Filed 8/20/21 P. v. Dupleasis CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE, B305985
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA118360-01)
v.
MAURICE RAUL
DUPLEASIS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Mike Camacho, Judge. Reversed and
remanded with directions.
Michael Clough for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Noah P. Hill and
Nima Razfar, Deputy Attorneys General, for Plaintiff and
Respondent.
_____________________________________________________
INTRODUCTION
After appellant Maurice Raul Dupleasis punched
victim Adam Alcantara in the head, causing him to sustain a
traumatic brain injury, he was charged with mayhem (count
1, with a maximum punishment of eight years), battery with
great bodily injury (count 2, with a maximum punishment of
four years), and assault by means of force likely to produce
great bodily injury (count 3, with a maximum punishment of
four years). Included in count 3 was an allegation that
appellant personally inflicted great bodily injury upon the
victim, punishable by an additional three years under Penal
Code section 12022.7, subdivision (a).1 Appellant pled guilty
to all counts and admitted he personally inflicted great
bodily harm upon the victim. The court selected the high
term of four years for count 3 as the “base term,” and added
an additional three years for the special allegation of great
1 Count 2 also contained a further allegation that appellant
“personally inflicted great bodily injury on another person” but
did not cite Penal Code section 12022.7. Undesignated references
are to the Penal Code.
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bodily injury, arriving at a seven-year sentence. It then
imposed and stayed a mid-term sentence of four years on
count 1 and six years on count 2 (consisting of a three-year
sentence and a three-year great-bodily-injury enhancement).
On appeal, both parties agree the court erred by
selecting count 3 as the base term instead of count 1,
because the court was required to sentence appellant “under
the provision that provides for the longest potential term of
imprisonment” and count 1, with a maximum sentence of
eight years, was that count. (§ 654, subd. (a); People v.
Kramer (2002) 29 Cal.4th 720, 723-724.) In his opening
brief, appellant requests we strike the current sentence of
seven years and impose a four-year sentence, contending the
court has “already determined” that such a mid-term
sentence on count 1 is appropriate. The People request we
remand the matter for resentencing, to permit the court to
fashion a new sentence. Appellant counters that if we elect
to remand, we must direct the trial court to refrain from
imposing the high-term sentence on count 1, because that
would result in a higher sentence than the one appealed. We
agree with the parties that the court erred in selecting count
3 as the base term, and conclude the proper course is to
remand the matter for resentencing, without restricting the
court’s discretion.
STATEMENT OF RELEVANT FACTS
Appellant was accused of punching the victim in the
head, resulting in the victim falling, striking his head on
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concrete, and suffering a traumatic brain injury. As a result,
an information was filed in December 2018, charging
appellant with three counts: (1) mayhem in violation of
section 203, punishable by two, four, or eight years in prison;
(2) battery with serious bodily injury in violation of section
243, subdivision (d), punishable by two, three, or four years
in prison; and (3) assault by means of force likely to produce
great bodily injury in violation of section 245, subdivision
(a)(4), punishable by two, three, or four years in prison. The
information also alleged that in committing count 2,
appellant personally inflicted great bodily injury on another
person, and that in committing count 3, he personally
inflicted great bodily injury upon the victim within the
meaning of section 12022.7, subdivision (a).
In December 2019, the court accepted appellant’s guilty
plea to all counts. On appellant’s plea form, “GBI 12022.7
(+3)” was listed under “ENHANCEMENTS” next to count 2.
During the court’s questioning to ensure appellant
understood the ramifications of pleading guilty, it asked the
prosecutor to confirm that the great-bodily-injury
enhancement applied to both counts 2 and 3. The prosecutor
responded affirmatively regarding count 3, but stated she
had “some concerns about whether [it] would technically
qualify for count 2.” The court responded that the issue was
“academic,” given that count 1 should be the base term, and
any sentence under count 2 would be stayed. The court later
asked appellant whether he “further admit[ted] that in the
commission of [count 2] [he] personally inflicted great bodily
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injury within the meaning of Penal Code section 12202.7
subdivision (a),” and appellant admitted he had.
Sentencing occurred in February 2020. After victim
impact statements, and statements from appellant and his
family and friends, the prosecutor stated: “Your honor, the
only thing that I would add is that [prosecutor] McKenna in
her sentencing brief wrote for the court to impose the max,
which is eight years, [and] if not[] the max, the mid term.
[¶] I would just like to remind the court, which I know
you’re aware of, that the court can also sentence on count 3
and get anywhere between the four and eight as well.” The
court responded, “I understand that.” The court then denied
probation and stated it would “select as base term the high
term of four years on count 3, which is the violation of the
Penal Code section 245, subdivision (a)(4), assault with force
likely to inflict great bodily injury, a felony. That is the
principal term. The court will also impose as part of the
principal term calculation . . . the additional three years for
the personal infliction of great bodily injury, within the
meaning of Penal Code section 12022.7, for a complete
principal term of seven years.” The court also imposed the
mid-term of four years on count 1, the mid-term of three
years on count 2, and added an additional three years to
count 2 for the personal infliction of great bodily injury.2
2 On appeal, appellant notes the great-bodily-injury
enhancement set forth in section 12022.7 may be inapplicable to
count 2, but asserts the issue is “immaterial to this appeal
because the court did not ‘punish’ Mr. Dupleasis based on Count
(Fn. is continued on the next page.)
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The court stayed the sentences on counts 1 and 2 pursuant
to section 654. Appellant timely appealed.
DISCUSSION
While both appellant and the People agree the court
erred by selecting count 3 as the base term instead of count
1, they disagree on the appropriate remedy. Appellant
contends that because the trial court “already determined
that the appropriate sentence under Count 1 is the mid-term
(four-year) sentence,” we should simply modify the sentence
from seven years to four and affirm. The People argue that
because the court imposed an unauthorized sentence, we
should remand for resentencing, permitting the court to
exercise its sentencing discretion and consider all options.
In his reply brief, appellant argues that if we remand, we
should instruct the trial court not to impose the high-term
2.” Because we remand the case for a full resentencing, nothing
prohibits appellant from arguing at the resentencing that such an
imposition would be improper because inflicting great bodily
injury is an element of the underlying crime. (See, e.g., People v.
Hawkins (2003) 108 Cal.App.4th 527, 531 [“Because the ‘great
bodily injury’ contemplated by section 12022.7 is substantially
the same as the ‘serious bodily injury’ element of section 243,
subdivision (d) [citation], the section 12022.7 enhancement
cannot be applied to the crime of battery with serious bodily
injury unless it involves domestic violence”]; see also People v.
Pitts (1990) 223 Cal.App.3d 1547, 1558-1559 [because “great
bodily injury is an element of mayhem . . . an enhancement for
great bodily injury cannot be imposed”].)
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sentence of eight years on count 1, as this would violate the
principle set forth in People v. Henderson (1963) 60 Cal.2d
482 (Henderson). We conclude the proper course is to
remand for resentencing, without imposing limitations on
the length of the new sentence.
A. An Unauthorized Sentence Warrants
Remand
“It is well established that when the trial court
pronounces a sentence which is unauthorized by the Penal
Code that sentence must be vacated and a proper sentence
imposed whenever the mistake is appropriately brought to
the attention of the trial court or the reviewing court. When
the mistake is discovered while the defendant’s appeal is
pending, the appellate court should remand the case for a
proper sentence.” (People v. Benton (1979) 100 Cal.App.3d
92,102; see also People v. Buycks (2018) 5 Cal.5th 857, 893
[“when part of a sentence is stricken on review, on remand
for resentencing ‘a full resentencing as to all counts is
appropriate, so the trial court can exercise its sentencing
discretion in light of the changed circumstances’”].)3
3 Appellant’s sentence was unauthorized because it could not
have been lawfully imposed under the circumstances of the case.
While the court was free to select the low, middle, or high term
(of two, four, or eight years) under count 1, it could not lawfully
have sentenced appellant to the seven-year term imposed.
(People v. Scott (1994) 9 Cal.4th 331, 354 [“a sentence is generally
‘unauthorized’ where it could not lawfully be imposed under any
circumstance in the particular case”]; id. at 354, fn. 17 [“It is well
(Fn. is continued on the next page.)
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In People v. Massengale (1970) 10 Cal.App.3d 689, after
discovering on appeal that the trial court had imposed an
unauthorized sentence, we held that when “a court
pronounces a sentence which is unauthorized by the Penal
Code, that sentence must be vacated and a proper sentence
imposed whenever the mistake is appropriately brought to
the attention of the court.” (Id. at 691-693.) “When the
mistake is discovered while the defendant’s appeal is
pending, the appellate court should affirm the conviction and
remand the case for a proper sentence.” (Id. at 693.) Having
found that the court below imposed an unauthorized
sentence, we vacate that sentence and remand with
directions to impose a legally authorized sentence.
Appellant cites no authority mandating a different
procedure.
B. The New Sentence May Exceed the Initial
Sentence
In Henderson, our Supreme Court reversed the
defendant’s murder conviction, vacating the previously
imposed sentence of life imprisonment. The court went on to
hold that if convicted on retrial, the defendant could not be
sentenced to death. (Henderson, supra, 60 Cal.2d at 495-
496.) Courts following Henderson have construed it to mean
that if a conviction is reversed, a sentence imposed on retrial
settled . . . that the court . . . imposes an ‘unauthorized’ sentence
when it erroneously stays or fails to stay execution of a sentence
under section 654”].)
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may not exceed the original sentence appealed from. (See,
e.g., People v. Hill (1986) 185 Cal.App.3d 831, 836
[“Increasing a sentence upon retrial after a successful appeal
or grant of a writ of habeas corpus had already been held to
violate double jeopardy”], citing People v. Henderson, supra,
at 482.) Appellant argues that permitting the trial court to
impose the high-term sentence of eight years on count 1
when his current sentence is seven years “would violate the
constitutional principles that this Court affirmed in
Henderson, 60 Cal.2d at 495-497.” We disagree.
As the Supreme Court itself observed a decade later,
“In the Henderson case, as in each of the cited cases which
followed it, the sentence imposed after the first trial was a
lawful one, within the limits of the discretion conferred by
statute for the offense of which the defendant had been
convicted. The judgments pronounced at the first trials were
reversed because of errors having nothing to do with the
sentences.” (People v. Serrato (1973) 9 Cal.3d 753, 764.)
“The rule is otherwise when a trial court pronounces an
unauthorized sentence. Such a sentence is subject to being
set aside judicially and is no bar to the imposition of a proper
judgment thereafter, even though it is more severe than the
original unauthorized pronouncement.” (Ibid.)
In People v. Vizcarra (2015) 236 Cal.App.4th 422, the
defendant was convicted of assault with a deadly weapon
and attempting to dissuade a witness. (Id. at 425.) Because
the defendant had a previous strike, the court doubled the
sentence for assault, but failed to double the sentence for
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attempting to dissuade a witness, and also failed to impose a
mandatory five-year enhancement. (Ibid.) After the
defendant appealed, the Court of Appeal noticed the error,
and remanded, instructing the trial court to impose the
enhancements, which would add seven years to the sentence.
(Id. at 426.) The trial court complied, and on the subsequent
appeal, the Court of Appeal affirmed, notwithstanding that
the new sentence was longer than the initial one: “Under
the Serrato exception to the Henderson rule . . . an
unauthorized sentence is subject to correction by an
appellate court ‘whenever the error comes to the attention of
the court, even if the correction creates the possibility of a
more severe punishment.’” (Id. at 427, 429, 432.)
Appellant neither disputes the holdings of Serrato and
Vizcarra nor argues they were wrongly decided; rather, he
notes that cases citing Serrato often involve “more
complicated scenarios” in which a sentencing court “failed to
impose a statutory sentence enhancement, or failed to
exercise its discretion to either strike an enhancement
allegation or impose the enhancement.” Appellant fails to
explain why the complexity of a sentence’s composition or
whether it involved an enhancement should affect the
analysis, or why the principles articulated in Serrato and
Vizcarra should not apply to the instant unauthorized
sentence. In short, we discern no basis for restricting the
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trial court’s discretion, on remand, to fashion a lawful
sentence.4
4 We reject appellant’s suggestion that the trial court
“already decided” that a mid-term sentence on count 1 was
appropriate. That sentence was imposed only after the court
selected count 3 as the base term, and after it characterized as
“academic” the sentences imposed on the remaining counts,
stayed pursuant to section 654. Accordingly, on remand, the
court retains discretion to select among the three terms. (See
People v. Burbine (2003) 106 Cal.App.4th 1250, 1254 [no abuse of
discretion when trial court selected mid-term sentence at initial
sentencing, but selected high-term sentence at resentencing].)
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DISPOSITION
Appellant’s sentence is vacated. The matter is
remanded to the trial court with directions to resentence
appellant in a manner consistent with this opinion, and to
issue an amended abstract of judgment and forward it to the
California Department of Corrections and Rehabilitation. In
all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.
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