People v. Mazink CA2/7 ( 2021 )

Filed 1/11/21 P. v. Mazink CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B306390
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA047937)
v.
IEDON LEMOND MAZINK,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Richard M. Goul, Judge. Affirmed as modified
with directions.
Cheryl Lutz, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Senior Assistant
Attorney General, Charles C. Ragland and Robin Urbanski,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Iedon Lemond Mazink appeals from the superior court’s
order denying his motion for resentencing, contending his
sentence is illegal because the trial court imposed two five-year
enhancements under Penal Code section 667, subdivision (a)(1),1
for two prior serious felony convictions that were not brought and
tried separately. We agree (as do the People) with Mazink’s
contention, modify his sentence, and affirm the order as modified.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Trial Court Sentences Mazink in 2001
In March 2001 the People charged Mazink with battery
inflicting serious bodily injury and mayhem. The People also
alleged Mazink had two prior convictions for willfully and lewdly
committing a lewd or lascivious act on a child under the age of
14 years, in violation of section 288, subdivision (a), that were
serious felonies within the meaning of section 667,
subdivision (a)(1), and serious or violent felonies within the
meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)). The People also alleged that the two offenses
under section 288, subdivision (a), were charged as separate
counts in Los Angeles County Superior Court case number
NA023830, that on March 29, 1995 Mazink was convicted on both
counts, and that he served a prior prison term for those offenses,
within the meaning of section 667.5, subdivision (b).
In May 2001 a jury found Mazink guilty of battery and
mayhem, and he admitted the allegations. The trial court
1 Undesignated statutory references are to the Penal Code.
2
sentenced Mazink to a prison term of 36 years to life, consisting
of 25 years to life under the three strikes law, plus two five-year
terms under section 667, subdivision (a)(1) (one for each prior
serious felony conviction), and a one-year enhancement under
section 667.5, subdivision (b), for the prior prison term.2 Mazink
appealed, and this court affirmed. (People v. Mazink (Apr. 23,
2002, B151590) [nonpub. opn.].)
B. Mazink Moves To Modify His Sentence in 2020
In May 2020 Mazink filed a motion “for modification of
sentence,” arguing, among other things, the imposition of the two
five-year enhancements “constitute[d] an illegal sentence.”
Mazink argued the trial court could only impose one five-year
enhancement under section 667, subdivision (a)(1), because the
prior convictions “arose from the same case.” The superior court
denied the motion for “lack of cause,” ruling Mazink was
“properly sentenced to two 5-year priors per” section 667,
subdivision (a)(1), because the “two state prison commitments
arose from [case number] NA023830 for two convictions of”
violating section 288, subdivision (a). Mazink timely appealed.
2 The trial court imposed and stayed under section 654
execution of the sentence on the mayhem conviction.
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DISCUSSION
Mazink argues that, because the two prior serious felony
convictions were not brought and tried separately, the
“imposition of two five-year enhancements resulted in an illegal
sentence.”3 He is correct.
Section 667, subdivision (a)(1), provides that “‘any person
convicted of a serious felony who previously has been convicted of
a serious felony . . . shall receive, in addition to the sentence
imposed by the court for the present offense, a five-year
enhancement for each such prior conviction on charges brought
and tried separately.’” (People v. Sasser (2015) 61 Cal.4th 1, 9-10;
see People v. Zamora (2019) 35 Cal.App.5th 200, 206 [“‘“brought
and tried separately”’ means ‘that the underlying proceedings
must have been formally distinct, from filing to adjudication of
3 Mazink does not challenge the one-year enhancement
under section 667.5, subdivision (b), which currently provides
“the court shall impose a one-year term for each prior separate
prison term for a sexually violent offense as defined in
subdivision (b) of Section 6600 of the Welfare and Institutions
Code.” (See Welf. & Inst. Code, § 6600.1 [“If the victim of an
underlying offense that is specified in subdivision (b) of Section
6600 [of the Welfare and Institutions Code] is a child under the
age of 14, the offense shall constitute a ‘sexually violent offense’
for purposes of Section 6600.”]; People v. Fraser (2006)
138 Cal.App.4th 1430, 1443 [“where the victim is a child under
[the] age of 14, a showing of force or duress is not required”];
People v. Ruiz (1996) 44 Cal.App.4th 1653, 1667, 1671 [“a trial
court may properly impose a five-year enhancement pursuant to
section 667, subdivision (a), and a one-year enhancement
pursuant to section 667.5, subdivision (b),” where the
enhancements are imposed on different offenses].)
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guilt’”].) Therefore, where the People bring and try the prior
serious felonies “together under the same case number,” and the
felonies are “adjudicated in the same proceeding” (People v. Jones
(2015) 236 Cal.App.4th 1411, 1415), the court may not impose
multiple sentence enhancements under section 667,
subdivision (a)(1), for those convictions, and doing so results in an
unauthorized sentence. We review for substantial evidence the
superior court’s finding the prior convictions were brought and
tried separately. (See People v. Wiley (1995) 9 Cal.4th 580, 592.)
Mazink argues, the People concede, and we agree the two
prior offenses under section 288, subdivision (a), were not
brought and tried separately. To the contrary, they were charged
together (as separate counts) under a single case number, and
both counts were adjudicated on the same day. Because they
were not “‘formally distinct, from filing to adjudication’” (People v.
Zamora, supra, 35 Cal.App.5th at p. 206), one of the five-year
enhancements must be stricken. (See People v. Sanders (2012)
55 Cal.4th 731, 743, fn. 13 [“it is well established that the
appellate court can correct a legal error resulting in an
unauthorized sentence . . . at any time”]; People v. Picklesimer
(2010) 48 Cal.4th 330, 338 [trial court has jurisdiction to correct
an unauthorized sentence at any time].)
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DISPOSITION
Mazink’s sentence is modified to include only one five-year
sentence enhancement under section 667, subdivision (a)(1). As
modified, Mazink’s sentence is affirmed. The superior court is
directed to prepare an amended abstract of judgment and to
forward it to the Department of Corrections and Rehabilitation.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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