People v. Mosby CA2/5 ( 2021 )

Filed 10/13/21 P. v. Mosby 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B306839
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA181525-03)
v.
MALCOLM DEON MOSBY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, George G. Lomeli, Judge. Affirmed.
Maggie Shrout, under appointment by the Court of Appeal,
for Defendant and Appellant.
Ron Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Amanda V. Lopez and Steven E.
Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
____________________________________
1
In 1999, defendant and appellant Malcolm Deon Mosby was
convicted of second degree murder (Pen. Code, § 187, subd. (a)),1
and conspiracy to commit murder (§ 182, subd. (a)(1)).
In 2019, Mosby petitioned for resentencing pursuant to
Senate Bill No. 1437 (Senate Bill 1437) and section 1170.95,
which provide for vacatur of a murder conviction obtained under
the natural and probable consequences doctrine or the felony
murder theory of liability, if the defendant was not the actual
killer, did not intend to kill, and was not a major participant in
an underlying felony who acted with reckless disregard for
human life. (People v. Martinez (2019) 31 Cal.App.5th 719, 723.)
Mosby appeals the trial court’s postjudgment order denying the
petition.
On appeal, Mosby contends the trial court impermissibly
relied on the record of conviction and engaged in fact-finding to
find him ineligible for resentencing. We affirm the trial court’s
order. The record of conviction establishes that Mosby was not
prosecuted under either a felony murder or natural and probable
consequences theory of liability for murder, and he is therefore
not entitled to relief.
1 Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2
FACTS AND PROCEDURAL HISTORY2
The Crime
Four Trey Gangster Crips were in a gang war with the
Rolling 20’s Outlaw Bloods. Mosby and two fellow Crip gang
members armed themselves and drove around looking for Blood
gang members to shoot. Not finding any, they went to the home
of one of the Crip gang member’s relatives. At the residence, they
met Rodney Rhone, a Blood gang member. A short argument
ensued, and Rhone was shot repeatedly and killed. Mosby
confessed to the killing to police officers, but offered an alibi
defense at trial. (Mosby, supra, B137015, p. 2.)
The Trial
The jury found Mosby guilty of second degree murder
(§ 187, subd. (a) [count 1]) and conspiracy to commit murder
(§ 182, subd. (a)(1) [count 2]), and found that the crimes were
committed for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)). The jury found untrue personal firearm use
allegations under section 12022.53, subdivisions (b) through (d).
Mosby was sentenced to 28 years to life in prison.
Direct Appeal
On appeal before another panel of this court, Mosby argued
that the trial court erred in failing to instruct the jury on the
2 We take judicial notice of the prior appellate record and
the appellate court’s prior unpublished opinion in People v. Mosby
(Oct. 4, 2000, B137015) (Mosby) from which the facts are drawn.
3
unanimity requirement with respect to the overt acts supporting
the conspiracy, and that there was insufficient evidence to
support the verdict on conspiracy to murder. (Mosby, supra,
B137015, p. 2.) This court affirmed the judgment. (Id. at p. 5.)
Petition for Resentencing
On January 7, 2019, Mosby filed a petition for resentencing
in which he requested that counsel be appointed.3
On June 17, 2019, the People filed a response contending,
as relevant here, that Mosby was ineligible for relief because he
could still be convicted of murder under the amendments made to
sections 188 and 189 by Senate Bill 1437 based on the record of
conviction.
In a written ruling on June 25, 2019
On August 15, 2019, Mosby filed a motion for
reconsideration through counsel arguing that the trial court’s
failure to appoint counsel prevented him from establishing
eligibility for resentencing. Mosby attached a petition for
resentencing under section 1170.95 to the motion, declaring that
he met the requirements of section 1170.95, subdivision (a).
Mosby requested that counsel be appointed to him.4
3 The petition is not contained in the record on appeal.
Mosby’s later-filed petition for reconsideration claims that he
requested counsel, a fact which the People do not dispute.
4 Mosby utilized a form declaration and did not check either
the box indicating that he was convicted of first degree felony
murder but could no longer be convicted under section 189, or the
box indicating that he was convicted of second degree murder
4
On August 22, 2019, the trial court appointed counsel.
On July 9, 2020, Mosby’s counsel filed a reply pursuant to
section 1170.95 arguing that he made a prima facie showing of
eligibility for relief by raising the inference that he was not a
major participant who acted with reckless indifference to human
life, and that the trial court should issue an order to show cause
and hold a hearing where the burden was on the prosecution to
show beyond a reasonable doubt that Mosby could still be
convicted of murder under amended sections 188 and 189.
At a hearing on July 15, 2020, at which Mosby’s counsel
was present, the trial court denied the petition for resentencing
as follows: “[T]he court will stand by its original ruling on June
25, 2019, denying the relief sought under Section 1170.95, nor
will the court grant the O[rder to] S[how] C[ause] for a hearing.”
Mosby timely appealed.
DISCUSSION
“Pursuant to section 1170.95, an offender must file a
petition in the sentencing court averring that: ‘(1) A complaint,
information, or indictment was filed against the petitioner that
allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine[;] [¶] (2) The petitioner was convicted of first degree or
second degree murder following a trial or accepted a plea offer in
lieu of a trial at which the petitioner could be convicted for first
degree or second degree murder[;] [¶] [and] (3) The petitioner
under a natural and probable consequences or second degree
felony murder theory of liability and could not be convicted under
section 188.
5
could not be convicted of first or second degree murder because of
changes to Section 188 or 189 made effective January 1, 2019.’ (§
1170.95, subds. (a)(1)–(3); see also § 1170.95 subd. (b)(1)(A).)”
(People v. Lewis (2021) 11 Cal.5th 952, 959–960 (Lewis).) “Where
the petition complies with subdivision (b)’s three requirements, . .
. the court proceeds to subdivision (c) to assess whether the
petitioner has made ‘a prima facie showing’ for relief. (§ 1170.95,
subd. (c).) [¶] If the trial court determines that a prima facie
showing for relief has been made, the trial court issues an order
to show cause, and then must hold a hearing ‘to determine
whether to vacate the murder conviction . . .’ (§ 1170.95, subd.
(d)(1).)” (Lewis, supra, 11 Cal.5th at p. 960.)
We reject Mosby’s argument that the trial court may not
consult the record of conviction when determining whether a
prima facie showing has been established and must base its
determination solely on the four corners of the petition. Our
Supreme Court has held that the “trial court can rely on the
record of conviction in determining whether [the section 1170.95,
subdivision (c)] prima facie showing is made.” (Lewis, supra, 11
Cal.5th at p. 970.) While the “‘trial court may not rely on the
record of conviction to deny a facially sufficient petition,’” there is
“‘no reason why a court would be prohibited from relying on the
record of conviction to deny a petition after deeming it facially
sufficient, appointing counsel, and receiving briefing from the
parties.’” (Id. at p. 971.) Here, the trial court properly considered
the record of conviction only after determining Mosby’s petition
was facially sufficient, appointing counsel, and considering
briefing from the parties.
Mosby is correct that the trial court may not “engage in
‘factfinding involving the weighing of evidence or the exercise of
6
discretion’” at the eligibility stage of the analysis. (Lewis, supra,
11 Cal.5th at p. 972.) However, we may affirm the trial court’s
ruling if correct on any ground. (See People v. Smithey (1999) 20
Cal.4th 936, 971–972.) In Lewis, the Supreme Court held that “‘if
the record, including the court’s own documents, “contain[s] facts
refuting the allegations made in the petition,” then “the court is
justified in making a credibility determination adverse to the
petitioner.”’ [Citations.]” (Lewis, supra, at p. 971.)
Here, the record of conviction shows that the jury was not
instructed regarding either felony murder or natural and
probable consequences liability for murder, and the prosecution
proceeded on a theory that Mosby was the direct perpetrator. To
the extent that Mosby relies on the argument that he was
convicted of murder under the natural and probable
consequences theory because the jury was instructed, under
CALJIC No. 6.11, regarding joint liability for acts committed in
furtherance of the conspiracy that are not the object of the
conspiracy, the argument fails.5 Here, “murder was the object of
the conspiracy, not the natural and probable consequence of an
act committed to further the object of the conspiracy.” (People v.
Medrano (2021) 68 Cal.App.5th 177, 184; see also People v.
Verdugo (2020) 44 Cal.App.5th 320, 336 abrogated on other
grounds by Lewis, supra, 11 Cal.5th 952 [“‘[defendants] were
5 The trial court instructed the jury, in relevant part, “A
member of a conspiracy is not only guilty of the particular crime
that to [his] knowledge [his] confederates agreed to and did
commit, but is also liable for the natural and probable
consequences of any [act] of a co-conspirator to further the object
of the conspiracy, even though that [act] was not intended as part
of the agreed upon objective and even though [he] was not
present at the time of the commission of that [act].”
7
charged with conspiracy to murder, not conspiracy to commit a
lesser crime that resulted in murder[,]’” therefore there is “‘no
possibility they were found guilty of murder on a natural and
probable consequences theory’”].)
Mosby contends he could not be convicted under amended
sections 188 and 189 because an instructional error permitted the
jury to convict him of murder without finding that he had the
intent to kill, but he does not explain how the alleged trial error
(that he forfeited because he failed to raise it on direct appeal)
brings him under the ambit of section 1170.95, which does not
offer relief to defendants who were prosecuted solely as direct
perpetrators. (See People v. Alaybue (2020) 51 Cal.App.5th 207,
223; People v. Edwards (2020) 48 Cal.App.5th 666, 674, review
granted July 28, 2020, S262481 (Edwards) abrogated on other
grounds by Lewis, supra, 11 Cal.5th 952.)
Mosby bears the burden of making a prima facie showing
that he is entitled to relief under section 1170.95, subdivision (c).
Because the record directly refutes the allegations in Mosby’s
petition that he was convicted under either a felony murder or a
natural and probable consequences theory of murder liability, we
affirm the trial court’s denial of his petition.
8
DISPOSITION
The trial court’s order denying Mosby’s resentencing
petition pursuant to section 1170.95 is affirmed.
MOOR, J.
We concur:
RUBIN, P.J
BAKER, J.
9