People v. Mosley CA3

Opinion

Filed 9/14/26 P. v. Mosley CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento)

THE PEOPLE, C104165 Plaintiff and Respondent, (Super. Ct. No. 05F02507) v. DIMITRIC RENE MOSLEY, Defendant and Appellant.

In 2006, defendant Dimitric Rene Mosley1 was convicted of attempted murder, attempted robbery, and two counts being a felon in possession of a firearm following a court trial. The trial court also found true that defendant personally discharged a firearm and some of the offenses were for the benefit of a criminal street gang. The trial court sentenced defendant to a term of 25 years to life plus 17 years in prison.

1 Defendant’s name appears as “Dimitric Rene Mosley,” “Dimitric R. Mosley,” “Dimitric Mosley,” and “Dimitric R. Mosely, Jr.,” in the record. We use defendant’s name as it appears on the abstract of judgment.

1 In 2022, defendant filed a petition for resentencing pursuant to Penal Code2 section 1172.6.3 After an evidentiary hearing, the trial court found defendant was ineligible for relief because he was the actual shooter. Appointed counsel for defendant submitted a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216, 231-232 (Delgadillo), which gives this court discretion to independently review the record to determine whether there are any arguable issues on appeal. Defendant filed a supplemental brief. We considered defendant’s arguments and affirm. FACTUAL AND PROCEDURAL BACKGROUND We summarize the relevant facts of this case from our prior unpublished opinion. (People v. Mosley (Feb. 8, 2008, C053758) [nonpub. opn.] (Mosley).) We recite these facts for context but rely only on the procedural history they disclose in rendering our decision. Soon after midnight on February 21, 2005, the victim was walking home from a hospital in South Sacramento. (Mosely, supra, C053758.) As he walked, a white sedan passed him. (Ibid.) “Those in the car yelled profanities at him as it passed. [The victim] continued walking.” (Ibid.) As he approached an intersection, defendant and codefendant Cory Gains crossed the street and accosted him. (Ibid.) Defendant had a gun. (Mosely, supra, C053758.) He put it to the victim’s neck, asking the victim who he was. (Ibid.) Gaines, meanwhile, reached into the victim’s right coat pocket. (Ibid.) The victim grabbed the barrel and pushed the gun away. (Ibid.)

2 Undesignated section references are to the Penal Code. 3 Effective June 30, 2022, former section 1170.95 was recodified without substantive change to section 1172.6. (Stats. 2022, ch. 58, § 10.) Defendant filed his petition under former section 1170.95, but we refer to the current section 1172.6 throughout this opinion.

2 Defendant put the gun away. (Ibid.) He asked where the victim was from. (Ibid.) The victim recognized defendant as someone he had seen two weeks earlier. (Ibid.) Defendant said to Gaines: “It’s cool.” (Ibid.) Gaines responded, “No,” and said he was “going to check [the victim’s] pockets anyway.” (Ibid.) He reached into the victim’s pocket again. (Ibid.) The victim reached in and removed Gaines’s hand. (Mosely, supra, C053758.) “Gaines grabbed [the victim] by the shirt collar and began punching him in the face. During the altercation [the victim] heard two gunshots and … Gaines announced he had been shot by defendant.” (Ibid.) Defendant “continued to shoot” at the victim who attempted to flee. (Ibid.) The victim heard several more gunshots. (Ibid.) “He was hit in the lower back and the buttocks and fell to the ground.” (Ibid.) Both codefendants ran off. (Ibid.) “Sacramento Police Officer Sean Lewis arrived at the scene [at] about 12:08 a.m. [Officer] Lewis found a nine-millimeter shell casing at the scene of the shootings, less tha[n] a foot from where [the victim] was lying.” (Mosely, supra, C053758.) After a court trial, defendant was convicted of attempted murder, attempted robbery, and two counts of possession of a handgun by a person convicted of a felony. (Mosely, supra, C053758.) The trial court found true allegations that defendant personally discharged a firearm as to the attempted murder and attempted robbery counts. (Ibid.) The court also found true allegations that all the offenses (except the handgun possessions) were committed for the benefit of a criminal street gang. (Ibid.) The court sentenced defendant to 25 years to life plus 17 years in prison. (Ibid.) In 2022, defendant filed a petition for resentencing under section 1172.6. After finding defendant made a prima facie case, the trial court issued an order to show cause and held an evidentiary hearing. The trial court denied defendant’s petition, finding the evidence showed defendant fired several shots at the victim, which demonstrated defendant’s intent to kill.

3 Defendant appeals. DISCUSSION Defendant’s appointed counsel submitted a brief pursuant to Delgadillo, supra, 14 Cal.5th at pages 231-232. Defendant was advised by counsel and this court of his right to file a supplemental brief within 30 days from the date the opening brief was filed. Defendant filed a supplemental brief. In People v. Wende (1979) 25 Cal.3d 436, our Supreme Court held that “Courts of Appeal must conduct a review of the entire record whenever appointed counsel submits a brief on direct appeal [that] raises no specific issues or describes the appeal as frivolous.” (Delgadillo, supra, 14 Cal.5th at p. 221.) The Wende procedure applies “to the first appeal as of right and is compelled by the constitutional right to counsel under the Fourteenth Amendment of the United States Constitution.” (Delgadillo, at p. 221.) In Delgadillo, our Supreme Court considered whether the Wende process applies to a trial court’s order denying a petition for postconviction relief under section 1172.6 and concluded it is not required. (Delgadillo, supra, 14 Cal.5th at pp. 221-222.) Our Supreme Court laid out applicable procedures for such cases, saying, where a defendant has filed a supplemental brief, “the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion,” but the filing of a supplemental brief alone does not compel the court to “independent[ly] review … the entire record to identify unraised issues,” although it may exercise its discretion to do so. (Id. at pp. 231-232.) Defendant claims the trial court “prejudicially refused to consider [Assembly Bill No.] 333 [(2021-2022 Reg. Sess.)] issues and gang evidence” and the court relied on that “now-invalid” evidence at the section 1172.6 evidentiary hearing. Defendant also contends insufficient evidence would support his underlying conviction without the “now-inadmissible” evidence.

4 These contentions do not relate to the trial court’s ruling on defendant’s section 1172.6 petition. Nor does defendant challenge the substantive reasons for the denial of his petition. When a contention on appeal is “wholly unrelated to the denial of [a] section 1172.6 petition for resentencing” from which the appeal is taken, the contention is “not cognizable.” (People v. Hernandez (2024) 103 Cal.App.5th 1111, 1117; see People v. DeHuff (2021) 63 Cal.App.5th 428, 438 [§ 1172.6 “does not permit a petitioner to establish eligibility on the basis of alleged trial error”].) Defendant also claims the trial court failed to exercise its discretion under Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620) and to apply the Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81) “presumption,” citing section 1385, subdivision (c) and People v. Tirado (2022) 12 Cal.5th 688. We conclude these statutes cannot be applied to the current appeal. To the extent defendant seeks the retroactive application of the other later enacted statutes to his sentence—Senate Bill 81 (Stats. 2021, ch. 721) and Senate Bill 620 (Stats. 2017, ch. 682)—the rule for retroactivity is that the judgment must not be final to apply a retroactive statute to that case. (People v. Lopez (2019) 42 Cal.App.5th 337, 341-342 [for “retroactive application of an amendment to a criminal statute, the finality of a judgment is extended until the time has passed for petitioning for a writ of certiorari in the United States Supreme Court”].) Defendant’s judgment has been final since 2008, when the time expired for him to bring a petition before the United States Supreme Court, and long before any of these changes in the law went into effect. (Cal. Rules of Court, rule 8.366; U.S. Supreme Ct. Rules, rule 13.1 [a petition for a writ of certiorari “is timely when it is filed with the [c]lerk within 90 days after entry of the order denying discretionary review”].) Thus, defendant is not eligible for the retroactive application of any of these new laws. Because defendant’s contentions are not cognizable and defendant does not demonstrate error, we affirm the denial of his petition.

5 DISPOSITION The order denying defendant’s petition for resentencing is affirmed.

/s/ ROBIE, J.

We concur:

/s/ HULL, Acting P. J.

/s/ MAURO, J.