People v. Mosqueda CA4/2 ( 2024 )

Filed 9/3/24 P. v. Mosqueda CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E082764
v. (Super.Ct.No. SCR46696)
ADRIAN MOSQUEDA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill,
Judge. Dismissed.
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Adrian Mosqueda appeals from the trial court’s denial,
after an evidentiary hearing, of his petition for resentencing under Penal Code
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section 1172.6.1 Defendant’s counsel on appeal filed a brief contending that because
there was an evidentiary hearing below, the review procedures outlined in People v.
Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738(Anders) apply, rather than those set forth in People v. Delgadillo (2022) 14 Cal.5th 216(Delgadillo) for review of denial of postconviction relief under section 1172.6. As we
briefly explain, Delgadillo resolves counsel’s claim. Defendant filed no supplemental
brief. We therefore dismiss the appeal.
PROCEDURAL AND FACTUAL BACKGROUND
An information filed in February 1988 charged defendant with three offenses:
(1) murder (§ 187, subd. (a)) for the slaying of Rodolfo Vasquez Arroyo; (2) attempted
robbery (§§ 664, 211); and (3) robbery (§ 211). Each count included allegations that
defendant personally used a firearm to commit the crimes. (§§ 1203.06, subd. (a)(1) &
12022.5.)
On December 28, 1988, a jury convicted defendant on all three counts, found the
murder was in the first degree, and the firearm enhancements true. On January 25, 1989,
the trial court sentenced defendant to 32 years to life in prison.
In August 2022, defendant filed his resentencing petition. Among other statements
in his form petition, he averred that he “could not now be convicted of 1st or 2nd degree
murder because of changes made to Penal Code §§ 188 and 189, effective January 1,
2019.” The prosecutor opposed resentencing. Nonetheless, based on the fact that the
1 All further undesignated statutory references are to the Penal Code.
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murder liability theories on which the jury was instructed included felony murder, the
prosecutor conceded defendant made a prima facie case under section 1172.6 to require
an evidentiary hearing.
The trial court appointed counsel for defendant and set a hearing to determine
defendant’s eligibility for resentencing. Defendant testified at the hearing, as did his
expert witness. In pertinent part, defendant implicated his cousin, Edward Flores, as
having committed the murder. Stating that Flores was “way bigger [physically] than
me,” defendant suggested Flores better matched a photograph of the alleged perpetrator
shown to an eyewitness at defendant’s trial.
Defendant also testified that “as soon as [Flores] died,” defendant attempted to
contact the detective who investigated Arroyo’s homicide “to show him where he made
his mistakes at.” Defendant claimed that, to no avail, he “wanted to point [the detective]
in the right direction that he mistak[en]ly aimed at me when it should have been aimed at
my cousin.” The date Flores died is not in the appellate record, but appears by the timing
of defendant’s resentencing petition to have been decades after defendant was convicted.
Defendant testified he remained silent for so long because “where I grew up at, you learn
very young that you don’t see nothing, you hear nothing, you say nothing.”
Defendant’s expert in gang culture similarly testified to a no-snitching rule in
communities dominated by gangs. According to the expert, after a period of time, usually
15 years, gangs ordinarily permit disclosing who actually committed the crime.
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The trial court reviewed the record of defendant’s trial, including the transcripts.
The court also requested and considered post-hearing bench briefs and then heard further
argument by the parties.
The court denied defendant’s petition. The court determined the evidence
presented at defendant’s trial showed beyond a reasonable doubt that he was “one of the
shooters that pursued the victim and shot at” him and, on that basis, defendant was guilty
of murder under current law. This included as a direct aider and abettor under
section 189, subdivision (e)(2), or as a major participant in the crime who acted with
reckless indifference to life under section 189, subdivision (e)(3). The court made its
latter finding regarding reckless indifference “mindful of Banks and Clark.” (See People
v. Clark (2016) 63 Cal.4th 522; People v. Banks (2015) 61 Cal.4th 788.)
The court referenced “other circumstantial, corroborating evidence connecting the
crime to [defendant].” This included “ballistics testimony in the trial about the unspent
bullets at [defendant’s] house matching the bullets at the scene.” Additional
“connections” included the eyewitness “who ID’d Mr. Mosqueda three times: [i]n the
photo lineup and the live lineup at the jail . . . and he identified him in front of the jury,
and the jury believed him.”
The court did not find defendant’s testimony denying involvement credible. In the
court’s view, defendant’s new claim decades after the fact amounted to “‘conveniently
blam[ing] a dead man, someone who will neither contest the allegations nor suffer
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punishment as a result of them.’” (Quoting Herrera v. Collins (1993) 506 U.S. 390, 422
(conc. opn. of O’Connor, J.).)
On credibility, the court noted that defendant told a detective the morning after the
murder that he “‘was fucked up and didn’t remember’” where he was the previous night.
Now defendant’s claim was, “‘I wasn’t there, I didn’t do it.’” The court pointed out that
the change in his account not only undermined defendant’s credibility but, further, his
new positive recall that he was not at the murder scene “would not” have “violate[d] the
gang code” even at the time of the earlier investigation. The court acknowledged, “If you
point[ed] somebody else out, then yeah, you’re right. You might have a problem. But if
you didn’t do it, there’s nothing in the gang code that says you have to take responsibility
and say that you did. And you didn’t say you didn’t do it, you said ‘I didn’t remember,’
which is inconsistent with those ideas.”
After the trial court denied resentencing, defendant appealed and this court
appointed counsel.
Appellate counsel filed a brief stating his review of the record uncovered no
arguably meritorious appellate issues, including after consultation with Appellate
Defenders, Inc. The brief set forth a statement of the case, an extended statement of
facts, and requested that we independently review the record on defendant’s behalf to
identify potential grounds for reversal, if any. Counsel requested the review under Wende
and Anders, eschewing Delgadillo. Counsel listed as an issue for our potential
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independent consideration: whether sufficient evidence supported the trial court’s direct
aider/abettor and major participant/reckless indifference findings.
DISCUSSION
Generally in appeals from denial of postconviction relief, including denial of a
petition for resentencing under section 1172.6, independent appellate court review under
Wende and Anders is not required when counsel files a no-issue brief. (Delgadillo, supra,
14 Cal.5th at pp. 224-226.) The appellate court may undertake independent review in its
discretion, but need not do so. (Id. at pp. 230-232.) If the defendant does not file a
supplemental brief, the appellate court “may dismiss the appeal as abandoned.” (Id. at
p. 232.) Defendant did not respond to our notice he could file a supplemental brief or
that dismissal might follow without one.
Appellate counsel contends that because Delgadillo was an appeal from the denial
of a section 1172.6 petition at the prima facie stage, Wende and Anders procedures still
apply to cases, like this one, in which the court denied the petition after an evidentiary
hearing. We disagree.
There are multiple steps in appellate counsel’s argument but, in the end, his
contention relies on the fact that independent review under Wende and Anders is founded
on ensuring the right to assistance of counsel mandated by the Constitution. (See
Delgadillo, supra, 14 Cal.5th at pp. 225-226.) Delgadillo noted that after an unsuccessful
direct appeal following a defendant’s conviction, “the procedures set out in Anders and
Wende do not apply to an appeal from the denial of postconviction relief, even if the
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defendant has a state-created right to the appointment of counsel for that appeal.”
(Delgadillo, at p. 226.)
Appellate counsel therefore attempts to upgrade defendant’s statutory right to
counsel under section 1172.6, subdivision (b), to one of constitutional dimension.
Counsel does so by analogizing to habeas corpus and coram nobis proceedings. (See
Delgadillo, supra, 14 Cal.5th at p. 228 [considering this argument]; see also People v.
Shipman (1965) 62 Cal.2d 226, 231-233 [defendant may have a constitutional right to
counsel in coram nobis proceedings]; see also In re Clark (1993) 5 Cal.4th 750, 780
[extending Shipman to habeas proceedings].) Delgadillo dismissed the analogy in the
context of section 1172.6 proceedings, stating: “Our Shipman precedents have never
extended the right to counsel to an appeal from a ruling in an ameliorative legislative
scheme.” (Delgadillo, at p. 228.) As Delgadillo also noted, “After the first appeal as a
right, ‘the Constitution does not put the State to the difficult choice between affording no
counsel whatsoever or following the strict procedural guidelines annunciated in Anders.’”
(Delgadillo, at p. 226, quoting Pennsylvania v. Finley (1987) 481 U.S. 551, 559.)
Moreover, Delgadillo broadly rejected the notion that considerations of due
process mandate Wende-type independent review in appeals from denial of a
section 1172.6 resentencing petition. Delgadillo summarized the constitutional due
process question as: “Ultimately ‘. . . whether the absence of the Anders/Wende
procedures significantly increases the risk of erroneous resolutions.’” (Delgadillo, supra,
14 Cal.5th at p. 229.) The court examined the question in light of “the elaborate
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protections already in place” under section 1172.6, including at the trial court level “the
appointment of counsel, a review of the record, briefing, and a hearing” and, in
Delgadillo as here, appointment of appellate counsel. (Delgadillo, at p. 230.) The high
court concluded, “[O]nce appointed counsel here concluded there are no arguable issues,
‘the value of applying the procedures required by our decision in Wende in criminal
appeals is “too slight to compel their invocation.”’” (Ibid.)
The same is true here, hence no Wende/Anders review is required. We also see no
reason to undertake discretionary independent review of the trial court’s denial of
defendant’s resentencing petition.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
RAPHAEL
J.
MENETREZ
J.
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