Filed 1/27/22 P. v. Moses 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

DAVID DESHAWN MOSES,

Defendant and Appellant.

F082061

(Super. Ct. No. BF131808A)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Kern County. Charles R. 

Brehmer, Judge.

Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

Respondent.

-ooOoo-

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

STATEMENT OF APPEALABILITY

This appeal is from an order denying appellant David DeShawn Moses’s motion to 

reduce his sentence that finally disposes of all issues between the parties and is 

authorized by Penal Code section 1237, subdivision (b).

1

STATEMENT OF THE CASE

As stated by this court in our opinion in Moses’s first appeal (consolidated case 

numbers F066160 & F066278), “A jury found defendants Katila Ann Jean Nash and 

David Deshawn Moses guilty of first degree murder (Pen. Code, [fn. omitted] §§ 187, 

subd. (a), 189) and found true the special circumstance that the murder was committed 

while defendants were engaged in the commission or attempted commission of burglary 

(§ 190.2, subd. (a)(17)(G)). At the time of the offense, Nash was 15 years old and Moses 

was 17 years old, and they were tried as adults. Nash was sentenced to 25 years to life in 

prison, and Moses was sentenced to life in prison without the possibility of parole 

(LWOP).” The murder occurred on April 14, 2010.

In its fourth opinion in this matter, filed on May 2, 2018, this court remanded 

Moses’s case to the juvenile court with directions to conduct a transfer hearing pursuant 

to Welfare and Institutions Code section 707, with a further order that if, at the transfer 

hearing the juvenile court determines it would have transferred Moses to a court of 

criminal jurisdiction, the judgment should be reinstated and the court should resentence 

him in light of People v. Gutierrez (2014) 58 Cal.4th 1354, pursuant to which the court 

could exercise its discretion to resentence Moses to a term of 25 years to life in prison in 

lieu of the previous LWOP sentence.

Adult criminal proceedings were reinstated on November 6, 2019. 

The People filed a statement in aggravation on June 25, 2020 and Moses filed a 

points and authorities for youthful offender sentencing on October 19, 2020, attached to 

1 All statutory references are to the Penal Code unless otherwise stated.
3.

which were psychological reports by Dr. Gary A. Longwith and Dr. McCoy Dean 

Haddock. Dr. Longwith’s report concluded, “Given the history of this case, and his longstanding mental illness that predated the commitment offense, it is my opinion alternative 

sentencing may be appropriate. Although [Moses] may lack some emotional maturity at 

this point, his neurological development is likely established. He is less of a risk of

violence today than he was at age 17-years-old.” Dr. Haddock’s evaluation, contrarily, 

concluded “It is my professional Clinical Opinion that Mr. David Moses remains ‘At 

Risk’ of further Violent Behavior and Sexual Violence at this time from his history, 

CDC&R history and recent history in the Kern County Jail.”

The court conducted a resentencing hearing on October 21, 2020. The People 

introduced Exhibits 1 and 2, incident reports concerning Moses while in Kern County Jail 

awaiting resentencing on June 29, 2020 and September 12, 2019. After hearing 

arguments and statements from the victim’s family, the court reinstated Moses’s LWOP 

sentence and awarded him presentence credit for 3,840 actual days in custody. 

On November 16, 2020, Moses filed a timely notice of appeal.

STATEMENT OF FACTS2

On the afternoon of April 14, 2010, Andrew Masengale visited his grandmother 

Dorothy Session, at her house on Camino Sierra, located in the greater Bakersfield area.3 

Session was not feeling well, and she told Masengale she was going to take some Tylenol 

and lie down for a while until she had to pick up her son John at work. Around 

3:15 p.m., Masengale left the house, locking the back door as he left. He always used the 

back door at Session’s house, as did everyone who knew her. Session usually left the 

2 The Statement of Facts is quoted verbatim, without quotation marks, from this 

court’s opinion in Moses’s first appeal. 

3 All further dates in this section occurred in 2010.
4.

back door unlocked when she was home so she could tend to her garden, but she would 

lock the back door if she were going to lie down. The front door was always locked.

Neighbors of Session reported seeing a man and two women in the area that 

afternoon. Patricia Sandoval lived on a cul-de-sac off Camino Sierra. Sometime 

between 2:00 and 4:00 p.m., she noticed her dogs were barking, and she went to the front 

door. She saw a male at her door and two females standing at the front of her driveway. 

Sandoval opened the door and asked if she could help them. One of the women asked if 

Matthew was there. Sandoval told them no one by that name lived there, and the three 

walked away. Later that night, Sandoval reported this incident to law enforcement. She 

described the man as Black, about six feet tall, wearing a red shirt, black gym shorts, and 

about 19 or 20 years old. The woman who spoke to Sandoval was short, a little wide and 

her hair was colored and worn in braids. The other woman was taller and wider than the 

woman Sandoval talked to.

Janet York lived two doors down from Session on Camino Sierra. Around 

4:00 p.m., her dog started barking, and York noticed a young woman standing at the end 

of her front porch and looking over her fence. York thought the woman was Hispanic but 

agreed she could have been light-skinned Black. The woman asked if Erika was there. 

York also saw a young man and woman standing at the front of her driveway by the 

street. The man appeared to be Black and about 19 or 20 years old; the woman appeared 

to be Hispanic or light-skinned Black and about the same age. York told the woman on 

her porch that no one named Erika lived there, and the woman left.

Kimbria Lopez’s parents were Session’s next door neighbors on Camino Sierra. 

That day, Lopez took her mother shopping, and the two of them returned to Lopez’s 

parents’ house around 3:45 to 4:00 p.m. At that time, Lopez saw Session on her front 

porch; Session retrieved her mail, walked back inside her house, and closed the front 

door. Lopez’s son Jacob, who was 14 years old, did not go shopping with his mother and 

grandmother, and instead stayed at Lopez’s parents’ house all afternoon with his 
5.

grandfather. At some point, Jacob went to the bathroom, which had a window looking 

out on Session’s driveway and house. Through the bathroom window, he saw a woman 

walking in the middle of Session’s driveway. She wore an orange shirt and jeans. At 

trial, he identified Angelique [Nash] as possibly the woman he had seen near Session’s 

house.

Around 6:00 p.m., Masengale received a call from his mother asking him to check 

on Session because she had not picked up his Uncle John from work. Masengale and his 

friend Megan Winder drove to Session’s house. They entered through the back door, 

which was closed but unlocked. There were no signs of forced entry. Masengale noticed 

a buzzer for the oven was on, and he turned it off. He stepped on Session’s glasses, 

which were on the floor. Then he noticed some blood on a chair and he walked around 

and found Session lying on the floor in the dining room. There was dried blood all over 

her face and she was throwing up blood. She was still conscious.

Winder called 911, and Masengale spoke to the dispatcher. Winder went outside 

where she saw a California Highway Patrol (CHP) officer and flagged him down. 

Masengale starting talking to Session. He asked her if she fell, and she said no. She said 

a Black man and Black woman were in the house and they wanted money. She asked 

Masengale to check for her purse. He found her purse in a dresser drawer in her 

bedroom. It appeared the bedroom had not been touched and nothing had been taken 

from her purse. Nothing appeared to be out of place in the house.

Richard Pierce was the CHP officer Winder flagged down. He arrived at 

Session’s house at 6:35 p.m. Pierce knelt down beside Session and tried to make sure her 

airway was open. He asked Session “who had done this,” and eventually Session said it 

was a young Black man. Pierce asked “how many had done this,” and she responded 

two. He asked her to describe the second man, and Session stated it was a female. She 

did not identify the woman’s race or ethnicity.
6.

Kern County Sheriff’s deputy Joe Weiss responded to Session’s house based on a 

dispatch report of a victim beaten in her home. In the house, he observed Pierce giving 

Session first aid. Weiss asked Session “who did this” and she said a Black male and a 

Black female. Within a few minutes, additional law enforcement officers and ambulance 

and fire department personnel arrived.

Session was 81 years old. She was taken to Kern Medical Center by ambulance 

and died later that night.

Criminalist Jeanne Spencer arrived at Session’s house shortly after 10:00 p.m. to 

investigate the crime scene. She observed blood spatter and blood stains in the den and 

kitchen. In the den, there were blood stains on the floor in front of the fireplace, in front 

of a chair next to the fireplace, and near another chair that was next to the entry to the 

dining room. Blood was also spattered on the fireplace. A right shoe was found in the 

den near the entry to the kitchen. A tooth and what appeared to be dental hardware were 

lying on the floor near the fireplace. A left shoe and a tooth were found in another area 

of the den near the entry to the dining room. There were more blood stains in the dining 

room. In the kitchen, there was blood spatter on the side of the stove and at the threshold 

to the den. A Wave brand cigarette butt was found in the kitchen near the back door and 

collected as evidence.4

Based on the pattern of blood spatter, Spencer concluded there had been at least 

two events in the house: one event in the kitchen area by the entry to the den and another 

event in the den near the fireplace. Spencer characterized most of the blood spatter in 

these areas as “impact spatter,” meaning the spatter was likely caused by a forceful event 

4 At trial, there was testimony that Session did not allow smoking in or near her 

house. In addition, a criminalist was able to find a mixture of DNA on the filter end of 

the cigarette butt, and she testified that she could not exclude any of the three defendants 

as contributors to the DNA on the cigarette.
7.

such as a punch to the victim. She also observed linear marks on the floor suggesting the 

victim had been dragged a short distance in the den near the entry to the kitchen.

Forensic pathologist Lesley Wallis-Butler conducted an autopsy of Session the 

next day. Wallis-Butler observed “quite a bit of facial trauma.” Session had a fractured 

nose, significant bruising over both eyes, and an abrasion on the center of her nose with a 

laceration that extended down the right side of her nose. She had a laceration that tore 

through the outer and inner part of the upper aspect of her lip and another laceration to 

the inner aspect of her upper lip. Session appeared to have been struck with such force 

that it tore the tissues under her lip and nose. She also had a laceration to her lower lip 

and a contusion to her lower lip. Session had a small contusion on her chest and bruises 

on the backs of her hands, her forearms, and her right elbow. In the internal examination, 

Wallis-Butler saw injuries consistent with falling and striking the back of the head. She 

concluded the cause of Session’s death was blunt force head trauma. Based on the facial 

injuries, Wallis-Butler believed Session had been struck at least twice.

Jason Balasis, a detective in the robbery-homicide unit of the Kern County 

Sheriff’s Office, was the lead investigator for the case. He received his assignment 

around 8:00 p.m. on April 14, and he went to Session’s house that night. He interviewed 

Kimbria and Jacob Lopez, York, John Session, and Masengale.

The next day, law enforcement received information about the crime from Cecilia 

Martinez. Martinez lived in a converted garage behind a main house on Center Street 

(the Center Street house). Her adult neighbors at the Center Street house were Sonja 

Arnold and Roxy Dukes. According to Martinez, “quite a few kids” (teenagers and 

young adults) also stayed at the Center Street house. Arnold’s niece, Nefertiti Patterson, 

and Patterson’s child lived there. Arnold’s nephew, Darontrell Gage, and Jesse Estrada 

lived there. Patterson and Gage were half siblings. Moses was Patterson’s first cousin, 

and Moses had been staying at the Center Street house for about six weeks. In addition, 

Patterson and Angelique had known each other for 10 years and were best friends, and 
8.

Angelique would visit the Center Street house. On April 15, Martinez received 

information about what happened to Session from Estrada and a niece of Arnold’s named 

Tiarny. Based on what Estrada and Tiarny told her, Martinez called a secret witness 

hotline.

As a result of the secret witness tip, Balasis interviewed Martinez. After speaking 

with Martinez, Balasis interviewed Patterson, Gage, Arnold, and Estrada, all residents of 

the Center Street house.

Patterson told Balasis she spoke to the three defendants on the afternoon of 

April 14 before 5:00 p.m. The majority of her conversation was with Angelique. 

Angelique told Patterson that she was going to rob the old lady until the lady started 

screaming. Angelique said she left the house because the old lady started screaming. 

Patterson reported that, during her conversation with Angelique, [Katila] Nash was 

crying and Moses was shaking his head and repeatedly saying, “I’m sorry, cuz.”

Patterson stated that Moses said he thought the lady was still alive but he was not 

sure. Moses told Patterson he heard the lady making noises. Angelique told Patterson 

that Moses had knocked the old lady over. Angelique said that she left, but went back for 

Nash because she could not leave her sister, that she was going to take something from 

the victim’s home, but she did not because the lady scared her by screaming. Nash said

she did not take anything from the house. Patterson told Balasis that Angelique was 

wearing an orange shirt. She also reported that Moses and Nash smoked cigarettes and 

she was not sure if Angelique smoked. Patterson did not think any of the defendants had 

been drinking or smoking when she talked to them.5

5 At trial, Balasis testified about what Patterson told him as described. Patterson 

was also called as witness. She testified she remembered talking to Balasis and generally 

did not dispute she made the statements as Balasis testified. However, Patterson denied 

or claimed not to remember the underlying facts. For example, Patterson testified she 

could not remember whether Angelique told her what Moses had done, even though she 

agreed she told the police what he had done. In a similar vein, Patterson denied she saw 
9.

Balasis also interviewed Gage. One of the first things Gage told Balasis was that 

he did not want to go to court and he did not want to be involved. Gage said he had 

contact with the three defendants on April 14. He indicated that he received most of his 

information from Moses. Gage stated that Moses told him he entered a lady’s home and 

hit her. Moses said the lady yelled. Gage reported that Moses seemed scared and uneasy 

and Nash was crying.6

On April 17, Balasis assisted in the arrest of Nash and Angelique at a hotel. An 

orange shirt was found among their clothes. Balasis interviewed Nash and Angelique the 

day they were arrested. Moses turned himself in later that day, and Balasis interviewed 

him the next morning.

Balasis interviewed Angelique first. She told him they were looking for 

Matthew’s house to smoke weed. They knocked on doors looking for Matthew. 

Angelique stated they went to three houses. At the first house, a lady told them Matthew 

did not live there. Angelique said a Mexican lady answered the door at the house she 

went to prior to the victim’s house.

Angelique told Balasis that no one answered the front door at the victim’s house. 

Angelique stayed outside and stood by a truck. She stated she walked to the back part of 

the victim’s house and then went back to the front of the house. She heard someone 

screaming, “Oh, Lord, help me,” but she did not see the victim. She was wearing an 

orange shirt. Angelique told Balasis that, after the incident, she went to the Center Street 

house and told Patterson what happened. Balasis told Angelique that Patterson had told 

Nash crying, and she could not remember whether Moses said, “I’m sorry cuz,” but she 

agreed she told the police these things.

6 Gage’s statements to Balasis were introduced at trial through Balasis’s 

testimony. Gage was also called as witness, but he testified generally that he did not 

recall what Moses told him or what he (Gage) said during his interview with Balasis. For 

example, he testified that he did not remember whether Moses told him that the old lady 

yelled and he also did not remember his conversation with the police.
10.

him Angelique said she was looking for a house to steal from, but Angelique denied 

saying this to Patterson.

Next, Balasis spoke to Nash. She told him she was supposed to be living at a 

group home but she was staying with her mother in Bakersfield on Niles Street. She said 

they walked down the street knocking on doors and asking for Matthew. She admitted 

that she went inside the victim’s home.

Nash remembered speaking to a lady with a dog. She talked to a Mexican woman 

who told her Matthew did not live there. At one point during the interview, Nash told 

Balasis that the victim answered the back door and Nash asked if she could use the 

telephone. Nash said she did not take anything from the home. She told Balasis that she 

saw the victim and began to cry. She also said she was scared and she should have called 

the police.

Balasis asked Nash whether she approached a house and asked for Erika, and she 

remembered doing so. Initially, Nash denied she went to the victim’s house to break in. 

Balasis, however, told her he believed she went to steal things, and Nash admitted this 

was true. Nash said she intended to make sure no one was at home before she went to the 

back of the victim’s house and the victim surprised her. She stated that, inside the house, 

she picked up the phone to call her sister, Sherina, to come get her. Nash told Balasis 

that the victim was making noises and asking for help.

Balasis interviewed Moses the next day. Moses told him that he had run away 

from a group home and he was originally from Bakersfield. He was staying at the Center 

Street house. He stated he smoked marijuana on April 14 and he was looking for 

someone named Matthew. Moses told Balasis he was high on KJ7 and did not remember 

7 Balasis explained that KJ refers to phencyclidine (PCP) and is often mixed with 

marijuana and smoked.
11.

what happened that day, although he did remember going to houses near the victim’s 

house and knocking on doors and asking for Erika.

Moses also told Balasis that he smoked a blunt8 and after the high faded, he went 

to the Center Street house to meet up with Patterson. He said he heard details of the 

crime and saw his photograph on the television news on April 17 and 18, and he was 

scared and did not know what to do.

Moses told Balasis that he probably told Gage what he had done because he was 

scared. Moses told Gage he hit the lady two times.

Balasis noticed Moses’ right hand looked different from his left hand. A knuckle 

on his right hand was very swollen. There was redness and it appeared to have fresh 

scabbing.

Later in the interview, Moses admitted that he wanted to break into a house to get 

money for food. He said he went to the victim’s home and asked to use the phone. He 

was wearing gloves. Moses stated that he was not planning on killing anyone. He 

thought the victim had a portable emergency pager that would call 911, and he did not 

know if she pressed the button. The victim went to the back door. Moses asked to use 

her telephone to get a ride. He said the victim let him in the house but then she looked 

like she was scared of him. At that point, Moses thought she may have pushed a button 

on a device to call the police.

Moses told Balasis he struck the victim twice. The first time she was standing and 

the second time she was on the ground. She was saying, “oh, God,” and calling for help. 

He stated he dragged her from the kitchen into the living room area because he did not 

know if anyone else was in the house. Moses thought the victim was still alive because 

she was making noises when he left the house. He told Balasis he was at the victim’s 

8 A blunt typically refers to a marijuana cigarette with a cigar wrapper. Moses 

told Balasis he walked down Niles Street and bought the blunt from some Mexicans.
12.

house to get money to get something to eat. He said he asked to use the phone because 

the victim surprised him. Moses denied he had a weapon. He said he burned the shoes 

he wore that day because he was scared and he did not want to get caught.

Call records for Session’s telephone number showed a call from her phone was 

made to a cell phone number for Moses’ uncle, Mike Patterson, at 4:17 p.m. on April 14. 

The call lasted nine seconds.

Defense

[¶] ... [¶]

Psychologist Thomas Middleton evaluated Moses. Moses’ IQ of 84 fell in the 

borderline range. Moses was placed in a group home when he was 13, and he was treated 

for ADHD. Middleton diagnosed Moses with ADHD, combined type, impulse control 

disorder, not otherwise specified (NOS), depressive disorder, NOS, polysubstance abuse 

in institutional remission, physical abuse or neglect of child as victim, sexual abuse of 

child as perpetrator, borderline intellectual functioning, and personality disorder, NOS, 

with antisocial and borderline traits and paranoid and dependent features. Middleton was 

presented the hypothetical that “an individual enters a residence and at the time or while 

inside of the residence the individual strikes another because that individual panicked and 

thought someone was [going to] push a button—a Life Alert type of a button.” He gave 

his opinion that this hypothetical behavior was entirely consistent with Moses’ diagnoses. 

Assuming the hypothetical individual had taken PCP, the conditions could “result in 

extreme impulsivity and angry, unplanned, aggressive behavior.”

APPELLATE COURT REVIEW

Moses’s appointed appellate counsel has filed an opening brief that summarizes 

the pertinent facts, raises no issues, and requests this court to review the record 

independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes 

the declaration of appellate counsel indicating Moses was advised he could file his own 

brief with this court. By letter on April 20, 2021, we invited Moses to submit additional 
13.

briefing. On June 17, 2021, Moses responded to our invitation with a three-page letter 

which this court has read and considered. 

Having undertaken an examination of the entire record, we find no evidence of 

ineffective assistance of counsel or any other arguable error that would result in a 

disposition more favorable to Moses.

DISPOSITION

The trial court’s October 21, 2020, order denying Moses’s motion to reduce his 

sentence is affirmed.