P. v. Mosley

Filed 12/29/20 P. v. Mosley 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
QUINCEY LEE MOSLEY,
Defendant and Appellant.
B299928
(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.

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I. INTRODUCTION
Defendant Quincey Lee Mosley appeals from the trial
court’s order denying his petition under Penal Code section
1170.951 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.
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).)2 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.)
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
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 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.

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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.

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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

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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 abetting3 and the elements of malice
murder.4 Given these instructions, the jury necessarily found
3 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.”
4 The trial court delivered CALJIC No. 8.10: “The defendant
is accused in [c]ount 1 of having committed the crime of murder,

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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”].)
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
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.”

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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.

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