People v. Mosley CA3

Filed 10/27/23 P. v. Mosley CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C097979

Plaintiff and Respondent, (Super. Ct. No. 05F02507)

v.

DIMITRIC MOSLEY, JR.,

Defendant and Appellant.

Defendant Dimitric Mosley, Jr., appeals the trial court’s denial of his petition for recall and resentencing under Penal Code1 section 1170.18 and Proposition 47 (Safe Neighborhoods and Schools Act). In his petition, defendant sought resentencing for two of his 2006 convictions for being a felon in possession of a firearm. Defendant filed a petition pursuant to Health and Safety Code section 11361.8 under Proposition 64 (Control, Regulate and Tax Adult Use of Marijuana Act) in Monterey County to have his 2003 felony conviction for violating Health and Safety Code section 11359 reduced to a

1 Undesignated statutory references are to the Penal Code.

1

misdemeanor. Because the Monterey County Superior Court granted that Proposition 64 petition, defendant alleged he was entitled to be resentenced on the two 2006 convictions premised upon the previously designated 2003 felony conviction. The trial court concluded section 1170.18 required defendant to file his petition in the court in which he was convicted of the underlying drug crime (i.e., Monterey County) and that even if his prior drug conviction was now a misdemeanor, section 1170.18, subdivision (k) did not restore his right to possess a firearm. On appeal, counsel filed a brief raising no arguable issues under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Counsel requested we exercise our discretion to review the entire record for arguable issues on appeal. Defendant filed a supplemental brief arguing the trial court erred in denying his petition because it was filed in the correct court and the reduction of his convictions under Proposition 64 meant they were deemed never to have occurred, citing Health and Safety Code section 11361.9, subdivision (f). We shall affirm. BACKGROUND In 2003, defendant was convicted of felony possession of marijuana for sale in Monterey County. (Health & Saf. Code, § 11359.) The Monterey County Superior Court sentenced him to probation for five years. In 2006, the amended information charged defendant with attempted murder (§§ 664, 187, subd. (a)), attempted robbery (§§ 664, 211), and two counts of possession of a firearm by a felon premised on his 2003 conviction (former § 12021, subd. (a)(1)). As to the attempted murder and attempted robbery charge, the information further alleged enhancements not relevant here. The basic facts taken from the probation report establish the victim was walking down the street when defendant and his accomplice confronted the victim. Defendant pulled out a gun. Defendant then put his gun away, but the victim and the accomplice started fighting. Defendant pulled out his gun again and shot at the victim but struck the accomplice. As the victim was running away, defendant shot at him