People v. Mason CA2/3

Filed 10/21/26 P. v. Mason CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE THE PEOPLE, B332724 Plaintiff and Respondent, (Los Angeles County Super. Ct. Nos. v. MA070965, MA069753) CHARLES WESTLEY MASON, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa Strassner, Judge. Affirmed as modified. John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and Chelsea Zaragoza, Deputy Attorneys General, for Plaintiff and Respondent. ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗  This appeal follows defendant Charles Westley Mason’s sentencing in two cases. In the first case, Mason argues the court erred in imposing the middle term for one of the charges and that a criminal protective order issued at sentencing was unauthorized. In the second case, where he was sentenced for a violation of probation, he argues the court erred when it doubled the middle term because an alleged strike prior was dismissed by the People when he changed his plea. We modify the judgment to vacate the criminal protective order and to correct the sentence in the probation violation case. We otherwise affirm the judgment as modified. FACTUAL AND PROCEDURAL BACKGROUND Case No. MA069753 The People charged Mason with a first-degree burglary with a person present (Pen. Code, § 459) occurring on September 22, 2016.1 The information alleged a strike prior within the meaning of our state’s “Three Strikes” law (§§ 667, subds. (b)–(j), 1170.12, subds. (a)–(d)) and a prior serious felony conviction (§ 667, subd. (a)) for a 2012 conviction for attempted residential burglary (§§ 664/459). On January 10, 2017, Mason pled no contest to the residential burglary and admitted the residence was occupied when he committed the offense. On that same date, the court sentenced Mason to a grant of felony probation and released him from custody. The People dismissed the strike prior allegation. On April 10, 2017, probation was revoked and a bench warrant issued for Mason’s arrest upon a preliminary finding that he was in violation of the terms and conditions of probation. 1 Statutory references are to the Penal Code. 2 On April 11, 2017, Mason appeared in court, in custody, and the case was continued pending the proceedings in MA070965. On September 8, 2023, the court found a violation of probation and terminated probation. Case No. MA070965 In the operative amended information, the People charged Mason with the attempted murder of John Ojo (§§ 664/187, subd. (a)), escape (§ 4532, subd. (b)(1)), assault with a deadly weapon (§ 245, subd. (a)(1)), the rape of Irene R. (§ 261, subd. (a)(2)), and criminal threats (§ 422, subd. (a)) stemming from three separate incidents occurring on April 7 and 8, 2017. The information alleged that Mason personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)) and inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)) as to the attempted murder, assault with a deadly weapon, and criminal threats charges. The People alleged six aggravating factors (Cal. Rules of Court, rule 4.421). The information alleged strike priors for the 2012 attempted residential burglary conviction and the 2017 residential burglary conviction in MA069753. Mason pleaded not guilty by reason of insanity and denied the allegations. At the guilt phase of the trial, testimony was elicited regarding Mason’s behaviors and mental health symptoms.2 Ojo testified that Mason nodded and swayed back and forth when he stabbed him. He felt Mason needed help. Mason testified that prior to assaulting Ojo he was listening to music because he was 2 The facts underlying the convictions are uncontroverted and not summarized here. 3 “stressed out.” He also recounted that prior to the assault he was “going through things with [his] . . . mental health.” The jury found Mason not guilty of attempted murder but guilty of all other charges. The jury found the deadly weapon and great bodily injury conduct enhancements attached to the assault with a deadly weapon and criminal threats charges not true. Outside the presence of the jury, during the guilt phase, Mason admitted his prior convictions for attempted residential burglary and residential burglary. There was no apparent disposition of the alleged aggravating factors. It does not appear the parties stipulated regarding the truth of the aggravating factors. The verdict forms do not contain the aggravating factors for the jury’s decision. At the sanity phase of the trial, Mason’s mother testified that Mason’s behavior changed after he witnessed his cousin’s murder.3 In January of 2017, she transported him to Antelope Valley Hospital because he was “having a hard time . . . with his thoughts” and hearing voices. She recalled Mason’s unusual behaviors and statements close to the time of the offenses. Four expert witnesses testified regarding Mason’s psychiatric diagnoses. They testified about the diagnoses in Mason’s clinical records and their own conclusions. The experts, generally, agreed regarding his diagnoses: unspecified psychosis,4 unspecified schizophrenia, and post-traumatic stress disorder. Drug use may have contributed to his psychotic symptoms. The experts all testified they had considered information 3 Mason was 19 years old. 4 The experts agreed that he had a psychotic disorder. They differed in their opinions regarding the underlying cause. 4 regarding traumatic events in Mason’s life. Their testimony was mixed regarding whether Mason had malingering symptoms. They were also divided regarding sanity. Regarding the escape conviction, specifically, all four experts agreed that Mason was sane when he committed the escape. The jury found Mason sane when he committed the rape and escape offenses but could not decide whether he was sane or insane when he committed the assault with a deadly weapon and criminal threats offenses. The defense did not seek a retrial for those offenses. Sentencing The parties filed sentencing memoranda. Mason’s counsel asked the court to exercise its discretion to dismiss his strike priors, relying on section 1385, subdivision (a) and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. In support of his position, Mason argued, through counsel, he would serve a long determinate term even if the court granted the motion. Further, the brief outlined the court’s power to consider factors in mitigation in its exercise of discretion, relying on section 1385, subdivision (c).5 Counsel specifically mentioned facts adduced at the trial related to Mason’s childhood trauma and mental illness. Mason asked the court to impose a determinate term of 29 years, four months in the MA070965.6 5 The defense brief used a heading for this section that did not accurately reflect the verdict in the instant case, referencing an enhancement that did not apply in Mason’s cases. 6 The defense brief was silent regarding a proposed sentence in MA069753. 5  In their brief, the People asked the court to impose punishment for Mason’s strike priors, emphasizing the recency of one of his strike prior convictions and the fact that he was on probation at the time of the assault on Ojo and the rape of Irene R. They emphasized Mason’s lengthy criminal history and an absence of “extraordinary mitigating factors.” The People asked the court to impose a sentence of 50 years to life and a determinate sentence of 10 years four months. The probation report noted six circumstances in aggravation and none in mitigation. The probation department did not interview Mason and did not specify a recommended term of imprisonment. At the September 8, 2023 sentencing hearing, Mason’s attorney argued that “the law keeps changing where it’s taking more and more consideration into account for mental health issues as well as previous traumas.” She argued that “those things can result in the intersection with the criminal justice system.” The People submitted without comment. The court found that Mason “squarely falls within the parameters of the three strikes law” and denied the request to exercise its discretion and dismiss the strike priors. The court noted that Mason was on probation for the 2017 prior at the time that “he committed these heinous offenses.” In MA070965, the court sentenced Mason to an indeterminate term of 25 years to life on the rape offense. The court imposed the indeterminate terms for the assault with a deadly weapon and criminal threats offenses concurrent to one another but consecutive to the rape offense. For the escape offense, the court selected the middle term and doubled it for a consecutive term of four years. The court added five years for 6 one of the two sentencing enhancements alleged pursuant to section 667, subdivision (a), but exercised its discretion to dismiss the other “under 1385.” The court issued criminal protective orders protecting the victim of the rape conviction. In addition, the court issued a criminal protective order protecting Ojo, the victim of the assault with a deadly weapon and criminal threats charges. In MA069753, the court imposed a 32-month term, consecutive to the sentence in MA070965 “due to the admission of the strike prior.” Mason timely appealed. DISCUSSION Mason contends that the trial court abused its discretion when it sentenced him to the middle term for his escape conviction. In the alternative, he asserts we should find his attorney rendered ineffective assistance of counsel for failing to ask for the lower term for the escape conviction. He also contends that the court erred when it 1) issued an unauthorized criminal protective order for Ojo; and 2) sentenced him to a 32-month term in MA069753 because the alleged strike prior was dismissed. The Attorney General concedes the latter two contentions and we accept the concessions. We otherwise affirm the trial court’s judgment. I. The trial court did not abuse its discretion by imposing the middle term for the escape conviction Mason argues the trial court erred by imposing the middle term for the escape conviction. A trial court is presumed to “have acted to achieve legitimate sentencing objectives” unless there is a clear showing that the “sentencing decision was arbitrary or irrational.” (People 7 v. Giminez (1975) 14 Cal.3d 68, 72.) Trial court sentencing decisions are reviewed for abuse of discretion which may be found where the court relies upon improper or irrelevant circumstances. (People v. Gonzalez (2024) 107 Cal.App.5th 312, 323.) Sentencing decisions must be based on the court’s understanding of the full scope of its discretionary powers. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) When a court fails to exercise its informed discretion, the appropriate remedy is remand for resentencing absent a clear indication in the record that the trial court “would have reached the same conclusion ‘even if it had been aware that it had such discretion.’ [Citations.]” (Ibid.) A sentencing court is presumed to have known and applied the applicable law unless there is evidence to the contrary. (People v. Nielsen (2026) 119 Cal.App.5th 816, 823.) a. Mason Has Not Shown the Lower Term Presumption Applied Section 1170, subdivision (b) became effective January 1, 2022. It provides that a court “shall order imposition of the lower term” if it finds that a convicted person “has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence” and the experience was a “contributing factor in the commission of the offense.” (§ 1170, subd. (b)(6)(A).) In its assessment, a court may consider “the record in the case, the probation officer’s report, other reports . . . and statements in aggravation or mitigation . . . and any further evidence introduced at the sentencing hearing.” (§ 1170, subd. (b)(4).) If a court finds that “the aggravating circumstances outweigh the mitigating circumstances” it may decline to impose the lower term. (§ 1170, subd. (b)(6).) 8  Before the presumption for the lower term is triggered, there must be an initial showing that psychological or childhood trauma was a contributing factor in the commission of the offense. (People v. Fredrickson (2023) 90 Cal.App.5th 984, 992.) “[O]nly then must the record affirmatively show compliance with the statute.” (Ibid.) Mason contends that the record triggered the statutory presumption. The sanity phase record does show that Mason suffered from mental health disorders. It also shows that Mason experienced trauma. The defense argues, and we agree, that psychological trauma based on mental illness may trigger qualification for lower term sentencing. (See People v. Banner (2022) 77 Cal.App.5th 226, 241.) But, “[p]sychological trauma must attend the illness, and that trauma must contribute to the crime.” (Ibid.; see also People v. Tilley (2023) 92 Cal.App.5th 772, 777–778.) Mason argues that the court should have taken evidence submitted for a wholly different purpose at a different stage of the proceedings and extrapolated the connection between the evidence and the statutory requirements. But Mason ignores two missing components: 1) there must be a nexus between the mental illness and psychological trauma, and 2) there must be a showing that the psychological or childhood trauma was a contributing factor in the commission of the escape offense. (§ 1170, subd. (b)(6)(A); see People v. Fredrickson, supra, 90 Cal.App.5th at p. 994.) The court is not required to fill these gaps in the record. “We must rest our analysis not on a hypothesis but on evidence in the record.” (People v. Banner, supra, 77 Cal.App.5th at p. 239; see also People v. Lopez-Tapia (2026) 120 Cal.App.5th 690, 700.) 9  Here, the record is silent as to whether Mason’s mental illness history resulted in psychological trauma or whether either psychological or childhood trauma contributed to the commission of the escape offense. Of course, the expert witnesses who testified were not asked to opine regarding the causal link required in the statute. The threshold for establishing a contributing factor to trigger the court’s analysis under section 1170, subdivision (b)(6) is low, but there must be some showing. (People v. Lopez-Tapia, supra, 120 Cal.App.5th at p. 700.) Nothing in the record suggests the court failed to consider its discretionary sentencing power. To the contrary, section 1170, subdivision (b) had been in effect for over a year and a half when Mason was sentenced in September 2023, and we presume the court knew of the law. Also, the court presided over the trial and sanity proceedings and therefore was aware of Mason’s alleged trauma and mental health issues. The court exercised its discretion and commented on counsel’s aspiration that Mason would seek mental health services in prison. “In the absence of evidence to the contrary, we presume that the court ‘knows and applies the correct statutory and case law.’ ”7 (People v. Thomas (2011) 52 Cal.4th 336, 361; see also People v. Andrade (2000) 79 Cal.App.4th 651, 654, fn. 1.) Because the presumption for the lower term was not triggered, the trial court did not need to weigh the mitigating and aggravating circumstances when it chose the middle term. 7 Respondent argues that aggravating factors justify the imposed sentence, but the alleged aggravating factors were neither stipulated to by the parties nor found true beyond a reasonable doubt. (§ 1170, subd. (b)(2).) 10  b. Mason Has Not Shown Ineffective Assistance of Counsel Mason notes that his attorney did not expressly ask the court to impose the lower term for his escape conviction. Recognizing that claims alleging a court’s failure to properly exercise its sentencing discretion may not be raised for the first time on appeal, Mason urges us to find his claim was not forfeited. (People v. Scott (1994) 9 Cal.4th 331, 353, overruled on another ground in People v. Soto (2011) 51 Cal.4th 229.) In the alternative, Mason asserts that his attorney’s failure to argue for imposition of the lower term constituted ineffective assistance of counsel. We are not persuaded. Here, as in Tilley, Mason “did not seek the lower term . . . ; object to the imposition of the middle term; or argue that [he] suffered any psychological trauma as a result of mental illness.” (People v. Tilley, supra, 92 Cal.App.5th at p. 778.) Likewise, he did not argue that psychological or childhood trauma contributed to the commission of the escape offense. The claim is forfeited. Mason also asks us to find his attorney’s failure to seek the lower term constituted ineffective assistance of counsel. A forfeited claim cannot become “cognizable . . . merely by asserting ineffective assistance of counsel.” (People v. Thompson (2010) 49 Cal.4th 79, 121, fn. 14; People v. Brannon-Thompson (2024) 104 Cal.App.5th 455, 465.) To substantiate his argument, Mason must show: “(1) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced” him. (People v. Tilley, supra, 92 Cal.App.5th at p. 778; Strickland v. Washington (1984) 466 U.S. 668, 687–688.) A reviewing court may first examine the 11 sufficiency of the prejudice claim before reaching the question of whether counsel’s performance was deficient. (Strickland, at p. 697.) To establish prejudice, Mason must establish a reasonable probability of a different result had counsel not erred. (Tilley, at p. 778.) Speculation as to the effect of errors or omissions is insufficient. (Ibid.) As to prejudice, Mason’s argument is, in the main, that the court would have found the statutory presumption applied had counsel argued for it. In support of this conclusion, he points to the court’s dismissal of one of the prior serious felony enhancements as an indication that the court would have been receptive to an argument for the lower term. As we have said above, the record supports our previous conclusion that the court understood its discretionary choices and exercised them. We are not persuaded, however, that the fact the court exercised its discretion in one regard can be interpreted to mean it would have exercised its discretion in another. The argument is both conclusory and speculative. Mason’s prejudice claim is insufficient and therefore his ineffective assistance of counsel claim fails. II. The criminal protective order for John Ojo was not authorized and must be vacated A court may issue a protective order to protect a witness or victim during the pendency of a criminal case. (§ 136.2.) Generally, protective orders issued under section 136.2 are limited in duration and may not extend beyond the court’s jurisdiction. (People v. Ponce (2009) 173 Cal.App.4th 378, 382.) 12 Here, the superior court issued a subsequent8 protective order for Ojo after it sentenced Mason. While post-conviction protective orders are available for certain offenses, Mason’s convictions for the offenses committed against Ojo are not authorized by the statute.9 The Attorney General concedes this claim. We accept the concession. III. The sentence imposed in MA069753 must be vacated because the court erroneously doubled the sentence The superior court sentenced Mason to a consecutive term for his probation violation in MA069753. The court selected the middle term, doubled it, and ordered that he serve the sentence consecutive to the sentence in MA070965. Mason contends, and the Attorney General agrees, that he did not admit the strike prior allegation when he pled no contest to the residential burglary offense, and it was therefore improper for the trial court to double the term. The strike prior allegation was dismissed by the prosecutor when Mason was sentenced. We accept the Attorney General’s concession. DISPOSITION Appellant’s sentence in MA069753 is vacated and the superior court is directed to correct the abstract of judgment to reflect a term of one year four months. The superior court will 8 The initial protective order was issued on April 11, 2017, at arraignment. 9 Mason asserts, and we agree, that this court may reach this issue despite his attorney’s failure to object to issuance of the order at the sentencing hearing. (People v. Ponce, supra, 173 Cal.App.4th at p. 381.) 13 prepare a corrected abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. The judgment in MA069753 is affirmed as modified. The superior court is further directed to vacate its order issuing a criminal protective order for John Ojo in MA070965. In all other respects, the judgment is affirmed in MA070965. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS DELGADO, J.* We concur: ADAMS, P. J. HANASONO, J. * Judge of the Santa Clara Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 14