People v. Mosby CA2/5

FACTS AND PROCEDURAL HISTORY2

The Crime Four Trey Gangster Crips were in a gang war with the Rolling 20’s Outlaw Bloods. Mosby and two fellow Crip gang members armed themselves and drove around looking for Blood gang members to shoot. Not finding any, they went to the home of one of the Crip gang member’s relatives. At the residence, they met Rodney Rhone, a Blood gang member. A short argument ensued, and Rhone was shot repeatedly and killed. Mosby confessed to the killing to police officers, but offered an alibi defense at trial. (Mosby, supra, B137015, p. 2.)

The Trial

The jury found Mosby guilty of second degree murder (§ 187, subd. (a) [count 1]) and conspiracy to commit murder (§ 182, subd. (a)(1) [count 2]), and found that the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The jury found untrue personal firearm use allegations under section 12022.53, subdivisions (b) through (d). Mosby was sentenced to 28 years to life in prison.

Direct Appeal

On appeal before another panel of this court, Mosby argued that the trial court erred in failing to instruct the jury on the

2 We take judicial notice of the prior appellate record and…