People v. Mitchell CA2/7

Filed 1/9/24 P. v. Mitchell CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B324521

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA018803) v.

DIONDRE KEISHONE MITCHELL,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Mike Camacho, Judge. Affirmed. Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Zee Rodriguez and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent. _____________________________________

Diondre Keishone Mitchell appeals from a postconviction order denying his petition for resentencing under Penal Code section 1172.6.1 The trial court determined at the prima facie review phase that Mitchell was not eligible for relief as a matter of law because the record for his second degree murder conviction showed he was the actual killer. On appeal, Mitchell contends the trial court erred in making that determination. We affirm. FACTUAL AND PROCEDURAL BACKGROUND A. The Underlying Crime, Conviction, and Direct Appeal The following factual summary is drawn from our nonpublished opinion affirming Mitchell’s conviction, which we quote for the limited purpose of providing context for the instant appeal. We do not use it to determine if Mitchell made a prima facie showing. (See People v. Flores (2022) 76 Cal.App.5th 974, 988; People v. Clements (2022) 75 Cal.App.5th 276, 292.) “[D]uring the evening of June 2, 1993, [Mitchell, a 16-year- old,] obtained a .25 caliber pistol from 17-year-old Michael W. who kept the gun for personal protection. Thereafter, [Mitchell] rode off on his bicycle accompanied by Michael W. and 17-year- old Keith C. on a second bicycle. At approximately 10:30 p.m., [Mitchell] confronted another cyclist, Pablo Moya, and blocked his way. He then shot and killed Moya as he protested ‘no problema, no problema.’ [Mitchell] associated with the 76th East Coast Crips gang and was known as ‘Six Shot.’ He had been involved in an altercation with Mexican gang members one week earlier, along with Michael W., and the two had been expelled from school for this reason. After the murder, [Mitchell] was giggling