Filed 12/8/15 P. v. Moore CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

ROOSEVELT MOORE,

Defendant and Appellant.

 B260667

 (Los Angeles County

 Super. Ct. No. NA007617)

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard 

R. Romero, Judge. Affirmed.

David H. Goodwin, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Lance Winters, Senior Assistant Attorney General, for Plaintiff and Respondent.
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I. INTRODUCTION

Defendant, Roosevelt Moore, appeals from a resentencing following a grant of a 

federal habeas corpus petition. Defendant was convicted of: nine counts of forcible rape 

under Penal Code section 261, subdivision (a)(2)1; seven counts of forcible oral 

copulation under section 288a, subdivision (c); two counts of attempted second degree 

robbery under sections 664 and 211; two counts second degree robbery under section 

211; two counts of kidnapping with intent to commit a sex offense under sections 207 

and 667.8, subdivision (a); one count of sexual penetration with a foreign object under 

section 289; and one count of unlawful driving of a vehicle under Vehicle Code section 

10851. In addition, firearm use findings were returned pursuant to sections 12022.3, 

subdivision (a) and 12022.5, subdivision (a). Defendant received a sentence of 254 

years, 4 months in state prison. Defendant was 16 years old at the time he committed his 

crimes.

On May 17, 2010, the United States Supreme Court issued its opinion in Graham 

v. Florida (2010) 560 U.S. 48, 74-75 (Graham). Defendant filed habeas corpus petitions 

in state and district courts, citing Graham. All were denied. The United States Court of 

Appeal for the Ninth Circuit reversed the district court’s denial of defendant’s federal 

habeas corpus petition. (Moore v. Biter (9th Cir. 2013) 725 F.3d 1184, 1186-1194.) The 

district court then granted defendant’s habeas petition and ordered that he be resentenced 

in the trial court consistent with Graham. 

On October 24, 2014, defendant was resentenced. Defendant received the same 

sentence of 254 years, 4 months in state prison. But to comply with Graham, the trial 

court ordered the Department of Corrections and Rehabilitation to provide defendant a 

full and meaningful parole hearing on his sixty-second birthday. We affirm the 

judgment.

 

1

Further statutory references are to the Penal Code unless otherwise stated.
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II. BACKGROUND

We discussed the facts underlying defendant’s criminal convictions in defendant’s 

appeal from the 1992 judgment. (People v. Moore (May 27, 1993, B065363) [nonpub. 

opn.].) We briefly summarize the facts here. Defendant separately victimized four 

women over a five-week period. (Id. at p. 2.) At approximately 6 p.m. on February 1, 

1991, Leslie H. was walking home when defendant approached her with a gun. (Id. at p. 

3.) He ordered her to walk into a nearby alley. (Ibid.) While continually threatening to 

shoot her, defendant raped her three times, sodomized her and twice forced her to orally 

copulate him. (Ibid.) He asked her if she had any money and ordered her to empty her 

pockets when she stated she did not. (Ibid.) Defendant then told her to leave. (Ibid.)

On March 4, 1991, at approximately 1:30 p.m., Therese M. was inspecting a house 

in Long Beach. (People v. Moore, supra, B065363, at p. 4.) As she stood in the 

doorway, defendant approached her, pulled out a gun, and ordered her into the house. 

(Ibid.) He pushed her into the bathroom and ordered her to undress. (Ibid.) Defendant 

raped her four times and forced her to orally copulate him five times. (Ibid.) Defendant 

asked her for money and she stated she did not have any. (Ibid.) He wanted her to go to 

the bank and withdraw money from an automatic teller machine. (Ibid.) She stated she 

would give defendant her card but she would not go with him. (Ibid.) He then left the 

room. (Ibid.) She then shut the door and started to yell and defendant fled. (Ibid.)

On March 5, 1991, at approximately 8 p.m., Nancy W. was standing in an alley 

behind her garage. (People v. Moore, supra, B065363, at p. 5.) Defendant drove up, 

pointed a gun at her and ordered her into the car. (Ibid.) He warned her that if she made 

any noise he would blow her head off. (Ibid.) Defendant demanded more money from 

her. (Ibid.) She offered to go to the automatic teller machine with him. (Ibid.) 

Defendant drove her to another alley and forced her to orally copulate him. (Id. at pp. 5-

6.) Nancy W. at one point rolled out of the car and ran away, abandoning her purse, 

earrings and groceries. (Id. at p. 6.)
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On March 7, 1991, at approximately 6:30 p.m., Patricia S. was walking from her 

car to her apartment when defendant approached her and pointed a gun at her. (People v. 

Moore, supra, B065363, at p. 6.) He ordered her to take him to her apartment. (Ibid.) 

Defendant warned her that if she said anything he would kill her. (Ibid.) He took $39 

from her. (Ibid.) Defendant ordered her to undress. He then ordered her to orally 

copulate him two times, penetrated her vagina with a foreign object and raped her twice. 

(Ibid.) Defendant returned some of the money and asked if she would go on another 

“date” with him. (Ibid.) He later left the apartment. (Id. at p. 7.)

Following a jury trial, defendant was convicted as we have noted. We affirmed

the judgment and defendant’s sentence of 254 years, 4 months in state prison. (Id. at p. 

15.) On May 17, 2010, the United States Supreme Court filed its opinion in Graham. In 

Graham, the high court held states could not impose a life without parole sentence on 

juvenile offenders who did not commit a homicide. (Graham, supra, 560 U.S. at p. 82.) 

On September 2, 2010, defendant filed a habeas corpus petition in the trial court asserting 

his sentence was unlawful. The trial court denied defendant’s habeas corpus petition.

We also denied defendant’s habeas corpus petition. (In re Moore (Jan. 24, 2011, 

B227096) [nonpub. opn.].) Defendant subsequently filed a federal habeas petition which, 

as noted, the federal district court denied. (Moore v. Biter, supra, 725 F.3d at p. 1186.)

On August 7, 2013, the United States Court of Appeals for the Ninth Circuit 

issued a published opinion reversing the district court’s order denying defendant’s habeas 

corpus petition. (Moore v. Biter, supra, 725 F.3d at p. 1186.) Citing Graham, the Ninth 

Circuit panel held defendant’s 254 years, 4 months term was materially indistinguishable 

from a life sentence. (Id. at pp. 1191-1192.) The Ninth Circuit panel ordered the district 

court to grant defendant’s habeas corpus petition. (Id. at p. 1194.) On September 16, 

2013, the Governor signed Senate Bill No. 312 which enacted section 3051. (Stats.2013, 

ch. 312, § 4.) Section 3051 mandates parole hearings for person such as defendant who 

receive sentences which are the functional equivalent of a life without parole term. On 

July 30, 2014, the federal district court issued a conditional writ of habeas corpus giving
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California 90 days in which to resentence defendant in a manner consistent with Graham

or to release him. 

On October 24, 2014, the trial court resentenced defendant to 254 years, 4 months 

in state prison. The trial court reconsidered all the arguments presented at the original 

sentencing and the mitigating circumstances including defendant’s age, capacity to 

change and diminished moral culpability. The trial court also ordered the Department of 

Corrections and Rehabilitation to provide defendant a full and meaningful parole hearing 

on his sixty-second birthday. This appeal followed.

III. DISCUSSION

We appointed counsel to represent defendant on appeal. After examination of the 

record, appointed appellate counsel filed an “Opening Brief” in which no issues were 

raised. Instead, appointed appellate counsel requested we independently review the 

entire record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. (See 

Smith v. Robbins (2000) 528 U.S. 259, 277-284.) On July 6, 2015, we advised defendant 

that he had 30 days within which to personally submit any contentions or arguments he 

wished us to consider. On August 6, 2015, defendant timely filed his supplemental brief.

We have examined the entire record and find no reasonably arguable contentions 

favorable to defendant are present. Appointed appellate counsel has fully complied with 

his obligations to defendant.

We now turn to defendant’s pro se contentions. A sentencing choice is reviewed 

for an abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847; People v. 

Superior Court (Alvarez) (1997) 14 Cal.4th 968, 976-977.) Defendant contends the trial 

court erred by sentencing him to the same term. We disagree. Defendants who 

committed nonhomicide crimes while juveniles must be provided a meaningful 

opportunity to secure parole during their lifetime. (Graham, supra, 560 U.S. at p. 75;

People v. Caballero (2012) 55 Cal.4th 262, 268-269.) The trial court resolved that issue 
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by ordering defendant to receive a full and meaningful parole hearing on his sixty-second 

birthday. 

Defendant contends the trial court lacked authority to impose a future parole 

hearing date on his sixty-second birthday. Our Supreme Court addressed the issue of 

how to resentence juvenile offenders sentenced to de facto life without parole in People 

v. Caballero, supra, 55 Cal.4th at pages 268-269. Our Supreme Court held: “Consistent 

with the high court’s holding in Graham, supra, 560 U.S. 48, we conclude that 

sentencing a juvenile offender for a nonhomicide offense to a term of years with a parole 

eligibility date that falls outside the juvenile offender’s natural life expectancy constitutes 

cruel and unusual punishment in violation of the Eighth Amendment. Although proper 

authorities may later determine that youths should remain incarcerated for their natural 

lives, the state may not deprive them at sentencing of a meaningful opportunity to 

demonstrate their rehabilitation and fitness to reenter society in the future. Under 

Graham’s nonhomicide ruling, the sentencing court must consider all mitigating 

circumstances attendant in the juvenile’s crime and life, including but not limited to his 

or her chronological age at the time of the crime, whether the juvenile offender was a 

direct perpetrator or an aider and abettor, and his or her physical and mental 

development, so that it can impose a time when the juvenile offender will be able to seek 

parole from the parole board. The Board of Parole Hearings will then determine whether 

the juvenile offender must be released from prison ‘based on demonstrated maturity and 

rehabilitation.’ (Id. at p. 75.) . . . Because every case will be different, we will not 

provide trial courts with a precise time frame for setting these future parole hearings in a 

nonhomicide case. However, the sentence must not violate the defendant’s Eighth 

Amendment rights and must provide him or her a ‘meaningful opportunity to obtain 

release based on demonstrated maturity and rehabilitation’ under Graham’s mandate.” 

(People v. Caballero, supra, 55 Cal.4th at pp. 268-269; see People v. Argeta (2012) 210 

Cal.App.4th 1478, 1482.)

Here, the trial court considered the mitigating circumstances present at defendant’s

first sentencing hearing, namely his age, capacity to change and diminished moral 
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culpability. Having considered the mitigating circumstances, the trial court resentenced 

defendant to the same term. But the trial court ordered the Department of Corrections 

and Rehabilitation to provide defendant with a full and meaningful parole hearing on his 

sixty-second birthday. Pursuant to an United States Department of Health and Human 

Services report on mortality, males living in this country have a life expectancy of 76.4 

years. The future parole hearing date on defendant’s sixty-second birthday falls within 

defendant’s life expectancy. The trial court acted within its authority as stated in

Caballero to impose a future parole hearing date. The trial court did not abuse its 

discretion.

Defendant also asserts he qualifies for a youth offender parole hearing under 

section 3051. Defendant contends the trial court could not sentence defendant to a parole 

hearing date that conflicts with section 3051. No reasonably arguable contention can be 

made that the trial court issued such an order. The trial court was directed by the federal 

courts to resentence defendant pursuant to Graham. As stated above, the trial court did 

not abuse its discretion in resentencing defendant. Nothing in this opinion, which 

addresses compliance with federal court orders, should be construed as denying 

defendant any rights he possesses under section 3051.

IV. DISPOSITION

The October 24, 2014 judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

KRIEGLER, J. BAKER, J.