Opinion
B299928
12-29-2020
THE PEOPLE, Plaintiff and Respondent, v. QUINCEY LEE MOSLEY, Defendant and Appellant.
Adrian K. Panton, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TA046962) APPEAL from an order of the Superior Court of the County of Los Angeles, H. Clay Jacke, II, Judge. Affirmed. Adrian K. Panton, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Quincey Lee Mosley appeals from the trial court's order denying his petition under Penal Code section 1170.95 for resentencing on his murder conviction. According to defendant, the trial court erred by summarily denying his petition without first appointing counsel to represent him. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
On December 14, 1996, Lonnie Roberson was among a group of people standing in front of a market located in Mob Piru territory. (People v. Mosley (1999) 73 Cal.App.4th 1081, 1083-1084 (Mosley).) A car stopped in front of the market and someone inside fired approximately 50 shots into the group of people, killing Roberson. (Id. at p. 1084.)
On appeal, the Attorney General requested that we take judicial notice of the record in the direct appeal from defendant's judgment of conviction. At our request, the Attorney General lodged a copy of that record, and we take judicial notice of it.
A jury found defendant guilty of first degree murder (§ 187, subd. (a)), but found not true allegations that a principal was armed with a firearm (§ 12022, subd. (a)(1)), that defendant personally used a firearm (§ 12022.5, subd. (a)), and that defendant inflicted death on Roberson by discharging a firearm from a motor vehicle (§ 12022.55). (Mosley, supra, 73 Cal.App.4th at p. 1083.)
The trial court sentenced defendant to 25 years to life in state prison. (Mosley, supra, 73 Cal.App.4th at p. 1083.) In 1999, a prior panel of this court affirmed defendant's conviction. (Mosley, supra, 73 Cal.App.4th at p. 1091.)
III. PROCEDURAL BACKGROUND
On January 4, 2019, defendant filed his petition for resentencing under section 1170.95, arguing that he was eligible for resentencing because the information allowed the prosecution to proceed under the felony murder rule or under the natural and probable consequences doctrine; his conviction was based on the felony murder rule or the natural and probable consequences doctrine; and his conviction was no longer valid because of changes to sections 188 and 189. Defendant also requested the appointment of counsel.
On June 7, 2019, the trial court denied the petition, without appointing counsel, concluding that defendant was ineligible for relief. According to the trial court, because defendant "was convicted of first degree murder as an aider and abettor, he was not convicted under a felony murder theory [ ]or under a natural and probable consequences theory, as those theories were not presented to the jury for their consideration." Defendant timely appealed.
III. DISCUSSION
A. Senate Bill 1437 and Section 1170 .95
"Through section 1170.95, Senate Bill 1437 created a petitioning process by which a defendant convicted of murder under a felony murder theory of liability [or the natural and probable consequences doctrine] could petition to have his conviction vacated and be resentenced. Section 1170.95 initially requires a court to determine whether a petitioner has made a prima facie showing that he or she falls within the provisions of the statute as set forth in subdivision (a), including 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) [t]he 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) [t]he petitioner could not be convicted of first or second degree murder because of changes to [s]ection[s] 188 or 189 made effective January 1, 2019.' (See § 1170.95, subd. (c); People v. Verdugo (2020) 44 Cal.App.5th 320, 327 . . . , review granted Mar. 18, 2020, [S260493 (Verdugo)].) If it is clear from the record of conviction that the petitioner cannot establish eligibility as a matter of law, the trial court may deny the petition. (Verdugo, [supra, 44 Cal.App.5th] at p. 330.) If, however, a determination of eligibility requires an assessment of the evidence concerning the commission of the petitioner's offense, the trial court must appoint counsel and permit the filing of the submissions contemplated by section 1170.95. (Verdugo, [supra, 44 Cal.App.5th] at p. 332; [People v.] Lewis [(2020)] 43 Cal.App.5th [1128,] 1140, rev[iew] granted [Mar. 18, 2020, S260598 (Lewis)].)" (People v. Smith (2020) 49 Cal.App.5th 85, 92, fn. omitted, review granted Jul. 22, 2020, S262835 (Smith).) B. Analysis
Defendant contends that the trial court erred by summarily denying his petition without first appointing counsel to represent him. We disagree.
The jury instructions in defendant's case did not include instructions on the felony murder rule or the natural and probable consequences doctrine. The jury received instructions only on direct aiding and abetting and the elements of malice murder. Given these instructions, the jury necessarily found that defendant intended to kill the victim and defendant therefore was ineligible, as a matter of law, for resentencing under section 1170.95. (Verdugo, supra, 44 Cal.App.5th at p. 330 [the record of conviction may establish that defendant "is ineligible for relief as a matter of law because he or she was convicted on a ground that remains valid notwithstanding Senate Bill 1437's amendments to sections 188 and 189"]; Lewis, supra, 43 Cal.App.5th at p. 1140 ["the trial court's duty to appoint counsel [under section 1170.95] does not arise unless and until the court makes the threshold determination that petitioner 'falls within the provisions' of the statute"]; Smith, supra, 49 Cal.App.5th at p. 92, fn. 5 ["if the jury was not instructed on a natural and probable consequences or felony-murder theory of liability, the petitioner could not demonstrate eligibility as a matter of law because relief is restricted to persons convicted under one of those two theories"].)
The trial court delivered CALJIC No. 3.01: "A person who aids and abets the commission of a crime when he or she, [ ] [¶] (1) has knowledge of the unlawful purpose of the perpetrator, and[ ] [¶] (2) with the intent or purpose of committing or encouraging or facilitating the commission of the crime, and[ ] (3) by act or advice aids, promotes, encourages or instigates the commission of a crime. [¶] A person who aids and abets the commission of a crime need not be present at the scene of the crime. [¶] Mere presence at the scene of a crime which does not in itself assist the commission of a crime does not amount to aiding and abetting. [¶] Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting."
The trial court delivered CALJIC No. 8.10: "The defendant is accused in [c]ount 1 of having committed the crime of murder, a violation of . . . [s]ection 187. [¶] Every person who unlawfully kills a human being with malice aforethought is guilty of the crime of murder in violation of [s]ection 187 . . . . [¶] A killing is unlawful if it was neither justifiable nor excusable. [¶] In order to prove this crime, each of the following elements must be proved: [¶] (1) A human being was killed; [ ] [¶] (2) The killing was unlawful; and[ ] [¶] (3) The killing was done with malice aforethought." --------
Defendant additionally contends that he had a constitutional right, under the Sixth Amendment and due process principles, to the appointment of counsel. Again, we disagree. (See, e.g., Smith, supra, 49 Cal.App.5th at p. 92; People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410; see also Dillon v. United States (2010) 560 U.S. 817, 828-829 [holding Sixth Amendment inapplicable to sentence modification proceedings]; People v. Anthony (2019) 32 Cal.App.5th 1102, 1156 ["[T]he retroactive relief . . . afforded by Senate Bill 1437 is not subject to Sixth Amendment analysis"]; In re Clark (1993) 5 Cal.4th 750, 780 [constitutional due process guarantees demand appointment of counsel in postconviction proceedings "if a petition . . . states a prima facie case leading to issuance of an order to show cause"].)
IV. DISPOSITION
The order denying the resentencing petition under section 1170.95 is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J. We concur:
RUBIN, P. J.
MOOR, J.