People v. Mosley CA5 ( 2023 )

Filed 1/4/23 P. v. Mosley CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F083820
Plaintiff and Respondent,
(Super. Ct. No. BF185981A)
v.
JULIUS ANTOINE MOSLEY, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Elizabet
Rodriguez, Judge.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, and
Michael A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Poochigian, Acting P. J., Detjen, J. and Snauffer, J.
Defendant Julius Antoine Mosley pled no contest to two counts of assault with a
semiautomatic firearm and admitted two personal use of a firearm allegations. Defendant
was sentenced to a total term of 10 years four months in prison. On appeal, defendant
argues he is entitled to the retroactive benefit of Senate Bill No. 81 (2021–2022 Reg.
Sess.) (Senate Bill 81), which added subdivision (c) to Penal Code section 1385,1 and
requires dismissal of all but one sentence enhancement in most cases. The People
disagree, arguing that defendant is not entitled to the benefit of Senate Bill 81 because it
is explicitly only prospective. We affirm.
PROCEDURAL SUMMARY
On August 10, 2021, the Kern County District Attorney filed an information
charging defendant with two counts of assault with a semiautomatic firearm (§ 245,
subd. (b); counts 1 & 2). As to each count, the information further alleged that defendant
personally used a firearm (§ 12022.5, subd. (a)).
On November 2, 2021, defendant pled no contest to both counts and admitted both
firearm allegations upon the trial court’s indication that it would impose an indicated
sentence of 10 years four months.
On December 16, 2021, the trial court sentenced defendant to the indicated
sentence as follows: on count 1, three years (the low term) plus a four-year firearm
enhancement (the middle term); on count 2, two years (one-third the middle term) plus a
16-month firearm enhancement (one-third the middle term), consecutive to the term on
count 1.
On January 25, 2022, defendant filed a notice of appeal.
1 All statutory references are to the Penal Code.
2.
DISCUSSION2
Defendant contends that his sentence should be vacated, and the matter should be
remanded, in light of Senate Bill 81’s addition of subdivision (c) to section 1385. We
disagree.
Effective January 1, 2022, Senate Bill 81 amended section 1385 to add
subdivision (c) (Stats. 2021, ch. 721, § 1; Cal. Const., art. IV, § 8, subd. (c); Gov. Code,
§ 9600, subd. (a)), which provides, in part:
“(1) Notwithstanding any other law, the court shall dismiss an
enhancement if it is in the furtherance of justice to do so, except if
dismissal of that enhancement is prohibited by any initiative statute.
“(2) In exercising its discretion under this subdivision, the court shall
consider and afford great weight to evidence offered by the defendant to
prove that any of the [listed] mitigating circumstances … are present.
Proof of the presence of one or more of these circumstances weighs greatly
in favor of dismissing the enhancement, unless the court finds that
dismissal of the enhancement would endanger public safety.” (§ 1385,
subd. (c)(1)–(2).)
The mitigating circumstances listed in subdivision (c) of section 1385 include that
“[m]ultiple enhancements are alleged in a single case. In this instance, all enhancements
beyond a single enhancement shall be dismissed.” (§ 1385, subd. (c)(2)(B).)3
Defendant contends that the amendments affected by Senate Bill 81 are retroactive
to his case pursuant to In re Estrada (1965) 63 Cal.2d 740. He is mistaken.
2 Because defendant raises only sentencing-related issues, the facts underlying the
offenses are not relevant and are omitted from this opinion.
3 The court in People v. Sek (2022) 74 Cal.App.5th 657, at page 674, footnote 7,
explained that Senate Bill 81 appeared to contain a clerical error: “[t]he text of the law
refers to certain subparagraphs (A) to (I) as part of subdivision (c)(2) of section 1385, but
the text of the bill lists these subparagraphs under subdivision (c)(3). (Stats. 2021,
ch. 721, § 1.)” Assembly Bill No. 200 (2021–2022 Reg. Sess.) corrected that clerical
error by modifying section 1385 to renumber the mitigating circumstances from (c)(3)(A)
through (c)(3)(I) to subdivision (c)(2)(A) through (c)(2)(I). (Stats. 2022, ch. 58, § 15.)
3.
Ordinarily, no part of the Penal Code is retroactive “unless expressly so declared.”
(§ 3.) However, in Estrada, our Supreme Court held that a criminal statute that was
silent on the issue of retroactivity applied retroactively despite the Legislature’s failure to
expressly declare such an intent. (In re Estrada, supra, 63 Cal.2d at pp. 742–745.) The
rationale for this outcome—which has come to be known as the Estrada rule—is as
follows: when new legislation reduces the punishment for an offense and does not
specify whether the statute applies prospectively or retroactively, “we presume that the
legislation applies to all cases not yet final as of the legislation’s effective date.” (People
v. Esquivel (2021) 11 Cal.5th 671, 673–674.)
The Estrada presumption does not apply to Senate Bill 81 because the Legislature
made clear that section 1385, subdivision (c) “shall apply to sentencings occurring after
the effective date of the act that added this subdivision.”4 Because defendant’s sentence
was imposed prior to the effective date of Senate Bill 81, January 1, 2022, it has no
impact on his sentence. (People v. Flowers (2022) 81 Cal.App.5th 680, 686; People v.
Sek, supra, 74 Cal.App.5th 657, 675.) Defendant’s arguments do not persuade us to the
contrary.
Defendant contends that Senate Bill 81 makes it mandatory for the court to strike
multiple enhancements “before, during, or after trial or entry of plea,” which includes
after the sentence has been imposed. Again, we disagree with defendant’s analysis. As
discussed above, the provision regarding striking multiple enhancements is made
explicitly prospective by subdivision (c)(7) of section 1385. The fact that the statute
states that multiple enhancements “shall” be dismissed does not impact the exclusively
prospective effect of Senate Bill 81. (See § 1385, subd. (c)(2)(B).) Further,
section 1385, subdivision (c)(3) provides in full that “[w]hile the court may exercise its
4 Assembly Bill No. 200 (2021–2022 Reg. Sess.) modified subdivision (c)(7) to its
present form: “This subdivision shall apply to all sentencings occurring after January 1,
2022.” (Stats. 2022, ch. 58, § 15(c)(7).)
4.
discretion at sentencing, this subdivision does not prevent a court from exercising its
discretion before, during, or after trial or entry of plea.” That subdivision does not mean
that a trial court is required to strike an enhancement any time after trial or entry of plea. 5
Nor does it require a trial court to strike an enhancement imposed prior to the effective
date of the Senate Bill 81. It merely permits the trial court to strike an enhancement prior
to sentencing.
Senate Bill 81 is not retroactive. Defendant’s sentence need not be vacated on that
basis.
DISPOSITION
The judgment is affirmed.
5 Defendant’s suggestion that the trial court may strike an enhancement any time
after a trial or plea is not a reasonable reading of section 1385, subdivision (c)(3).
Defendant’s reading of that section is effectively that the trial court may strike an
enhancement at any time, without limitation. Such a reading would render meaningless
essentially all recall of sentence provisions (e.g., § 1172.1, subd. (a)(1) [permitting a trial
court to recall a sentence within 120 days of a defendant’s commitment to the custody of
the Department of Corrections and Rehabilitation]) and subdivision (c)(7), which was
implemented as part of the same bill. Even if we thought there was some ambiguity
regarding the retroactivity of Senate Bill 81—we do not—that outcome would convince
us that the Legislature did not intend subdivision (c)(3) to require retroactive application
of subdivision (c)(2). (See People v. Hudson (2006) 38 Cal.4th 1002, 1009–1010
[“interpretations that render statutory terms meaningless as surplusage are to be
avoided”].)
5.