Filed 2/10/22 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, H047454
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS033582)
v.
SHAVOUGUE ANTOINE MASON,
Defendant and Appellant.
Defendant Shavougue Antoine Mason was convicted by a jury in 2005 of, among
other things, three counts of murder after driving drunk and killing a man, a woman, and
their unborn child. He was sentenced to an indeterminate term of 45 years to life in
prison. Determinate sentences on other counts were imposed and stayed. Defendant
petitioned for resentencing under Penal Code section 1170.91, which allows current and
former members of the United States military to seek resentencing if they are convicted
of certain felonies and suffer from mental health or substance abuse issues related to their
military service. The trial court denied the petition, determining that the statute does not
apply to indeterminate sentences and that the mitigating evidence defendant submitted
did not justify a lower stayed determinate sentence. Defendant argues the trial court
erred in concluding that indeterminate sentences are statutorily excluded from
resentencing under Penal Code section 1170.91; that the statute violates equal protection
if it permits resentencing of determinate sentences but not indeterminate sentences; and
that his counsel was ineffective for not explaining to the trial court the extent of its
discretion under the full resentencing rule. Finding no prejudicial error, we will affirm.
I. TRIAL COURT PROCEEDINGS
According to the factual summary in an unpublished opinion from another panel
of this court affirming defendant’s convictions (case No. H028624), defendant was
speeding in a residential neighborhood while intoxicated. He drove through a stop sign,
crashed into a car, and killed its two adult occupants and their unborn child. Two
children riding in the car defendant hit were injured but survived. Defendant fled the
scene.
A jury convicted defendant of three counts of murder (Pen. Code, § 187); two
counts of vehicular manslaughter with gross negligence while intoxicated (Pen. Code,
§ 191.5, subd. (a)), enhanced for fleeing the scene (Veh. Code, § 20001, subd. (c)); two
counts of vehicular manslaughter with gross negligence (Pen. Code, § 192, subd. (c)(1)),
including flight enhancements (Veh. Code, § 20001, subd. (c)); driving under the
influence of alcohol causing injury (Veh. Code, § 21353, subd. (a)), enhanced for
personally inflicting great bodily injury on the two adult victims (Pen. Code, § 12022.7,
subd. (a)); and driving with a blood alcohol level of 0.08 percent or higher causing injury
(Veh. Code, § 21353, subd. (b)), also enhanced for personally inflicting great bodily
injury on the two adult victims (Pen. Code, § 12022.7, subd. (a)). (Unspecified
references are to the Penal Code.) The jury found defendant did not inflict great bodily
injury on the unborn child as to the last two counts.
Defendant was sentenced to an indeterminate term of 45 years to life in prison for
the three murder counts. The parties stipulated to set aside the verdicts for the two
vehicular manslaughter with gross negligence counts (§ 192, subd. (c)(1)), as lesser
included offenses of other conviction offenses. The trial court imposed and stayed
(§ 654) determinate terms for the remaining counts and enhancements. The remaining
counts with determinate terms all were sentencing triad felonies. (See § 1170, subd. (b).)
2
On direct appeal from the judgment, a different panel of this court in 2007 struck the
driving under the influence causing injury count (because it was a lesser included offense
1
of vehicular manslaughter while intoxicated), and affirmed the judgment as modified.
Representing himself, defendant petitioned for resentencing under
section 1170.91. Defendant later retained counsel, who filed a supplemental brief in
support of defendant’s petition for resentencing. The brief contends defendant “served in
the military and is suffering from PTSD and Substance Abuse issues that are attributed to
his service and contributed to the crime in this case.” Supporting documentation included
a recent evaluation by a clinical psychologist opining that defendant incurred trauma
during military service rising to the level of PTSD and that the PTSD “likely contributed
to the development of an Alcohol Use Disorder which, at the time of the accident,
directly contributed to the accident’s cause.”
The trial court held a hearing on defendant’s petition in 2019. The court found
that the statute’s plain language limits its application to determinate sentences and
refused to consider service-related mitigation for defendant’s indeterminate sentence. As
to the stayed determinate sentences, the prosecutor argued that even considering the
mitigation offered by defendant “this is still an extremely aggravated case,” noting
1
After this court’s 2007 opinion, an amended abstract of judgment for the
determinate portion of defendant’s sentence was filed striking the driving under the
influence causing injury count. The amended abstract of judgment appears to contain
several errors relating to the stayed determine sentence. First, the abstract retains the
great bodily injury enhancements for the stricken driving under the influence causing
injury count (Veh. Code, § 23153, subd. (a)). Second, although the abstract notes that all
determinate terms were stayed under section 654 such that there is no actual prison time
associated with them, the abstract includes a total determinate time of 33 years 8 months.
Third, the abstract records the consecutive sentence for count 9 (Veh. Code, § 23153,
subd. (b)) as one-third the middle term, but also shows what appears to be the full upper
term for that offense. The parties agree defendant’s actual sentence consists solely of the
45 years to life indeterminate term. Therefore, because the apparent errors carry no
practical consequence, in the interest of judicial economy we merely note them here
without ordering the preparation of a corrected abstract.
3
defendant killed the “parents of two small children, they died in front of those two
children, as well as the death of an unborn child,” and defendant fled the scene. The
prosecutor also pointed to defendant’s earlier “DUI that was pled down to a wet
[]reckless.” Defense counsel emphasized defendant’s PTSD from serving as a medic in
the military, and argued the experience likely contributed to defendant panicking and
fleeing the scene of the crash. The trial court concluded that “even taking into account
mitigating circumstances, the aggravating circumstances here far outweigh those
mitigating circumstances.” The court noted that defendant had been advised after a prior
conviction that if he drove under the influence and someone was killed. he could be
charged with murder; and despite that advisement defendant chose to drive drunk,
leading to three deaths and great bodily injury.
II. DISCUSSION
A. SECTION 1170.91 DOES NOT APPLY TO INDETERMINATE SENTENCES
Defendant argues the “plain language of section 1170.91, subdivision (b), invites
petitions for recall and reconsideration of sentences from all eligible veterans without
regard to the nature of their sentences.”
Section 1170.91, subdivision (a) provides: “If the [sentencing] court concludes
that a defendant convicted of a felony offense is, or was, a member of the United States
military who may be suffering from sexual trauma, traumatic brain injury, post-traumatic
stress disorder, substance abuse, or mental health problems as a result of his or her
military service, the court shall consider the circumstance as a factor in mitigation when
imposing a term under subdivision (b) of Section 1170.” Section 1170,
subdivision (b)(1) provides in relevant part that when a “statute specifies three possible
terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed
the middle term, except as otherwise provided in paragraph (2).” Section 1170.91,
subdivision (b) allows a military veteran serving a sentence “who may be suffering from
sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or
4
mental health problems as a result of his or her military service” to petition for a recall of
sentence and resentencing under section 1170.91, subdivision (a). To obtain
resentencing, the veteran must show that the service-related mental health issue was not
considered as a mitigating factor at the time of sentencing, and that the veteran was
sentenced before 2015. (§ 1170.91, subd. (b)(1)(A), (b)(1)(B).)
People v. Estrada (2020) 58 Cal.App.5th 839 (Estrada) considered and rejected an
argument identical to defendant’s. Estrada pleaded no contest to murder and was
sentenced to an indeterminate term. (Id. at p. 841.) He petitioned for resentencing under
section 1170.91, which the trial court denied because Estrada was serving an
indeterminate term. The Estrada court noted that the resentencing petition process in
section 1170.91, subdivision (b) states that veterans may obtain “ ‘resentencing pursuant
to subdivision (a)’ ” of section 1170.91, and that subdivision (a) of the statute “provides
that the trial court shall consider mitigating factors related to the defendant’s military
service ‘when imposing a term under subdivision (b) of Section 1170.’ ” (Estrada, at
pp. 842–843.) “Section 1170, subdivision (b), describes the sentencing court’s discretion
to choose an aggravated, middle, or lower determinate term based on its consideration of
mitigating and aggravating factors.” (Estrada, at p. 843; italics added.) From the
foregoing, the Estrada court concluded that section 1170.91 applies only to determinate
terms imposed under section 1170, subdivision (b). The court noted that had the
“Legislature intended for section 1170.91 to apply to indeterminate terms imposed under
section 1168, subdivision (b), it would not have specifically limited the statute’s
application to terms imposed under section 1170, subdivision (b).” (Estrada, at p. 843;
accord People v. Stewart (2021) 66 Cal.App.5th 416 [finding no section 1170.91
resentencing eligibility for defendant sentenced under the Three Strikes Law].)
We agree with the reasoning of Estrada, and conclude the plain language of
section 1170.91 precludes individuals, like defendant, who are serving indeterminate
5
terms from obtaining resentencing under that statute for any indeterminate portion of
2
their sentence.
B. SECTION 1170.91 DOES NOT VIOLATE EQUAL PROTECTION
Defendant contends that if section 1170.91 does not allow veterans serving
indeterminate sentences to petition for resentencing, it violates the equal protection
clauses of the federal and California Constitutions. Defendant argues that
section 1170.91 treats two similarly situated groups of veteran-inmates in an unequal
manner: those serving indeterminate sentences, and those serving determinate sentences
that a trial court selected from a sentencing triad after considering mitigating and
aggravating factors (i.e., sentences imposed under section 1170, subdivision (b)).
Defendant asserts that a strict scrutiny standard applies because the “classification denies
him access to a procedure designed to provide leniency” and therefore implicates his
“fundamental interest in liberty.” But a defendant does not have a fundamental interest in
a specific term of imprisonment (People v. Wilkinson (2004) 33 Cal.4th 821, 838), and
the “Legislature is vested with broad discretion in the classification of punishments.”
(People v. Ward (2005) 36 Cal.4th 186, 217.) Because the classification defendant
identifies does not involve a suspect class or other interest that might warrant higher
scrutiny, the strict scrutiny standard does not apply. (People v. Wilkinson, at p. 838.) We
therefore review the legislation for rational basis, which requires only that the statutory
classification be rationally related to a legitimate government purpose. (Id. at p. 836.)
Though section 1170.91 does not explicitly list crimes that are ineligible for relief,
by specifically limiting its reach to crimes sentenced under section 1170, subdivision (b)
it implicitly excludes crimes punished with indeterminate sentences. By limiting relief to
determinate sentences, the Legislature excluded from resentencing individuals convicted
2
Because we conclude the statute’s plain language resolves the issue defendant
raises, the Attorney General’s motion requesting judicial notice of legislative history
materials is denied as unnecessary.
6
of the most serious crimes. (See People v. Felix (2000) 22 Cal.4th 651, 657
[“indeterminate sentences are generally reserved for more serious crimes than those
subject to determinate sentences”].) The government has a legitimate interest in ensuring
that individuals who commit the most serious crimes serve commensurate sentences.
Excluding those individuals from resentencing under section 1170.91 is consistent with
that legitimate government interest. Section 1170.91 therefore does not violate equal
protection by differentiating between those serving indeterminate sentences and those
sentenced under the determinate statutory scheme.
C. INEFFECTIVE ASSISTANCE OF COUNSEL AND THE FULL RESENTENCING RULE
Defendant argues the trial court misunderstood the scope of its discretion under
the full resentencing rule to reconsider the entire sentence when it applied
section 1170.91 to the determinate portion of defendant’s sentence. (Citing People v.
Buycks (2018) 5 Cal.5th 857 (Buycks).) He alternatively argues his counsel provided
ineffective assistance for not articulating that argument. Defendant’s counsel did not
raise the issue in the trial court; the only reference to Buycks and the full resentencing
rule was in a handwritten letter defendant filed while represented by counsel. Because
counsel did not make the argument defendant now asserts on appeal, we will review the
issue for ineffective assistance. To establish ineffectiveness infringing on the right to
counsel under the Sixth Amendment to the United States Constitution, a defendant must
show both that counsel’s performance was deficient and a prejudicial effect of the
deficiency. (People v. Ledesma (1987) 43 Cal.3d 171, 216–217.) To prove prejudice, a
defendant must affirmatively show a reasonable probability that, but for counsel’s errors,
the result would have been different. (Id. at pp. 217–218.) We “need not determine
whether counsel’s performance was deficient before examining the prejudice suffered by
the defendant as a result of the alleged deficiencies.” (Strickland v. Washington (1984)
466 U.S. 668, 697.)
7
In Buycks, the Supreme Court explained that when a trial court recalls a sentence
under section 1170, subdivision (d), “the resentencing court has jurisdiction to modify
every aspect of the sentence, and not just the portion subjected to the recall.” (Buycks,
supra, 5 Cal.5th at p. 893.) The Buycks court named that concept the “ ‘full resentencing
rule.’ ” (Ibid.) The Attorney General agrees that under the reasoning of Buycks “the
superior court’s reconsideration of [defendant’s] determinate terms conferred upon it the
discretion to reconsider his indeterminate sentencing as well.” But the Attorney General
argues defendant cannot demonstrate prejudice because the trial court’s statements in
denying defendant’s determinate resentencing show it would not have reduced his
indeterminate sentence even if it were aware of its discretion to do so.
We agree that defendant has not demonstrated prejudice on this record. As we
have discussed, section 1170.91 does not apply to indeterminate sentences. The trial
court therefore had no duty to consider defendant’s service-related mental health issues in
relation to his indeterminate sentence. And in denying resentencing on defendant’s
stayed determinate sentence, the trial court concluded that even considering defendant’s
service-related mental health issues, the “aggravating circumstances here far outweigh
those mitigating circumstances.” Defendant does not challenge that decision as to his
determinate sentence, and provides no persuasive argument as to why the trial court
would not have applied the same reasoning to his indeterminate sentence. Defendant
asserts the trial court’s statements about his determinate sentencing are irrelevant to what
the trial court might have decided about defendant’s indeterminate sentence because
everyone “below understood that what the trial court did with respect to the determinate
sentences did not really matter” given that all determinate sentences were stayed. But in
light of the trial court’s decision that defendant was not entitled to resentencing for even
his stayed counts, we see no reasonable probability the trial court would have nonetheless
found the mitigating evidence sufficient to reduce the indeterminate sentence that
defendant is actually serving.
8
III. DISPOSITION
The order denying defendant’s petition for resentencing is affirmed.
9
____________________________________
Grover, J.
WE CONCUR:
____________________________
Greenwood, P. J.
____________________________
Danner, J.
H047454 - The People v. Mason