People v. Mosley CA3

Filed 1/26/22 P. v. Mosley CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Lassen) ----

THE PEOPLE,

Plaintiff and Respondent, C090973

v. (Super. Ct. No. CH036039)

DIMITRIC RENE MOSLEY, JR.,

Defendant and Appellant.

A jury found defendant Dimitric Rene Mosley, Jr., guilty of conspiracy to bring into prison less than an ounce of cannabis.1 Defendant contends his conviction must be

1 In 2017, the Legislature substituted the term “cannabis” for “marijuana” in the Health and Safety Code. (Stats. 2017, ch. 27, §§ 113-160; Health & Saf. Code, § 11032.) Consequently, we use the term “cannabis” throughout this opinion for all purposes.

1

reversed under Proposition 64, which decriminalized adult possession of less than an ounce of cannabis in most situations. We will affirm the judgment. BACKGROUND In June and July of 2016, defendant, while in prison, coordinated with his wife to bring 4.1 grams of cannabis into the prison. Defendant was charged with conspiracy to bring cannabis and methamphetamine into a state prison (Pen. Code, §§ 182, subd. (a), 4573) and possession of methamphetamine in prison (Pen. Code, § 4573.6). Before trial, the People dismissed the methamphetamine possession count and stated at trial the conspiracy charge was based only on bringing in cannabis. On January 29, 2019, a jury found defendant guilty of conspiracy to bring cannabis into a state prison. Defendant was sentenced to the middle term of three years, doubled to six years for a prior strike conviction, to run consecutive to any sentence defendant is currently serving. DISCUSSION Defendant argues that after Proposition 64, it is no longer illegal to bring 28.5 grams or less of cannabis into a prison. Consequently, defendant’s conviction must be reversed because he cannot be guilty of a conspiracy to engage in a lawful act. Defendant also alleges ineffective assistance of counsel if his claim is forfeited. Penal Code section 182 prohibits conspiring to commit any crime. (Pen. Code, § 182, subd. (a).) Penal Code section 4573 provides, in pertinent part: “any person, who knowingly brings or sends into, or knowingly assists in bringing into, or sending into, any state prison . . . any controlled substance, the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code . . . is guilty of a felony . . . .” (Pen. Code, § 4573, subd. (a).) In July 2016, at the time of defendant’s offense, and immediately prior to Proposition 64 passing, Health and Safety