People v. Mase CA1/5 ( 2021 )

Filed 10/14/21 P. v. Mase CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for pur-
poses of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A160275
v. (San Mateo County
ULUAO DAVID MASE, Super. Ct. No.
18NF011762)
Defendant and Appellant.
Appellant Uluao David Mase was sentenced to 21 years in
prison based on his role in a violent attack on a high school
student, 14 years of which were attributable to prior conviction
allegations. We reject his claim that the court should have
stricken the prior conviction allegations, but remand the case so
that the court can pronounce sentence on one of the counts.
I. BACKGROUND
Appellant, who was 27 years old at the time of the offenses
in this case, has abused drugs and alcohol since he was a
teenager. In 2009, when he was 18, he and three others robbed a
man on public transportation by pushing him to the ground and
stealing his belongings. When he was arrested a short while
later, he was carrying a semiautomatic weapon. Appellant was
convicted of second-degree robbery and various weapon
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possession counts, sentenced to two years in prison, and paroled
in July 2011. (Pen. Code, §§ 211, 12280, subd. (b), 12025, subd.
(a)(2), 12031, subd. (a)(1).)1
Appellant committed a carjacking in September 2011 and
was convicted of that offense in June 2012. (§ 215, subd. (a).) He
was released from prison in September 2016.
The current offenses were committed September 14, 2018.
Sixteen-year-old John Doe got into a physical fight with
appellant’s nephew, another high school student. A female
student broke up the fight, and Doe’s only injury was a scratched
face. The boys went their separate ways.
Later, appellant and several other men confronted Doe as
he was walking with a friend. They brutally beat him, stepping
on his face, punching him, and kicking him. Doe recorded part of
the attack on his cell phone, which was taken from him by the
assailants and was later found in the possession of a homeless
man. The assailants also took Doe’s backpack and belt. Doe was
transported to the emergency room for the treatment of
contusions, a concussion, and damaged teeth which he suffered
during the attack. A day later, his eyes were swollen and black
and blue and he had bruising in his mouth and inner lip.
Appellant was linked to the attack through video from a
surveillance camera and from Doe’s recovered cell phone. He was
tried before a jury and convicted of assault by means of force
likely to cause great bodily injury (count 1) and battery with
serious bodily injury (count 2), each accompanied by a great
1 Further statutory references are to the Penal Code.
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bodily injury enhancement allegation. (§§ 245, subd. (a)(4), 243,
subd. (d), 12022.7, subd. (a).) Two prior serious felony
enhancement allegations and one allegation under the three
strikes law based on the prior robbery and carjacking convictions
were found true by the court in a bifurcated proceeding. (§§ 667,
subd. (a), 667, (b)–(j), 1170.12.)2
At sentencing, appellant requested that the court exercise
its discretion to strike the serious felony priors and the strike
allegation. He filed a sentencing brief asking to be placed on
probation and provided with drug treatment through the
Delancey Street program, or, alternatively, to be sentenced to
prison for four years. Among the factors noted was that
appellant had a long history of drug addiction which had
contributed to his criminal history; that he had been enrolled in
the Choices Program, which teaches individuals to control their
behavior and avoid lashing out; that he was now committed to
seeking rehabilitation and had been accepted into the Delancey
Street program; and that he had been youthful when he
committed his prior offenses. Appellant had written a letter
apologizing to the victim of the current offense in which he
explained that while there was “no excuse” for his actions, he had
made the poor decision to defend his nephew while his judgment
was clouded with intoxication and with grief over the recent
death of a family member.
2 The court ultimately struck two prison priors under
section 667.5, subdivision (b) due to a change in the law that
rendered those priors inapplicable to the present case.
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The trial court declined to strike the priors. It stated that
defense counsel had made a “very compelling” argument for
probation in the sentencing brief, but that it was troubled by the
violent nature of all of appellant’s crimes. The court noted that
although appellant was young when he committed his prior
offenses, he had had “multiple opportunities” to deal with his
addiction and had committed the current offense while he was
still on parole. The court also commented on the youth of the
victim in the current case and the violence of the offense: “The
victim was young. He was a child, a teenager, 16 years old, not
even an adult. And the crime was clearly planned by [appellant]
and his two codefendants. It’s just extremely violent. It’s
something for which we need to protect the public from . . . .”
The court imposed an aggregate prison term of 21 years as
had been recommended by the prosecution: the four-year upper
term on the assault count, doubled to eight years under the three
strikes law, plus a consecutive three-year term for the great
bodily injury enhancement and consecutive five-year terms for
each of the prior serious felony enhancements. It stayed the
sentence on the battery with serious bodily injury count pursuant
to section 654.
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II. DISCUSSION
A. Failure to Strike the Prior Conviction Allegations
Appellant argues the trial court should have stricken both
the three strikes allegation and the five-year prior serious felony
enhancements. We disagree.
Under section 1385, subdivision (a), a “judge . . . may,
either of his or her own motion or upon the application of the
prosecuting attorney, and in furtherance of justice, order an
action to be dismissed.” This provision applies to prior conviction
allegations under the three strikes law (People v. Superior Court
(Romero) (1996) 13 Cal.4th 497 (Romero)) and since January 1,
2019, has applied to five-year prior serious felony enhancements
under section 667, subdivision (a). (People v. Shaw (2020) 56
Cal.App.5th 582, 586–587 (Shaw).)
When determining whether to strike a finding under the
three strikes law, the court should consider “whether, in light of
the nature and circumstances of [the defendant’s] present
felonies and prior serious and/or violent felony convictions, and
the particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme’s spirit, in whole or
in part, and hence should be treated as though he had not
previously been convicted of one or more serious and/or violent
felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) We
review a court’s decision to deny a motion to strike for abuse of
discretion and will find such an abuse only in extraordinary
circumstances, where reasonable minds could not differ as to
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whether the defendant falls outside the spirit of the three strikes
law. (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).)
Similarly, a court deciding a motion to strike a five-year
prior serious felony enhancement must consider both the nature
of the offense and the nature of the offender. (Shaw, supra, 56
Cal.App.5th at p. 587.) As with a decision not to dismiss a prior
conviction allegation under the three strikes law, we review the
denial of a motion to dismiss a prior serious felony enhancement
for abuse of discretion. (Ibid.) “No error occurs if the trial court
evaluates all the relevant circumstances to ensure that the
punishment fits the offense and the offender.” (Ibid.)
Appellant notes that he was only 18 and 20 years old,
respectively, when he committed his prior crimes, and he argues
his culpability was diminished as a consequence. And in the trial
court, he emphasized his history of drug addiction as a factor
contributing to his offenses. These factors did not compel the
court to grant the motion to strike. Although an offender’s
youthfulness at the time of the priors can be a mitigating factor,
it is not dispositive of the issue. (See People v. Avila (2020) 57
Cal.App.5th 1134, 1142 (Avila).) Nor is drug addiction
“necessarily regarded as a mitigating factor when a criminal
defendant has a long-term problem and seems unwilling to
pursue treatment.” (People v. Martinez (1999) 71 Cal.App.4th
1502, 1511.)
Here, the court did not fail to consider appellant’s youth or
drug addiction at the time he committed his prior crimes. (Cf.
Avila, supra, 57 Cal.App.5th 1141–1142 [court erred in believing
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it could not consider youth as a factor affecting the decision on a
Romero motion].) “My other concern is also, you know, I get that
he is young. I get that he was even younger when the priors
occurred. But he’s had multiple opportunities to deal with his
addiction, and he didn’t. [¶] So I think at this point, you know,
with the last sentence in 2012 being six years for the conviction of
the carjacking; then he was on parole; he would have had the
opportunity to take care of his addiction during that period of
time; he did not; and he committed the current offense while on
parole.”
Appellant notes that he did not suffer any convictions in
the more-than-six years between his conviction for carjacking in
June 2012 and the current offense, which he committed in
September 2018. The court was not required to treat the relative
remoteness of the prior as a factor in favor of striking it when
appellant spent much of the intervening years in prison and
committed the current offense while still on parole. Appellant
argues that prison is “a place ridden with violence,” suggesting
that his ability to serve his sentence without picking up another
conviction is a factor in his favor. But the trial court could
reasonably determine that appellant’s prior convictions should
not be viewed as remote when he was not out of custody for most
of the time since his most recent conviction.
Appellant also argues that his 21-year sentence is absurd
when compared to the two-year terms that two of his cohorts
received. However, a sentencing court must consider the
defendant's culpability individually, not in comparison to that of
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a codefendant. (See People v. Ledesma (2006) 39 Cal.4th 641,
744.)
There is no indication the court failed to consider any factor
that was relevant to the motion to strike. (Carmony, supra, 33
Cal.4th at p. 378.) It simply decided that the violent nature of
appellant’s crimes against the teenage victim, combined with his
failure to address the drug addiction which he claimed was a
cause of those crimes, did not warrant striking the prior felony
allegations. “ ‘[I]t is not enough to show that reasonable people
might disagree about whether to strike one or more’ prior
conviction allegations.” (Carmony, supra, 33 Cal.4th at p. 378.)
“[A] trial court does not abuse its discretion unless its decision is
so irrational or arbitrary that no reasonable person could agree
with it.” (Id. at p. 377; see also People v. Brugman (2021) 62
Cal.App.5th 608, 637.) Appellant’s is not one of those
extraordinary cases where we can say that reasonable minds
would not differ about the appropriate sentence.
B. Battery with Serious Bodily Injury Count
Although sentence on the battery with serious bodily injury
conviction in count 2 was stayed under section 654, the jury
found true a great bodily injury enhancement under section
12022.7, subdivision (a) on that count. Appellant argues the
enhancement was not authorized, a point which the Attorney
General concedes. We agree. Section 12022.7, subdivision (g)
provides that the statute “shall not apply if infliction of great
bodily injury is an element of the offense.” Serious bodily injury,
which is equivalent to great bodily injury, is an element of a
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section 243, subdivision (d) violation. A section 12022.7,
subdivision (a) allegation cannot be applied to a violation of
section 243, subdivision (d). (People v. Johnson (2016) 244
Cal.App.4th 384, 391; People v. Hawkins (1993) 15 Cal.App.4th
1373, 1375.)
But there is a more fundamental problem with the sentence
on count 2. The abstract of judgment does not reflect the
conviction for battery with serious bodily injury at all, and the
reporter’s transcript reflects that the court did not impose
sentence on that count before staying it. As the court explained
in People v. Alford (2010) 180 Cal.App.4th 1463, 1469 (Alford), “to
implement section 654, the trial court must impose sentence on
all counts, but stay execution of sentence as necessary to prevent
multiple punishment.” It is not adequate to stay the sentence
under section 654 without first pronouncing sentence:
“[S]entence must be imposed on each count, otherwise if the
non-stayed sentence is vacated, either on appeal or in a collateral
attack on the judgment, no valid sentence will remain.” (Ibid.; see
also People v. Duff (2010) 50 Cal.4th 787, 796.) The failure to
impose sentence on each count results in an unauthorized
sentence. (Alford, at p. 1472.)
The parties agree the court should have pronounced
sentence on the battery with serious bodily injury count; the
question is one of remedy. The People note that the court
imposed the upper term on the unstayed assault count and
doubled the term under the strikes law, and they ask us to use
our authority under section 1260 to modify the judgment by
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similarly imposing the upper term on the battery count and then
doubling it. They argue the court “undoubtedly” would impose
this sentence on remand, and that it would be futile to hold a
hearing to resentence appellant when the actual time served will
not be altered. They rely on Alford, supra, 180 Cal.App.4th at
page 1473, in which the appellate court modified the sentence to
impose the middle term on a count that had been stayed under
section 654 without the pronouncement of sentence. The Alford
court concluded that because the trial court had imposed the
middle term on the unstayed count, which involved the same
conduct, it would “undoubtedly” impose the middle term on the
stayed count. (Ibid.)
Appellant, on the other hand, argues that the case should
be remanded because we cannot say what sentence the trial court
would “undoubtedly” impose for battery with serious bodily
injury. (See People v. Mani (Sept. 30, 2021, C088716)
___ Cal.App.5th ___ [2021 Lexis Cal.App. 820, *53 [case
remanded to correct Alford error because appellate court could
not say what sentence trial court would “undoubtedly” impose on
stayed count].) He notes that the trial court expressly relied on
two aggravating factors when imposing the upper term on the
assault count: (1) the crime involved great bodily injury; and
(2) the victim’s age. Appellant posits that an upper term
sentence was not inevitable on the battery with serious bodily
injury count, because the great bodily injury factor could not be
used to aggravate the sentence on that count, as great bodily
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injury is an element of that offense. (People v. Burbine (2003)
106 Cal.App.4th 1250, 1261; Cal. Rules of Court, rule 4.420(d).)
Although an appellate court may substitute the appropriate
sentence for an unauthorized sentence, section 1260 does not
permit it to make its own discretionary sentencing decisions.
(See People v. Lawley (2002) 27 Cal.4th 102, 172.) Judicial
economy is laudable and it is our goal whenever possible, but we
simply cannot say that the trial court would “undoubtedly” have
imposed the upper term here. The case must be remanded so the
trial court can impose sentence on count 2, that sentence to be
stayed under section 654.
III. DISPOSITION
The case is remanded so that appellant can be sentenced on
count 2 consistent with the views in this opinion. A great bodily
injury enhancement under section 12022.7, subdivision (a) may
not be attached to that count. When appellant is resentenced,
the abstract of judgment should be amended to reflect the
conviction and sentence on that count, as well as the stay of that
sentence under section 654, and the amended abstract should be
forwarded to the Department of Corrections and Rehabilitation.
The judgment is otherwise affirmed.
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NEEDHAM, J.
We concur.
JACKSON, P.J.
BURNS, J.
People v. Mase / A160275
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