People v. Mosqueda CA3

Filed 5/1/23 P. v. Mosqueda CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C096178

Plaintiff and Respondent, (Super. Ct. No. 08F07848)

v.

FRANK MOSQUEDA,

Defendant and Appellant.

In 2010, defendant Frank Mosqueda was found guilty of attempted murder, burglary, and other crimes for his attack on his ex-wife. Defendant was sentenced to 34 years in prison, plus a term of life with the possibility of parole. In 2019, defendant filed a petition for resentencing under Penal Code section 1170.91 (statutory section citations that follow are found in the Penal Code unless otherwise stated ) based on alleged trauma from military service. The trial court denied the petition, concluding defendant was

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neither eligible nor suitable for resentencing under the statute. On appeal, defendant contends the trial court erred in denying his petition. We affirm the trial court’s order.

FACTS AND HISTORY OF THE PROCEEDINGS In September 2008, defendant ransacked and defaced his ex-wife’s home, damaging furniture and pouring gasoline throughout the home. When his ex-wife came home, he hit her with a rifle and tried to drag her inside. Neighbors tried to intervene, but he threatened to shoot and kill them. Defendant later told law enforcement officers he originally planned to kill his ex-wife but then decided he wanted to kill himself in front of her. In 2010, after a court trial, defendant was found guilty of attempted murder (§§ 664, 187, subd. (a)), residential burglary (§ 459), assault with a firearm (§ 245, subd. (a)(2)), domestic violence (§ 273.5, subd. (a)), vehicle theft (§ 10851, subd. (a)), two counts of preventing or dissuading a witness (§ 136.1, subd. (c)(1)), nine firearm enhancements (§§ 12022, subd. (a)(1), 12022.53, subd. (b), 12022.5, subd. (a)(1), 12022.7, subd.(e)), and a vulnerable victim enhancement (§ 667.9, subd. (a)). The trial court sentenced defendant to a determinate term of 34 years, plus an indeterminate term of life with the possibility of parole. The court did not mention it considered defendant’s military service at sentencing. In 2019, defendant filed a petition in propria persona for resentencing under section 1170.91, alleging “he suffered the effects of (PTSD) prior and during his arrest in the instant offense.” He included a declaration, stating he was a member of the United States Army from 1949 to 1952; he suffered a head injury during training; he was married to his “wife for over 40 years and the [divorce] caused me to have mental problems”; and “[o]n the day that I was arrested, it was my intent to kill myself to let my wife see the pain my [divorce] was causing me [was] much wors[e] [than] being on the front lines of war.”