People v. Moten CA2/7
Opinion
Opinion
INTRODUCTION
Jesse Moten appeals the superior court’s resentencing order pursuant to Penal Code section 1172.75.1 The court struck Moten’s one-year enhancement for a prior prison term under section 667.5, subdivision (b), as required by section 1172.75. But the court did not dismiss Moten’s two-year section 12022.5, subdivision (a), enhancement for personal use of a firearm during a felony. Moten argues the court abused its discretion by focusing on the circumstances of the underlying offense and giving insufficient weight to his mitigating evidence. We affirm the superior court’s resentencing order, but we remand for the court to recalculate Moten’s custody credits.
FACTUAL AND PROCEDURAL BACKGROUND
A. Original Conviction and Sentence In 1986, Moten shot and killed Berniece McCutcheon.2 McCutcheon’s son, Wayne Eldridge, was arguing with a neighbor, Margaret Dirks. During the argument, Moten and an accomplice approached Eldridge. Moten and the accomplice both carried guns. McCutcheon tried to intervene in the argument and everyone dispersed. Moten then returned, “ran toward McCutcheon’s house” and fired a shot inside, killing McCutcheon.