brother Shane to pick him up. He spent the rest of the day and evening

at his mother’s house, where he was living.

“Carr told defendant he was going to investigate his story, and it was ‘gonna start

falling apart.’ He said he had physical evidence pro ving defendant had been in Bennett’s

apartment. Carr suggested defendant had gone into the apartment ‘with the wrong6

person,’ not knowing the shooting was going to happen, and ‘got kind of sucked into’ the

crime. The interview ended shortly after midnigh t.

“Later that day, Carr went to the pawnshop to which defendant had referred. No

one named Keisha had made a pawn on the day of the shooting. Carr also went to the

apartments at which defendant had said Keisha and Mubby lived. No one there knew

anyone named Keisha or Mubby.”

“About 6:15 p.m. the same day, Carr interviewed defendant again for about two

hours. After again reading defendant his Miranda rights, Carr told defendant he had gone

to the pawnshop, and defendant’s story had not checked out. H e also told defendant his

palm prints were on the inside of the door to apartment 26 and on a glass table inside the

apartment. Carr said defendant was ‘fucked’ unless he came up with a reason why he

was in the apartment.

“Defendant then said, ‘It was a robbery.’ He said that just before the shooting, a

man he did not know approached him on the street next to the complex. The man asked

defendant if he wanted to make some money. He said the intended victim sold drugs and

had a lot of money. He told defe ndant, ‘[J]ust follow me,’ so defendant followed him.

“The intended victim took off running, so they chased him into apartment 26, and

defendant pushed the door in. The other man produced a gun and told the victim to give

him his money and car keys. The victim tried to grab the gun, and the man shot him.

Defendant took off.

“After the interview ended, Carr asked defendant what he was wearing at the time

of the incident. Defendant said he was wearing white pants and a black jacket.”7

“Defendant testifi ed that after he woke up on the morning of December 28, 2001,

he went to an appointment with his probation officer. After that, he went to Meetchie’s

house. After defendant finished visiting, he walked across the street to the apartment

complex. He went to apartment 29 and visited Andrew, a man he knew from his former

employment. Defendant was wearing blue jeans, a white T

- shirt, and a tan shirt. He did

not tell Carr that he had been wearing a black jacket and white pants that day.

“After visiting apartment 29, defendant took Keisha and Mubby to the pawnshop.

Then he dropped Mubby off at her home and drove to his girlfriend’s house. His

girlfriend, Andrea, called his mother, and she came and picked defendant up. They went

to the grocery store and then home. Defendant did not leave the house after that except to

walk his dog that evening.

“Defendant further testified that after he was arrested, he was given nothing to eat

or drink. He slept on a cold cement slab with no blanket. He dra nk some water from a

sink in the cell and threw up.

“When Carr interviewed him the second time, defendant testified, he was tired.

He also was scared because Carr kept cussing at him. He falsely told Carr he had been

involved in the shooting because he was afraid the police were going to hurt him or beat

him, or something like that. He thought that if he told Carr what he wanted to hear, Carr

probably would let him go home. The details he told Carr about the shooting included

some facts he learned from his brother Kenny, some he learned from Carr himself, and

others he just made up.8

“ [D] efendant’s mother, testified that she picked defendant up at his girlfriend’s

house between 12:45 and 12:50 p.m. on December 28, 2001. Defendant was wearing

brown khak i pants, a white T

- shirt, and a brown and white checkered shirt. She stopped

at a Stater Brothers grocery store at Baseline and Waterman and then drove home,

arriving sometime after 1:30. Defendant did not leave the house until the police arrested

him th at night.

“Debra Caro was formerly involved with defendant’s brother and had

guardianship of his four children. Caro also was a good friend of [defendant’s mother]

.

She testified that on December 28, 2001, she let [defendant’s mother] use her car to go to

the store. She brought the car to [defendant’s mother] ’s house, and [defendant’s mother]

left the house in the car about 12:10 or 12:15 p.m.

“ [Defendant’s mother] returned at about 1:25 or 1:30 p.m. with bags of groceries

from Stater Brothers. Defend ant was in the car with her. Defendant was wearing white

pants and had no shirt on. He was ‘all sweaty.’

“Edgar Samayoa lived in apartment 24 of the complex at the time of the shooting.

About 1:00 p.m., he saw a man who appeared to be [the victim] bein g chased by two

black males, one wearing a black jacket and probably a visor. Samayoa did not recognize

defendant as either of the men who chased [the victim].”

“Carr testified that he talked to [defendant’s mother] when defendant was arrested

on the eve ning of the shooting. She was unable to account for defendant between 12:00

and 1:30 p.m. that day.9

“An officer interviewed Mr. Samayoa an hour or two after the shooting. Samayoa

said one of the men who pursued [the victim] was wearing a black jacket an d white pants

and had a light

- colored visor.

“The shooting location, [defendant’s mother] ’s house, defendant’s girlfriend’s

house, and the Stater Brothers at Baseline and Waterman were all within a radius of no

more than 10 miles.

“On October 3, 2003, de fendant called [his mother] from jail. The call was

recorded. Defendant said the trial was ‘not going good’ because of ‘what I said.’

Defendant said, ‘[T]hey just know I was involved with it,’ but they were not accusing

him of killing [the victim]. ‘The y know I didn’t do it, but I was there.’ ”

DISCUSSION

A

. T HE TRIAL COURT PROPERLY FOUND DEFENDANT INELIGIBLE

FOR RELIEF UNDER SECTION 117 2

. 6

On appeal, defendant contends that “the trial court’s determination that appellant

was ineligible for resentencing because he was a direct aider and abettor who acted with

the specific intent to kill, is based on speculation and conjecture, and not substantial

evidence.” Therefore, defenda nt argues that this “court should reverse this case again

with directions for the trial court to grant the petition, for lack of substantial evidence.”

For the reasons set forth post

, we affirm the court ’ s denial of defendant ’ s petition.

1. LEGAL BACKGROUND

SB 1437 became effective January 1, 2019

. “[SB 1437] modified California’s

felony murder rule and natural and probable consequences doctrine to ensure murder10

liability is not imposed on someone unless they were the actual killer, acted with th e

intent to kill, or acted as a major participant in the underlying felony and with reckless

indifference to human life.” ( People v. Cervantes (2020) 46 Cal.App.5th 213, 220.) As

relevant here, SB 1437 added section 189, subdivision (e), which provides, “A participant

in the perpetration or attempted perpetration of [qualifying felonies] in which a death

occurs is liable for murder only if one of the following is proven: [¶] (1) The person was

the actual killer

. [¶] (2) The person was not the actual k iller, but, with the intent to kill,

aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the

actual killer in the commission of murder in the first degree

. [¶] (3) The person was a

major participant in the underlying felony a nd acted with reckless indifference to human

life, as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e).) Section 190.2,

subdivision (d) provides, “Notwithstanding subdivision (c), every person, not the actual

killer, who, with reckless i ndifference to human life and as a major participant, aids,

abets, counsels, commands, induces, solicits, requests, or assists in the commission of a

felony enumerated in paragraph (17) of subdivision (a) which results in the death of some

person or person s, and who is found guilty of murder in the first degree therefor, shall be

punished by death or imprisonment in the state prison for life without the possibility of

parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been

found to be true under Section 190.4.”

SB 1437 also created a process through which convicted persons can seek

resentencing if they could no longer be convicted under the reformed homicide law

.

(§ 1172.6, subd. (a).) Section 1172.6, subdivision (a), provides in part, “A person11

convicted of felony murder or murder under the natural and probable consequences

doctrine or other theory under which malice is imputed to a person based solely on that

person’s participation in a crime , attempt ed murder under the natural and probable

consequences doctrine , or manslaughter may file a petition with the court that sentenced

the petitioner to have the petitioner’s murder, attempted murder, or manslaughter

conviction vacated and to be resentenced on any remaining counts.” (Italics added.)

Section 1172.6, subdivision (c), provides, “Within 60 days after service of a

petition

. . . , the prosecutor shall file and serve a response

. The petitioner may file and

serve a reply within 30 days after the pro secutor’s response is served

. These deadlines

shall be extended for good cause

. After the parties have had an opportunity to submit

briefings, the court shall hold a hearing to determine whether the petitioner has made a

prima facie case for relief

. If the petitioner makes a prima facie showing that the

petitioner is entitled to relief, the court shall issue an order to show cause

. If the court

declines to make an order to show cause, it shall provide a statement fully setting forth its

reasons for doin g so.” If the petitioner makes a prima facie showing he is eligible for

relief under section 1172.6, the court shall hold an evidentiary hearing

. (§ 1172.6, subds.

(c) & (d)(1).) At this hearing, either party may present new evidence and the prosecution

bears the burden of proving the petitioner could still be convicted beyond a reasonable

doubt

. (§ 1172.6, subd. (d)(3).)

Effective January 1, 2022, Senate Bill No

. 775 amended former section 1170.95 to

expand its scope to those convicted of “attempted murder under the natural and probable

consequences doctrine.” (§ 1172.6, subd. (a).)12

In People v. Clements (2022) 75 Cal.App.5th 276, 294, 298, this court held that an

appellate court reviews a trial court’s finding that a petitioner is inelig ible for

resentencing at the conclusion of an evidentiary hearing for substantial evidence

. “We

review the trial judge’s factfinding for substantial evidence

. [Citation.] We ‘ “examine

the entire record in the light most favorable to the judgment to det ermine whether it

contains substantial evidence

— that is, evidence that is reasonable, credible, and of solid

value that would support a rational trier of fact in finding [the defendant guilty] beyond a

reasonable doubt. ” ’ [Citation.] Our job on review i s different from the trial judge’s job

in deciding the petition

. While the trial judge must review all the relevant evidence,

evaluate and resolve contradictions, and make determ in ations as to credibility, all under

the reasonable doubt standard, our job is to determine whether there is any substantial

evidence, contradicted or uncontradicted, to support a rational fact finder’s findings

beyond a reasonable doubt

. ” ( Id. at p. 298.)

2. THE COURT’S RULING IS SUPPORTED BY SUBSTANTIAL

EVIDENCE

In this case, defendant contends the court’s ruling “can only be based on

speculation, not substantial evidence.” As will be discussed post

, we disagree with

defendant and find that substantial evidence supports the trial court’s findings.

To support his argument, defendant contends that the trial court improperly relied

on evidence that Rollins heard defendant say “shoot him,” or “kill him,” because it was

based on speculation

. Defendant states, “[i]t is true that Rollins testified to hearing three

men in the living room while she was hiding in the bedroom with the door closed, one of13

whom sounded like the victim [.] [Citation.] It is also true that she testified that she heard

two other mens’ [ sic ] voices say other things, one younger

- sounding voice an d one older

sounding voice

. [Citation.] She testified that she heard [the victim] say ‘Don’t kill me,

and also that one of the men said ‘shoot him, kill him’ a few times and the other man

asked for a pillow

. [Citation.] The problem with this testimony, of course, is that there

was absolutely no evidence that [defendant] was the person who said, kill him, or shoot

him

. ”

We agree with the People that defendant “does not challenge the underlying facts

as established by the trial transcripts and the exhibits, and as recounted by the trial court;

instead he challenges the trial court’s interpretation of those facts.”

Contrar y to defendant’s assessment of the trial testimony, the evidence amply

support s the trial court’s finding that defendant aided and betted the murder with an intent

to kill.

First, it is undisputed that defendant was at the scene of the murder

. Defendant

was seen at the apartment complex before and after the murder, and defendant admitted

that he was at the scene of the mu rder to the interviewing detecti ve and to his mother

.

Moreover, there is no question that there were only three men involved in the

mu rder

— the victim, defendant, and a third individual

. Rollins testified that she only

heard three voices

. Defendant confirmed Rollins’s testimony because defendant told a

detective that there were only three men involved

— the victim, an unidentified male, and

defendant

.14

Additionally, according to Rollins, the man who said, “Just kill him” was a

different individual than the person who said, “Give me a pillow

, ” just prior to shooting

the victim. We note that Rollins could not identify the two voices, and there is nothing in

the record that voice identification methods were employed in an effort to identify the

voices.

However

, if defendant were not the shooter, as defendant claims, the only

reasonable conclusion would be that defendant was the person who said, “Just kill hi m

, ”

since two different individuals said the two phrases. Therefore, by encouraging the

actual shooter to kill the victim, defendant directly aided and abetted the murder, as the

trial court found

.

In its order, the trial court quoted excerpts from the reporter’s transcript of the trial

wherein Rollins gave her testimony regarding the three voices she heard

. The trial court

also went over defendant’s statement talking about the three men present

. The cour t

noted that defendant “corroborated Rollins’s testimony when he told the detective that the

other perpetrator said ‘Give me a pillow’ [ citation ] during the incident

. [And,] [t]he

person that said ‘Give me a pillow’ was not the same as the person that sai d ‘Shoot him,

kill him.’ If the Defendant was not the person that said ‘Give me a pillow,’ then he had

to have been the one that told the killer to ‘Shoot him, kill him.’ ” In a footnote of the

order, the court also noted that at a hearing, “there was so me discussion t hat the

Defendant had to be either 1) the actual killer or 2) an actual and direct aider and abettor

because he spoke the words ‘Shoot him, kill him.’ Either way, the Defendant is guilty of

murder

. The evidence does not allow for any alter native conclusion.”15

Before making its ruling, the court went into further detail regarding its finding

that defendant acted with an intent to kill :

“The issue presented by the petition is whether the evidence proves beyond a

reasonable doubt that Defenda nt was ‘the actual killer’ [citation]

, or ‘was not the actual

killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced,

solicited, requested, or assisted the actual killer in the commission of murder in the first

degree’ [citatio n]

, or ‘was a major participant in the underlying felony and acted with

reckless indifference to human life’ [citation]

. The evidence proves that the Defendant

was the person that spoke the words, ‘Shoot him, kill him’ to Defendant’s co

- part in

crime

— the actual killer

. The intent to kill is inherent in t h e words spoken

. By his

conduct that included the words spoken, the Defendant

, with an intent to kill, aided and

a betted the first degree murder of [the victim] .”

The court then went on to find “by proof beyond a reasonable doubt that

Defendant

. . . is guilty of first degree murder” and denied defendant’s petition for

resentencing

.

After examining the record in the light most favor able to the trial court’s order, we

find that there is reasonable, credible and solid evidence to support the trial court’s

finding that defendant, with an intent to kill, aided and abetted the first degree murder of

the victim

. Again, we note that although “ the trial judge must review a ll the relevant

evidence, evaluate and resolve contradictions, and make determinations as to credibility,

all under the reasonable doubt standard, our job is to determine whether there is any

substantial evidence, contradicted or uncontradicted, to support a rational fact finder’s16

findings beyond a reasonable doubt

. ” ( People v. Clements

, supra

, 75 Cal.App.5th at p.

298.) Here, based on the above, we find that the court’s finding is supported by

substantial evidence

.

Therefore, the trial court properly denied defendant’s petition for resentencing

.

DISPOSITION

The order denying defendant’s petition is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

RAMIREZ

P. J.

RAPHAEL

J.