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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Responde nt,

v.

MAURICE R AUL DUPLEASIS

,

Defendant and Appellant

. B 30 5985

(Los Angeles County Super. Ct. No. KA118360

- 01 )

APPEAL from a n 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, S enior Assistant Attorney General, Noah P

. Hill and Nima Razfar , Deputy Attorney s General

, for Plai ntiff 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). Inclu ded in count 3 was an alleg ation 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 perso nally 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 alleg ation 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.3

bodily injury , arriving at a seven

- year s entence . It then imposed and stayed a mid

- term sentence of fo u r 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, b oth parties agree the court erred by selecting count 3 as th e 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 impos ing the high

- term sentence on c ount 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 restrictin g 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 on4

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, thre e, 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 accepte d 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 plea ding guilty , it asked the

prosec utor to confirm that the great

- bodily

- injury enhancement applied to both counts 2 and 3. The prosecutor responded affirmatively regard ing count 3, but stated she had “some concerns about whether [it] would technically qualify for count 2.” The court resp onded 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 g reat bodily5

injury within the meaning of Penal Code section 12202.7
subdi vi sion (a), ” and appellant admitted he had

. S entencing occurred in February 2020. After victim impact statements, and statements from appellant and his family and friends, the prose cutor 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

t erm 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 te rm 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 note s the great

- bodily

- injury enhancement set forth in se ction 12022.7 may be inapplicable to

c ount 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 pa ge.)6

The court stayed the sentences on counts 1 and 2 pursuant to section 654. Appellant timely appealed.

DISCUSS ION
While b oth appellant and the People agree the court
erred by s electing 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 sente nce 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 argu ing 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”].)7

sentence of eight years on c ount 1, as this would violate the prin ciple set forth in People v. Henderson (1963) 60 Cal.2d
482 ( Henderson )

. W e 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 esta blished 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 c ourt. 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 pa rt 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 n ot 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 pa ge.)8 In People v. Massengale (1970) 10 Cal.App.3d 689

, after
discover ing on appeal that the trial court had imposed an
unauthorized sentence , w e 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 wh enever 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 sente nce. ” ( 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 Sen tence 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, t he defendant could no t 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 ‘un authorized’ sentence when it erroneously stays or fails to stay execution of a sentence under section 654”].)9

may not exceed the original sentence appealed from . (See,

e.g., Peopl e 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 th at permit ting 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 th e Supreme Court itself observed a decade later, “I n 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 o f 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 w hen a trial court pron ounces 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. V

izcarra (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 dou ble the sentence for10

attempting to dissuade a witness , and also failed to impose a mandatory five

- year enhancement. ( Ibid. ) After the defendant appealed, the C ourt of A ppeal noticed th e error, and remanded, instructing the trial court to impose the
enhan cements, which would add seven years to the sentence. ( Id. at 426.) The trial court complied

, and on the subsequent appeal, the C ourt of A ppeal 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, 4 32.) 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 sente nce enhancement, or failed to
exercise its discretion to either strike an enhancement allegation or impose the enhancement.” A ppellant fails to explain why the complexity of a sentence’s composition or
whether it involve d an enhancement should affect the analysis, or why the principles articulated in Serrato and
Vizcarra should not apply to th e instant unauthorized

sentence

. In short, we discern no basis for restrict ing the11

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 t he three terms

. (See People v. Burbine (2003) 106 Cal.App.4th 1250, 1254 [ no abuse of discretion when trial court s elected mid

- term sentence at initial sentencing, but s elected high

- term sentence at resentencing]. )12 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 Departm ent 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.

C URREY, J.