People v. Mukai

• Decision Date: 12 April 2021
• Docket Number: F078948
• Parties: THE PEOPLE, Plaintiff and Respondent, v. MASAYOSHI MUKAI, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. MASAYOSHI MUKAI, Defendant and Appellant.

F078948

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

April 12, 2021

ORDER MODIFYING OPINION AND DENYING REHEARING[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on April 12, 2021, be modified in the following particulars:

1. On page 28, the first full paragraph beginning "We thus conclude" is modified to read as follows:

We thus conclude the court did not abuse its discretion when it imposed the upper term in this case. While the court improperly relied on one particular aggravating circumstance, the error was not prejudicial because it is "not reasonably probable that a more favorable sentence would have been imposed in the absence of the error." (People v. Avalos (1984) 37 Cal.3d 216, 233; People v. Scott, supra, 9 Cal.4th at p. 355.)

There is no change in the judgment. Appellant's petition for rehearing is denied.

MEEHAN, J.

WE CONCUR:

FRANSON, Acting P.J.

DE SANTOS, J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Merced Super. Ct. No. 17CR-07747)

OPINION

THE COURT^*

APPEAL from a judgment of the Superior Court of Merced County. David W. Moranda, Judge.

Jyoti Meera Malik, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant and defendant Masayoshi Mukai admitted he had consumed " 'unknown' amounts" from a " 'pile' of drugs" on the night before and morning of December 26, 2017, and then drove to Fresno with a friend, 20-year-old Maya Isabel Thone (Ms. Thone). While on State Route 152, he drove in excess of 100 miles per hour, weaved in and out of traffic, and his vehicle overturned. Ms. Thone was pronounced dead at the scene. Defendant tested positive for methamphetamine, cocaine, and opiates.

Defendant pleaded guilty as charged to gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a))¹ and three other offenses. He was sentenced to the upper term of 10 years.

On appeal, defendant argues the court abused its discretion when it imposed the upper term, relied on aggravating factors that were elements of the offense, and failed to consider mitigating factors. Defendant also argues the court improperly ordered him to pay a restitution fine and assessments without determining whether he had the ability to pay in violation of his constitutional right to due process based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We order correction of the abstract of judgment and otherwise affirm.

FACTS²

On December 26, 2017, at approximately 6:06 p.m., California Highway Patrol Officer Mariscal responded to a dispatch about a traffic accident that occurred on the two-lane eastbound direction of State Route 152 near Flanagan Road in Merced County. At 6:27 p.m., Officer Mariscal arrived on the scene and determined there had been a solo vehicle rollover. There were two occupants trapped inside of a silver 2013 Nissan Sentra.The vehicle was on its roof, it was heavily damaged and crushed, and the front seat airbags had been deployed.

Ms. Thone was in the front passenger seat of the crushed vehicle and still wearing her seat belt. She suffered fatal injuries as a result of the incident, and emergency personnel at the scene pronounced her dead at 6:22 p.m. Ms. Thone was 20 years old and in her third year of nursing school.

Defendant was trapped in the driver's seat and his seatbelt was still fastened. Officer Mariscal reported defendant was heavily intoxicated and his eyes were dilated. He did not answer questions or identify himself when asked. A paramedic cut off defendant's seatbelt and he fell out of the car, rolled out, stood up, and had a blank stare. Defendant had blood on his mouth and on top of his head, and scratches on his arms. Defendant made no attempt to communicate with Ms. Thone and did not ask the officer or emergency personnel about her condition.

Officer Mariscal again asked defendant for his name. Defendant eventually said his name was "James," and he did not know where he was or what had happened. Defendant was subsequently identified as Masayoshi Mukai because a business card with his name was found in the vehicle's debris. He had a valid driver's license and was the registered owner of the vehicle.

Officer Mariscal asked defendant to perform a Preliminary Alcohol Screening (PAS) test, but defendant did not give a sufficient sample. Defendant was airlifted to a hospital in Modesto.

During his investigation at the scene, Officer Mariscal spoke with two witnesses who were driving in the same eastbound direction as defendant. Charles Massey reported that he was going 65 miles per hour in the number one (left) lane and saw defendant's car as it was "fast approaching from the rear." Defendant's car turned left into the center dirt median and passed Massey's car on the left side while going over 100 miles per hour.Defendant tried to turn right to get back onto the road, but he lost control and went into the field on the far, right shoulder of the roadway.

Luke Catrina said he was going approximately 68 miles per hour in the number two (right) lane and also saw defendant traveling at a high rate of speed in the number one lane. Catrina saw defendant pass another vehicle using the center median, cross back onto the road, and lose control. Defendant's car crossed both eastbound lanes, went into the field off the right shoulder, hit a ditch, and rolled over several times.

Officer Mariscal found a blue duffel bag in the debris from defendant's overturned car. It contained a Ziploc bag with black tar heroin, cocaine, PCC that was a precursor of PCP, and amphetamine and morphine pills.

Later that night, Officer Mariscal obtained a warrant to get a blood sample from defendant at the hospital. The blood test was taken at 10:06 p.m., and was positive for cocaine, methamphetamine, and opiates. Defendant's urine sample was positive for amphetamines, benzodiazepine, cocaine, PCP, and opiates.

PROCEDURAL HISTORY

On December 29, 2017, a felony complaint was filed in the Superior Court of Merced County charging defendant with count 1, gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)); count 2, driving under the influence of a drug causing death or great bodily injury (Veh. Code, § 23153, subd. (f)); count 3, misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)); and count 4, misdemeanor possession of heroin (id., § 11350).

Defendant was released on bond.

Defendant's statements to the probation officer

After being advised of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436, defendant gave a lengthy statement prior to his plea to the probation officer, that both the court and the parties discussed at the subsequent sentencing hearing.

Defendant, who was 35 years old, had a graduate degree from Cambridge University in England, and said he finished law school but never took the bar examination. He had worked at various investment firms and nonprofit organizations. Defendant said his name had been "James Masa Maher," and he legally changed it to "Masayoshi Mukai" in 2011. Defendant had no prior juvenile or criminal record. He had three prior traffic convictions for speeding and two for driving without a seatbelt and did not have any points on his driving record.

Defendant had a 13-year-old daughter from a previous relationship. Defendant became "very emotional when talking about his daughter and stated, '[Ms. Thone] knew how important my daughter is to me. She lived with me until she was twelve. I was a single father. I became very depressed when she went to live with her mother. Ever since my daughter left, my life fell apart. She was twelve...."

Defendant said in 2005, he married a woman who was not his daughter's mother. The couple separated about six months prior to the fatal crash. Defendant said the separation from his wife " 'assisted in' his 'depression' leading up to the instant offense being committed. Moreover, the defendant stated that he and his wife reunited after the instant offense occurred; however, he became very emotional when he advised this officer that he and his wife, separated again approximately one week prior to [his wife] ultimately committing suicide on August 3, 2018."

Defendant, who lived in San Jose, explained why Ms. Thone was with him on the day of the crash and where they were going. " '[Ms. Thone] knew ... how depressed I was that [my daughter] left to go live with her mother. [Ms. Thone] was very worried about me being so depressed. She knew me and my daughter always went to Hmong New Year in Fresno. She encouraged me and told me that my daughter would text me but she didn't. [She] offered to go with me to Hmong New Year. She was so worried because she knew that I was doing drugs and stuff, but I didn't feel intoxicated. I told her, "I honestly don't feel impaired." I drove for like three hours and there was a lot oftraffic. I want whatever they [referring to Ms. Thone's family] want[]. That's what I want as well.' "

Defendant said he took full responsibility for his actions and became emotional talking about Ms. Thone and her family. He said he wanted the maximum sentence: "Assuming they want the max. I will take the max, because I want [Ms. Thone's family] to heal, out of concern for them. I feel so horrible. I'll take whatever's in my power to do to help the family heal. It's in my power to...