People v. Moore CA2/5

Opinion

Filed 8/19/26 P. v. Moore CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B343652

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA020188) v.

ETIENNE MICHAEL MOORE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Alison S. Matsumoto, Judge. Affirmed. Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorneys General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Mathews and Analee J. Brodie, Deputy Attorneys General for Plaintiff and Respondent.

__________________ Etienne Michael Moore appeals the trial court’s order denying his petition for vacatur of his conviction and resentencing for the murder of Laurie Myles. The trial court denied Moore’s petition following an evidentiary hearing held pursuant to Penal Code1 section 1172.6, subdivision (d)(3). On appeal, Moore contends that the trial court erred by basing its conclusion that he was the actual killer on the jury’s finding that Moore personally used a firearm in the commission of the murder. The People assert that the court’s ruling was based on the record as a whole—not the jury’s personal firearm use finding—and that substantial evidence supports the court’s findings. We affirm the trial court’s order.

FACTS AND PROCEDURAL HISTORY

A. Evidence at Trial In July, August, September, and October 1993, Moore and his associates, including codefendants LeCedrick Johnson and Shashonee Solomon, committed numerous “follow-home” armed robberies. Moore regularly met Johnson and several other friends during the summer and fall of 1993 and talked about committing armed robberies. Moore and his cohorts would pick out people driving nice cars and follow them home to rob them. The robbers obtained guns and stole vehicles to use in the robberies. One of the robberies in which Moore was involved 1 All further statutory references are to the Penal Code.

2 resulted in the shooting death of Laurie Myles. At trial, J.M., who was nine years old at the time of his mother Myles’s killing, testified to the following: In the evening on September 15, 1993, J.M. and Myles drove to pick up J.M.’s sister from Bible study. J.M. was sitting in the front passenger’s seat. The street was very dark, which made J.M. nervous. While Myles was parking, a large yellow or tan car with its headlights off pulled up next to them. A man, who J.M. identified at trial as looking similar to Moore, got out of the passenger side of the car and stood on the driver’s side of Myles’s car. Within seconds, J.M. heard his mother screaming. J.M. saw a bullet-sized hole in the window, which had shattered the glass. Myles tried to drive away and ground the car’s gears. Moore had his hands on the window and was pushing the car to keep Myles and J.M. from escaping. Moore demanded Myles’s purse and a briefcase that was on the floorboard. Moore was holding a gun and punching the glass out of Myles’s window with his elbow. Myles had slumped down in her seat and was gasping for air. Her tongue was turning white. She gave Moore her purse, but she was unable to hand the briefcase to him. J.M. saw that his mother did not have the strength to hand over the briefcase, so he pushed it in Moore’s direction. Moore told Myles to hurry up or he would shoot her in the head. He reached into Myles’s car, grabbed the briefcase, and threw it into his car. Moore got into the passenger side of the car and banged the door against Myles’s car two or three times before a second man, later identified as Johnson, drove the car away. J.M. waited for Moore’s car to turn the corner before checking to see if his mother was alright. Myles’s side was covered in blood, so J.M. climbed into her lap and tried to perform 3 CPR. He also tried to put the car in gear and drive it, but was unsuccessful. J.M. sought help from a passerby. It took more than 10 minutes for the fire truck and paramedics to arrive. The prosecution introduced evidence that Myles died of a single gunshot wound from a hollow point bullet that penetrated her arm, heart, diaphragm, and liver. Police recovered a .380 shell casing from the crime scene. Kristina Patchis testified that she knew Moore from high school and had dated him for a few weeks sometime in the fall of her freshman year. There was an incident in which Moore attempted to kick Patchis. Patchis transferred to a different high school to get away from Moore and his girlfriend, with whom Patchis was also having problems. In the spring of 1995 or 1996, Moore called Patchis out of the blue. Moore said he was in jail and kept asking if “anybody had contacted [Patchis].” Patchis had no idea what he was talking about. Moore asked Patchis if she knew about the “Northridge situation.” When Moore mentioned a Bible study class, Patchis knew that he was referring to the incident in which Myles was killed. She had heard about the murder in the newspaper and on the TV news. Patchis only “knew that there was a mother waiting with her younger child for her daughter to come out of Bible class and she had gotten killed.” Moore mentioned that there had been a robbery, a little boy was involved, and that the incident took place inside a vehicle. Moore told Patchis “it was a robbery gone bad, it was something that should have been real easy but it wasn’t.” Moore indicated that there were at least two people who committed the robbery. He said that the victim was shot because “she didn’t move fast enough.” He told Patchis, “the mother had to get killed.”

4 The way Moore talked about the incident suggested that he had personal knowledge of the murder. Although he never directly stated he was the shooter, Patchis testified that “[w]ith the phone conversation that I had been—that I had gotten, the impression was very obvious that that’s what had happened.” Moore told Patchis “ ‘I took out someone’s mother[.]’ ” This made Patchis think Moore was the shooter, though she could not be certain. Patchis did not report her conversation with Moore to the police. She believed that Moore had called her to make sure that she did not say anything bad about him. The police contacted Patchis by phone about six months before the trial. Patchis told the police that she did not want to be involved. She became scared when she started receiving subpoenas. Moore had told Patchis that if anyone crossed him “[t]hey would get screwed, they would get the short end of the stick.”

B. Verdict As relevant here, the jury found Moore and Johnson guilty of conspiracy to commit robbery (§ 182, subd. (a)(1), count 1), the first degree murder of Myles (§ 187, subd. (a)(1), count 2), and the second degree robbery of Myles (§ 211, count 3). The jury found true the special circumstance that the murder was committed in the commission of a robbery (§ 190.2, subd. (a)(17)), and found true the allegations that in the commission of the murder and the robbery Moore personally used a .380 caliber semi-automatic handgun (§ 12022.5, subd. (a)(1)). Moore was also convicted of conspiracy to commit murder (§ 182, subd. (a)(1), count 4), the first degree murder of Talin Kara Tarkhanian (§ 187, subd. (a)(1), 5 count 5) and the second degree robbery of Tarkhanian (§ 211, count 6), which occurred in a separate incident.2 Finally, the jury found true a multiple murder special circumstance. (§ 190.2, subd. (a)(3).) The trial court sentenced Moore to life without parole plus a determinate sentence of seven years.

C. Petition and Prima Facie Eligibility Determination On May 24, 2023, Moore filed a petition for resentencing utilizing a standard form. The court appointed counsel.3 In a hearing on July 12, 2024, the People conceded that although the jury found Moore used a gun in Myles’s murder, there was no jury finding establishing as a matter of law that Moore was the actual killer.4 The court found Moore prima facie eligible for relief, and issued an order to show cause.

2 Moore does not appeal the denial of his petition for resentencing with respect to the murder of Tarkhanian in count 5, so we do not discuss it in this opinion.

3 Although the court referenced the People’s response and Moore’s reply at the prima facie eligibility hearing, neither pleading is contained in the record on appeal. Because the matter proceeded to an evidentiary hearing for which there was additional briefing the prima facie stage pleadings are not necessary to our review.

4 The trial court held the prima facie hearing based on the People’s objection to issuance of an order to show cause for the murder of Tarkhanian.

6 D. Order to Show Cause Pleadings On November 22, 2024, Moore, through appointed counsel, filed an order to show cause brief. Moore contended that the trial court could not consider the parts of the record of conviction that would not be admissible under current law. Specifically, Moore argued that the testimony of a confidential informant was inadmissible because it was not sufficiently corroborated. Additionally, officer testimony regarding rap lyrics was inadmissible pursuant to section 352.2, subdivision (a). Moore also objected pursuant to People v. Aranda (1965) 63 Cal.2d 518, and Bruton v. United States (1968) 391 U.S. 123 (Aranda/Bruton), to the introduction of statements made by codefendant Johnson. Finally, Moore observed that the law pertaining to admissibility of gang evidence had changed dramatically since his trial in the 1990’s, but he made no specific objections based on that observation. On December 20, 2024, the People filed a response to Moore’s order to show cause brief. The People argued that Moore personally shot and killed Myles. The People opposed exclusion of the jailhouse informant testimony relating to Myles’s murder because there was corroborating evidence—Patchis testified that Moore made statements to her describing shooting a woman under the same circumstances as those in the murder of Myles, and J.M. testified that the murderer looked like Moore. Regarding Johnson’s testimony, the People asserted that on direct appeal the court held that admission of the testimony was not a violation of Aranda/Bruton. However, even if Johnson’s testimony was excluded, overwhelming evidence supported the 7 finding that Moore was the actual shooter. Finally, consideration of the rap lyrics and gang evidence was not necessary to the finding that Moore was the shooter.

E. Section 1172.6 Evidentiary Hearing At the evidentiary hearing on January 10, 2025, the People lodged a copy of the reporter’s transcript of the original trial and rested their case. Moore then testified on his own behalf. In 1993, he was 19 years old and living in his mother’s house. He was a member of the Original Valley Gangsters. Moore’s activities included drinking, selling drugs, robbery, fighting, and going to parties. Moore was involved in a series of approximately 12 “follow-home robberies” over the course of three days. He and his codefendants would drive around, find someone in a car, follow them home, and rob them. One person drove and two other people would jump out of the car to carry out the robbery. Moore drove his ex- girlfriend’s car in the robberies. Moore only jumped out once or twice during the robberies. He was not armed. Moore testified that he was not involved in the robbery of Myles on September 15, 1993. He learned about Myles’s murder on the news. The prosecutor objected to Moore’s testimony on relevance grounds. The prosecutor argued that the purpose of a section 1172.6, subdivision (d)(3) hearing was not to re-litigate all issues—it was limited by statute to the situation where the defendant was no longer guilty of murder because of changes to section 188 and 189. Moore could have raised the defense that he was not at the scene of the murder at trial. Moore was estopped 8 from claiming that he was unarmed because the jury found that he used a firearm in commission of the offense. Moore’s claim that he was not present was legally inconsistent with the jury’s true finding on the firearm use allegation. Defense counsel responded that the petitioner could introduce new evidence at an evidentiary hearing, and Moore had not testified at trial. Moore then resumed his testimony. He claimed he did not date Patchis and had no relationship to her. The prosecutor argued that the jury found Moore used a firearm in the commission of the crime and that with respect to Johnson, the jury found that a principle was armed. The prosecutor asserted that those findings combined with the evidence that Myles was killed by a single bullet compelled the conclusion that Moore was the shooter. Defense counsel maintained that, in light of all of the currently inadmissible evidence that was considered at trial—the jailhouse informant testimony, rap lyrics, and Johnson’s statements—there was insufficient evidence to convict Moore. With respect to the admission of Johnson’s statements, the prosecutor responded that the Court of Appeal had found that the trial court had not violated Aranda/Bruton by admitting Johnson’s statements, and that even if the trial court had erred, the error was harmless. With respect to the rap lyrics, the prosecutor did not object to the court excluding them from consideration.

F. Trial Court’s Ruling The trial court stated that it did not consider the rap lyrics or the confidential informant’s testimony when making its ruling.

9 The court considered J.M.’s testimony and recounted facts that the court found significant and citations to those facts in the reporter’s transcript. The court noted that, at trial, J.M. identified Moore as looking similar to the shooter. The court emphasized that Myles died of a gunshot wound that penetrated her arm and chest, passing through her heart, lung, and diaphragm. The police recovered a .380 shell casing from the crime scene. The bullet that killed Myles was fired from the same gun as bullets that struck three victims in other counts for which the defendants had been tried. The court also considered Patchis’s testimony that Moore called her from prison and mentioned a robbery and shooting that involved a little boy and took place in a vehicle. Moore said the victim did not move fast enough and said something like “I took out somebody’s mother.” Moore also said that the mother had to be killed. After recounting this evidence, the court concluded, “Considering the testimony at trial, including other testimony at trial—but this is the main testimony regarding the injury, et cetera—the court finds that the People have met their burden beyond a reasonable doubt that [Moore] is guilty of count 2, murder, in violation of Penal Code section 187[, subdivision] (a). [¶] Also alleged were the firearms enhancements, in violation of Penal Code sections 12022[, subdivision] (a)(1) and 12022.5. The court finds proof beyond a reasonable doubt that the allegations are true and that the special circumstance allegation within the meaning of Penal Code section 190.2[, subdivision] (a)(17) of the murder during the course of a robbery was alleged and finds proof beyond a reasonable doubt that the special circumstance allegation is true. [¶] So the petition is denied.” The court asked if the parties wished to say anything 10 further. The prosecutor added that although he had espoused the theory that Moore was the actual killer and that the jury’s findings supported that conclusion, the evidence also established beyond a reasonable doubt that Moore was guilty of murder because he was a major participant in the robbery who acted with reckless indifference to human life. Defense counsel argued against giving weight to Patchis’s testimony. He stated that there was no evidence Moore made a call to Patchis from prison despite the fact that prison calls are typically recorded. Moore had testified that he had no relationship to Patchis. The court responded that it was considering the record as a whole, of which Patchis’s testimony was a small part. The court stated, “The court is basing its decision primarily on the findings of the jury, which included the personal use of the handgun at the time, the fact that the victim was ultimately killed by a single gunshot wound during the course of the robbery. The court would say that that was the Kristina Patchis—I guess the court would describe it as corroborative of all of the evidence during the course of trial, including the identification describing the defendant by the child witness who testified at trial, along with all of the other findings and findings of overt acts that were made by the jury as well. [¶] . . . [¶] I mean obviously there is a lot of testimony during the course of this lengthy trial. The court just cited some of the testimony, a very small amount, given the length and the overall scope of the trial.”

11 DISCUSSION

A. Legal Principles Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. Sess.) amended sections 188 and 189—the felony murder rule and the natural and probable consequences doctrine as it relates to murder—to “provide[] that except for first degree felony murder ‘in order to be convicted of murder, a principal in a crime shall act with malice aforethought. . . .’ [Citations.]” (People v. Basler (2022) 80 Cal.App.5th 46, 54, fn. omitted.) In the case of felony murder, “[a] participant in the perpetration or attempted perpetration of [an enumerated] felony [(including robbery)] 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 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. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life . . . .” (§ 189, subd. (e).) Pursuant to section 1172.6, subdivision (a), a person convicted of murder may file a petition to have the murder conviction vacated and to be resentenced if “(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, 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 12 crime . . . . [¶] (2) The petitioner was convicted of murder . . . following a trial. . . . [and] [¶] (3) The petitioner could not presently be convicted of murder . . . because of changes to [s]ection 188 or 189 made effective January 1, 2019.” If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the trial court must issue an order to show cause. If an order to show cause issues, the court then “hold[s] a hearing to determine whether to vacate the murder . . . conviction and to recall the sentence and resentence the petitioner on any remaining counts,” unless the parties “waive a resentencing hearing and stipulate that the petitioner is eligible to have [his or her] . . . conviction vacated and to be resentenced.” (§ 1172.6, subd. (d)(1)–(2).) “At the hearing . . . the burden of proof . . . [is] on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder . . . under California law as amended by the changes to [s]ection 188 or 189 made effective January 1, 2019.” (§ 1172.6, subd. (d)(3).) On appeal from a trial court’s order denying a section 1172.6 petition following a subdivision (d)(3) hearing, this court evaluates the sufficiency of the evidence supporting the court’s determination using the substantial evidence standard of review. (People v. Garrison (2021) 73 Cal.App.5th 735, 747.) “ ‘[W]e look to whether the prosecution has introduced sufficient evidence of “ ‘ “reasonable, credible, and of solid value” ’ ” to “support a finding beyond a reasonable doubt” ’ that petitioner was guilty. ([People v.] Clark [(2016)] 63 Cal.4th [522,] 618 [(Clark)].)” (People v. Henley (2022) 85 Cal.App.5th 1003, 1017.) “We examine the record in the light most favorable to the judgment and defer to the trial court’s implicit credibility findings. [Citation.] ‘ “A reversal for insufficient evidence ‘is unwarranted 13 unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the [fact finder]’s verdict.” ’ [Citation.]” (People v. Diaz (2026) 118 Cal.App.5th 545, 558.)

B. Analysis Moore contends that the trial court’s order must be reversed because in contravention of People v. Hart (2025) 113 Cal.App.5th 1099 (Hart), the court erroneously relied on the jury’s findings to find that Moore would still be guilty of felony murder as the actual killer. The People respond that the trial court relied on the record in its entirety and that Moore is placing undue weight on the court’s isolated comment that it was “basing its decision primarily on the findings of the jury[.]” Alternatively, the People argue that even if the court relied on the jury’s findings it did not violate Hart in doing so. We agree with the People that the trial court based its findings on the evidence as a whole and that its ruling was not inconsistent with Hart. The trial court based its ruling on testimony in the trial transcripts, which the court described at length and for which the court provided page citations. In its ruling, the court made no mention of the jury’s findings. The court discussed only the facts that supported its conclusion that, beyond a reasonable doubt, Moore was guilty of felony murder and the allegations and special circumstances were true. The court did not reference the jury’s findings in its ruling. It was only after the court permitted the parties to offer their final thoughts that the court mentioned the jury’s findings. The court made its reference to the jury’s findings in response to 14 the prosecutor’s argument that even if Moore was not the actual killer he was guilty of felony murder as a major participant in the robbery who acted with reckless indifference to life. The court explained that it was making an actual killer finding rather than a major participant finding—i.e., that the court’s guilty finding was based on the same theory that the jury had relied upon. Significantly, the court did not state that it was bound by the jury’s findings as Moore contends, but rather that the court found the jury’s findings were supported by the evidence beyond a reasonable doubt. The court’s ruling was not inconsistent with Hart, supra, 113 Cal.App.5th 1099. In that case, Hart and his codefendant went to an apartment where the victim and his girlfriend lived. (Hart, supra, 113 Cal.App.5th at p. 1103.) Hart’s girlfriend testified that the victim went into the hallway outside the apartment with both defendants. (Ibid.) Soon afterward, she heard a gunshot. (Ibid.) When she opened the door, Hart was crouched over the victim, who had died from a single close-range gunshot. (Id. at p. 1104.) Hart looked surprised. Hart’s codefendant ran away and Hart ran after him. (Ibid.) The victim’s girlfriend did not see either man holding a firearm. (Ibid.) Hart’s girlfriend also testified. She had told police that Hart came to her apartment with blood on his face and said he shot and killed someone. (Ibid.) At trial, Hart’s girlfriend recanted her statement. (Ibid.) She testified that Hart came to her apartment looking for his wife and did not say anything about killing anyone. (Ibid.) The jury found Hart guilty of murder, but found not true the allegation that Hart had personally used a firearm in the commission of the murder. (Ibid.)

15 Years later, Hart filed a petition for resentencing pursuant to section 1172.6. (Hart, supra, 113 Cal.App.5th at p. 1104.) The court held an evidentiary hearing at which new evidence was presented, including a comprehensive risk assessment conducted by a state forensic psychologist. (Id. at pp. 1104–1105.) The psychologist included in the assessment that Hart admitted to her that he had killed the victim. (Id. at p. 1105.) Hart had been advised that the evaluation was voluntary and that it was not confidential. (Ibid.) The trial court denied Hart’s petition. The court found Hart guilty of felony murder as the actual killer based on the comprehensive risk assessment and Hart’s girlfriend’s statements. (Id. at pp. 1105–1106.) Alternatively, the court found Hart guilty of felony murder as a major participant who acted with reckless indifference to human life. (Ibid.) On appeal, Hart contended that under the doctrine of issue preclusion the trial court was collaterally estopped from relying on the theory that he was the actual killer because the jury found not true the personal firearm use allegation. (Hart, supra, 113 Cal.App.5th at p. 1104.) The Court of Appeal held that issue preclusion did not apply because whether Hart had used a firearm was not an “ ‘ultimate fact’ ” necessary to the murder conviction—the prosecution did not have to prove beyond a reasonable doubt that Hart used a firearm to find him guilty of murder. (Id. at p. 1110.) The trial court’s ruling in the instant case is not contrary to the holding in Hart. In this case, the trial court was not estopped from finding that Moore used a firearm, nor was it estopped from finding that Moore did not use a firearm, because just as in Hart, the issue was not an ultimate fact necessary to the murder 16 conviction—the jury also found Johnson guilty of murder, although it was not asked to find whether he personally used a firearm in the commission of the murder. To the extent Moore asserts that Hart stands for the proposition that a trial court may not rely on a jury’s finding when new evidence is presented at an evidentiary hearing, we disagree with his interpretation. That issue was not presented in Hart—there, the court made a ruling contrary to the jury’s finding. Regardless, in Moore’s case the court never indicated that it was constrained by the jury’s findings. The court simply observed that the evidence supported the jury’s findings, which the court agreed with, beyond a reasonable doubt. Accordingly, we conclude that the court did not err when making its ruling.

DISPOSITION

We affirm the trial court’s order denying Moore’s Penal Code section 1172.6 petition. NOT TO BE PUBLISHED.

MOOR, J.

WE CONCUR:

HOFFSTADT, P. J.

KIM (D.), J.