People v. Mason CA6

Filed 1/18/23 P. v. Mason CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H050072
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS033582A)
v.
SHAVOUGUE ANTOINE MASON,
Defendant and Appellant.
THE COURT1
Defendant Shavougue Antoine Mason appeals from an order denying his petition
for resentencing under Penal Code section 1170.95.2 For the reasons set forth below, we
affirm the order.
I. BACKGROUND
In 2003, Mason drove under the influence of alcohol, crashed into another car,
killing two people and their unborn child, and injuring another. A jury convicted Mason
of three counts of second degree murder (§ 187), two counts of gross vehicular
manslaughter while intoxicated (§ 191.5, subd. (a)), two counts of vehicular
manslaughter with gross negligence (§ 192, subd. (c)(1)), driving under the influence
1
Before Greenwood, P. J., Danner, J. and Lie, J.
2
Undesignated statutory references are to the Penal Code. Effective June 30,
2022, section 1170.95 was renumbered section 1172.6, with no changes to the text.
(Stats. 2022, ch. 58, § 10.)
causing injury (Veh. Code, § 23153, subd. (a)), and driving with a blood alcohol level of
.08 and above (Veh. Code, § 23153, subd. (b)). The jury also found true allegations that
Mason caused great bodily injury. (§ 12022.7, subd. (a).) The court sentenced him to 45
years to life. In 2007, this court affirmed the judgment. (People v. Mason (Feb. 8, 2007,
H028624) [nonpub. opn.].)
On December 31, 2018, Mason filed a petition for resentencing pursuant to former
section 1170.95. The trial court denied the petition, and Mason appealed. Counsel for
Mason filed a brief that raised no issues pursuant to People v. Serrano (2012) 211
Cal.App.4th 496 (Serrano), and Mason filed a supplemental brief on his own behalf.
This court determined that the arguments Mason presented in his supplemental brief did
not raise arguable issues, and it dismissed the appeal.
On January 21, 2022, Mason filed a second resentencing petition under former
section 1170.95, as amended by Senate Bill No. 775 (2020-2021 Reg. Sess.). The trial
court denied the petition, and Mason filed a timely notice of appeal.
On appeal, this court appointed counsel to represent Mason, and counsel then filed
an opening brief pursuant to Serrano. We notified Mason that he could file a
supplemental brief on his own behalf, and that failure to do so would result in the
dismissal of the appeal as abandoned. (People v. Delgadillo (2022) 14 Cal.5th 216, 232.)
Mason filed a timely supplemental brief.
II. DISCUSSION
Mason contends that the trial court erred in denying his petition because, under the
amendments effected by Senate Bill No. 775, malice can no longer be imputed.
According to Mason, his convictions for second degree murder are no longer valid
because malice was imputed to him under People v. Watson (1981) 30 Cal.3d 290, 294
[defendant aware of the hazards of driving while intoxicated, who while intoxicated
drove recklessly causing death of another, could be found guilty of second degree murder
based on a finding of implied malice].
2
Mason does not raise an arguable issue on appeal. An issue is arguable if it has a
reasonable potential for success, and, if resolved favorably for the appellant, the result
will either be a reversal or a modification of the judgment. (People v. Johnson (1981)
123 Cal.App.3d 106, 109.)
In Mason’s first resentencing petition, he raised the identical argument based on
the changes in law effected by Senate Bill No. 1437 (2017-2018 Reg. Sess.). Senate Bill
No. 1437, which became effective on January 1, 2019, “eliminated natural and probable
consequences liability for murder as it applies to aiding and abetting, and limited the
scope of the felony-murder rule.” (People v. Lewis (2021) 11 Cal.5th 952, 957.) Senate
Bill No. 1437 modified section 188, which defines malice, by adding language stating
that “[m]alice shall not be imputed to a person based solely on his or her participation in
a crime.” (§§ 188, subd. (a)(3), 189, subd. (e), as amended by Stats. 2018, ch. 1015, § 2,
3.) Senate Bill No. 1437 also added former section 1170.95 to the Penal Code, which
creates a procedure for convicted murderers who could not be convicted under the law as
amended to retroactively seek relief.
This court rejected Mason’s argument that malice could no longer be imputed after
the amendments under Senate Bill No. 1437 took effect. We ruled that while the
amended section 188, which defines malice, states that “[m]alice shall not be imputed to
a person based solely on his or her participation in a crime,” this provision did not
eliminate the concept of imputed or implied malice altogether. (People v. Mason (Apr.
24, 2020, H046362) [nonpub. opn.], at p. 4.) This court emphasized that the amendment
of section 188 reflected the Legislature’s intent that a person’s culpability for murder be
premised on that person’s own actions and subjective mens rea. (Ibid.) Because Mason
was convicted of second degree murder on an implied malice theory after he drove under
the influence at an excessive speed and crashed, killing two people and their unborn
child, this was not a case where malice was imputed to him based solely on his
participation in the crime or on the action of confederates. (Id. at p. 5.) This court
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concluded that because the finding of implied malice in Mason’s case was based on his
own actions and his subjective mental state, the amended language in section 188 did not
apply to his conviction. (Ibid.)
Senate Bill No. 775, effective January 1, 2022, added language to former section
1170.95, subdivision (a) to allow a petitioner to apply for resentencing where a
“complaint, information, or indictment was filed against the petitioner that allowed the
prosecution to proceed under a theory of felony murder or murder under the natural and
probable consequences doctrine or other theory under which malice is imputed to a
person based solely on that person’s participation in a crime, or attempted murder under
the natural and probable consequences doctrine.” (Stats. 21, ch. 551, § 2, italics added;
former § 1170.95, subd. (a)(1), now renumbered as § 1172.6, subd. (a)(1).) Mason
argues that the italicized language means that “malice can no longer be imputed” and he
is therefore eligible for resentencing because the prosecution is now required to prove
express malice to support a second degree murder conviction.
The amendments enacted by Senate Bill No. 775 do not help Mason. Mason’s
argument fails under the new law for the same reason that it failed in his first appeal
under the former version of section 1170.95. Section 1170.95, as amended by Senate Bill
No. 775, did not eliminate implied malice as a basis for a murder conviction, such that, as
he suggests, only express malice can support a second degree murder conviction.
Malice was not imputed to him based solely on his participation in a crime or the
actions of confederates. Malice was implied because he drove while intoxicated resulting
in the death of two people and an unborn child. (Watson, supra, 30 Cal.3d at p. 300.)
Therefore, the trial court did not err in finding him ineligible for resentencing under
former section 1170.95, as amended by Senate Bill No. 775.
Because Mason raises no arguable issue in his supplemental brief, we must affirm
the post-conviction order. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
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III. DISPOSITION
The order denying the resentencing petition is affirmed.
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