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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,

Plaintiff and Respondent,

v.

MAURICE RAUL 

DUPLEASIS,

Defendant and Appellant.

 B305985

 (Los Angeles County

 Super. Ct. No. KA118360-01)

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.
2

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.