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Filed 1/18/23 P. v. Mason CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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