People v. Mosley CA1/2

Filed 10/22/15 P. v. Mosley CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A140966 v. DEMETRIUS MOSLEY, (Contra Costa County Super. Ct. No. 1217363) Defendant and Appellant.

Defendant Demetrius Mosley was convicted of receiving stolen property and first degree burglary with a finding that a person other than an accomplice was present during the burglary.1 This finding elevated the burglary conviction to a violent felony within the meaning of Penal Code section 667.5, subdivision (c)(21),2 the effect of which was to limit defendant’s presentence custody credits to 15 percent of his actual credits. On appeal, defendant contends this finding was erroneous because the burglary was completed when he and his accomplice entered the residence, at which time no one else was present. This claim lacks merit, and we affirm. EVIDENCE AT TRIAL On the morning of July 27, 2012, Masayo Engel left home to pick up her 15-year- old son, Christopher, who was about five minutes away. They returned directly home. When they arrived, they saw a silver Honda parked in front of their house.

1 The receiving stolen property conviction is irrelevant to the issue raised on appeal, so we omit discussion of the facts surrounding that offense. 2 All statutory references are to the Penal Code.

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Christopher got out of the car in the driveway, and Masayo backed her car into the garage. Christopher entered the house through a door connecting the garage to the house. He walked through the kitchen and then heard a noise so he walked into the hallway. A man he did not know walked out of his father’s computer room. Upon seeing Christopher, the man announced, “They’re back.” Christopher ran back out through the garage, telling his mother to “run away” because there was someone in the house. As the Engels ran out of the garage onto the driveway, they saw two men coming out of the house behind them. The men ran across the garage and into the backyard. The Engels ran to get help from a neighbor, and as they did so, Christopher took a video of the car that was parked in front of their house, capturing the car’s license plate. The neighbor was not home so they turned back towards their house. As they turned back, they saw someone hiding in a bush across the street. A man came out from behind the bush, and they recognized him as one of the men they saw leaving their house. He asked, “Are you looking for someone?,” and then dashed to the silver Honda, jumped in, and sped away. Christopher called the police, who traced the license plate in the video to a car owned by Jennica Tran, defendant’s girlfriend. Tran had loaned her car to defendant that morning and then given him and a friend a ride to Fremont that afternoon. Later that same day, the police showed the Engels a photo lineup containing a photograph of defendant. Masayo immediately identified a photograph of defendant as the man she saw come out from behind the bush and get into the car. She also identified him at trial. Christopher identified two photographs as possibly one of the men he saw coming out of the house, although neither photograph depicted defendant. Items stolen from the Engels’ house were recovered two days after the burglary behind a house in Fremont. By information filed October 11, 2012, defendant was charged with first degree residential burglary (§§ 459/460) and receiving stolen property (§ 496, subd. (a)). The information also alleged numerous special allegations, including that defendant