People v. Mason CA2/3 ( 2021 )

Filed 9/27/21 P. v. Mason CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, B309053
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. VA141042
v.
EARL MASON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, John A. Torribio, Judge. Affirmed.
Randall Conner, under appointment by the Court
of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
In 2017 a jury convicted defendant and appellant Earl
Mason of two counts of attempted voluntary manslaughter,
shooting at an occupied motor vehicle, and other crimes.
We affirmed Mason’s conviction in part, reversed it in part,
and remanded the case for resentencing. (People v. Mason
(Aug. 15, 2019, B283892) [nonpub. opn.] (Mason I).) Mason
appeals from the judgment after resentencing.
BACKGROUND
Our opinion in Mason’s previous appeal sets forth the facts.
In summary, deputies were parked near a liquor store on
the evening of January 18, 2016. A Lincoln Town Car sped by,
then stopped in front of the liquor store. Mason burst out of
the driver’s side and fired several shots at a white Honda Civic
as it drove away. One deputy saw two people—identified only
as John Doe and Jane Doe—in the Civic. When Mason turned
around and saw the deputies, he ran away, handing the gun
to a fellow gang member. Deputies caught him. (Mason I.)
Surveillance video showed Mason and another man in gang
colors in a confrontation with Jane Doe inside the store. Outside
the store, Mason and John Doe began fighting with their fists.
Mason got into a car that drove away. John Doe and Jane Doe
got into the Civic. Mason then drove up in the Lincoln, the Civic
took off, and Mason got out of the Lincoln and started firing at
the Civic. Police never found John Doe or Jane Doe. (Mason I.)
The People charged Mason with shooting at an occupied
motor vehicle (count 1); attempted murder of John Doe and Jane
Doe (counts 2 and 3); possession of a firearm by a felon (count 4);
and possession of ammunition by a felon (count 5). The People
alleged that, in the commission of the attempted murders, Mason
personally used a firearm and that he committed all five crimes
to benefit a gang. The People also alleged Mason had suffered
two prior strikes for robbery.
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The jury convicted Mason of attempted voluntary
manslaughter of John Doe and Jane Doe as lesser crimes
to attempted murder. The jury found Mason guilty on the
remaining charges and found the firearm and gang allegations
true. Mason admitted his strike priors. The trial court sentenced
Mason to 100 years to life in the state prison.
On appeal we concluded the People had not met their
burden to prove the gang enhancements because the prosecutor
never asked the gang expert about the gang’s primary activities.
Accordingly, we reversed the true findings on the gang
allegations and struck them. We rejected Mason’s other
challenges to his conviction. We remanded the case to the
trial court for resentencing and for correction of Mason’s
presentence custody credits. We noted the court had discretion
to impose concurrent or consecutive sentences on counts 2 and 3,
and we directed the court to exercise that discretion. We also
stated the court should exercise its discretion on remand to strike
—or decline to strike—the firearm and serious prior felony
enhancements under legislation enacted after Mason’s 2017
sentencing. (Mason I.)
Back in the trial court, both the People and defense counsel
filed briefs regarding resentencing. The prosecutor listed the
circumstances the People believed to be in aggravation and
requested a sentence of 86 years to life. Notwithstanding our
clear statement in Mason I that the court could run the sentences
on counts 2 and 3 concurrently, the prosecutor continued to
argue those counts “each require[ ] a separate and consecutive
sentence” because the crimes were “perpetuated [sic] on separate
victims.”
Mason’s counsel asked the court to strike the firearm
enhancements and serious felony priors, and to impose
concurrent sentences on counts 2 and 3. Noting “no one
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was hit or harmed in this incident,” counsel argued Mason’s
“target was the male in the car and not the female so concurrent
sentences on counts 2 and 3 would be well within the sound
discretion of the Court.”
At the resentencing hearing on November 10, 2020, the
trial court summarized our directions and instructions contained
in Mason I. The court then detailed Mason’s criminal history:
“Mr. Mason was approximately 40 years old
when these crimes occurred. [The] [c]ourt
notes that his record starts in 1991 with a
sustained petition for [a violation of Penal Code
section] 245(a)(1), a violent crime. In 1996
he was convicted of robbery. In 2004 he was
convicted of exhibiting a firearm. [In] 2010
he was convicted of felony sales of drugs.”
The court mentioned Mason’s three misdemeanor
convictions for driving under the influence, noting “[e]ven
driving under the influence presents danger to the community.”
The court said Mason’s third DUI offense was in 2015 “and then
in 2016 the present offense occurred.” The court continued,
“So he’s really never gone any period of life without committing
some type of crime. And there’s a pattern. . . . So he has been
a consistent danger to the community for 20 years.”
The court said it remembered the case: “Mr. Mason was
the instigator of a physical altercation with one of the victims.
He left the scene. When he returned, he proceeded to fire several
rounds at the vehicle occupied by individuals before fleeing the
scene and handing off the gun to another gang member as well.”
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The court continued,
“The gentleman’s conduct has been consistent
with violence. In this particular instance
there seemed to be no reason for the violence.
There isn’t any reason that would justify it,
but sometimes one looks at the violence to see
if there was an explanation for it that might
mitigate the conduct—you know, mutual
combat, something like that that escalates out
of control—but there is nothing that the court
can see in this case that would mitigate or
inure to the benefit of the defendant . . . .”
Accordingly, the court declined to impose concurrent sentences
or to strike the firearm and serious felony prior enhancements.
The court then resentenced Mason to consecutive
indeterminate terms of 25 years to life on counts 2 and 3, plus 10
years on each count for the personal use of a firearm. On count 4
—felon with a gun—the court chose the upper term of three years
and doubled it. The court imposed five years each for the two
serious felony priors. The court stayed the sentences on counts
1 and 5. The total sentence thus was a determinate term of
36 years plus two consecutive indeterminate terms of 25 years
to life.1
1 Even though the trial court noted the gang enhancements
had been stricken, the minute order of the November 2020
resentencing erroneously stated the sentences on counts 1 and 5
would remain the same. As imposed and stayed in 2017,
the sentences on both of those counts included time for the
gang enhancements. In April 2021 appellate counsel sent
the trial court a letter asking the court to correct the record.
On May 5, 2021, the court did so.
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Mason appealed and we appointed counsel to represent him
on appeal. After examining the record, counsel filed an opening
brief raising no issues and asking this court independently to
review the record under People v. Wende (1979) 25 Cal.3d 436(Wende). Counsel stated he had written to Mason to advise him
he was filing a Wende brief and Mason had the right to file a
supplemental brief. We also sent Mason a letter on June 4, 2021,
telling him the same thing. We have not received a supplemental
brief from Mason.
DISCUSSION
Effective January 1, 2018, the Legislature amended
Penal Code section 12022.53, subdivision (h),2 to give trial
courts discretion to strike or dismiss section 12022.53 firearm
enhancements “in the interest of justice” under section 1385.
(Sen. Bill No. 620 (2017-2018 Reg. Sess.); Stats. 2017, ch. 682,
§ 2.) Effective January 1, 2019, Senate Bill No. 1393 (2017-2018
Reg. Sess.) allowed trial courts to dismiss a serious felony
enhancement in furtherance of justice. (People v. Stamps (2020)
9 Cal.5th 685, 693.) When exercising its discretion, a trial
court considers such factors as the defendant’s rights, society’s
interests, and individualized considerations pertaining to the
defendant and his offenses and background. (People v. Rocha
(2019) 32 Cal.App.5th 352, 359.)
We review the denial of a motion to dismiss under
section 1385 for abuse of discretion. (People v. Carmony (2004)
33 Cal.4th 367, 376.) 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 pp. 376-377.) The party
attacking the sentence has the burden to make such a showing;
otherwise, the trial court is presumed to have acted to achieve
2 References to statutes are to the Penal Code.
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legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be
set aside on review. (Ibid.)
In declining to strike Mason’s firearm enhancements and
serious felony priors, the trial court here considered appropriate
factors. The court recited Mason’s criminal history, noting his
2004 conviction also involved a firearm. As for the facts of his
January 2016 crimes, the court observed Mason instigated
the physical altercation with John Doe, then left, then returned
and “proceeded to fire several rounds” at the victims’ car. As we
noted in Mason I, after driving off, Mason returned: “With tires
squealing, Mason sped back to the liquor store, got out of the
Town Car, and fired at least two and as many as four shots at
the Civic” as the victims drove away. (Mason I.) We see no abuse
of discretion. (See, e.g., People v. Brooks (2020) 53 Cal.App.5th
919, 922 [no abuse of discretion in trial court’s denial of motion
to strike serious felony enhancements]; People v. Shaw (2020)
56 Cal.App.5th 582, 584-585, 588 [same].)
Finally, we find no abuse of discretion in the trial court’s
decision to sentence Mason to consecutive rather than concurrent
terms for the attempted voluntary manslaughter counts. Absent
a clear showing that a sentencing decision was arbitrary or
irrational, we presume a trial court acted to achieve legitimate
sentencing objectives; accordingly, on review we should not
set aside its discretionary determination to impose consecutive
sentences. (People v Reneaux (2020) 50 Cal.App.5th 852, 874.
See People v. Leon (2010) 181 Cal.App.4th 452, 467-468 [no abuse
of discretion in imposing consecutive life terms for murder and
attempted murder arising from defendant’s single act of shooting
at car occupied by both victims].)
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We are satisfied that Mason’s counsel has fully complied
with his responsibilities and that no arguable issues exist.
(People v. Kelly (2006) 40 Cal.4th 106, 109-110; Wende, supra,
25 Cal.3d at p. 441.)
DISPOSITION
We affirm Earl Mason’s sentence.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
HILL, J.

Judge of the Santa Barbara Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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