P. v. Mascio

Filed 6/20/19 P. v. Mascio CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JASON PATRICK MASCIO,
Defendant and Appellant.
D075553
(Super. Ct. No. RIF1700753)
APPEAL from a judgment of the Superior Court of Riverside County, Steven G.
Counelis, Judge. Judgment conditionally reversed and cause remanded with directions.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Brendon W.
Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

-- 1 of 11 --

2
A jury convicted Jason Patrick Mascio of willfully and unlawfully carrying a
concealed dirk or dagger on his person (Pen. Code,1 § 21310; count 1) and willfully and
unlawfully resisting arrest (§ 148, subd. (a)(1); count 4). The jury also found true three
prior conviction allegations and a prior strike allegation. The trial court sentenced
Mascio to a six-year prison term.
Mascio contends that insufficient evidence supports his resisting arrest conviction.
We reject this assertion. He also contends that this matter should be remanded to the trial
court for a mental health diversion eligibility hearing under newly enacted section
1001.36. We conclude that there is sufficient evidence in the record suggesting that
Mascio can make a prima facie showing of eligibility for mental health diversion under
section 1001.36. Accordingly, we conditionally reverse the judgment for the limited
purposes specified post in the disposition. Finally, Mascio claims, and the People agree,
that the April 27, 2018 minute order should be amended to accurately reflect the trial
court's dismissal of two drug counts.
FACTUAL BACKGROUND
On an afternoon in December 2016 a Riverside County sheriff's deputy responded
to a convenience store after receiving a report from employees at the store about an
aggressive man who refused to leave the property. When the deputy arrived at the store
he met Mascio outside. Mascio appeared upset with the store employees. The deputy's
1 Undesignated statutory references are to the Penal Code.

-- 2 of 11 --

3
body camera recorded the encounter and the prosecution played the recording for the
jurors.
Mascio told the deputy that the store employees had harassed him and accused
him of stealing. Mascio offered to provide identification and stated that he did not
consent to a search because he was not on parole or probation. After the deputy told
Mascio that he would do a weapons pat down, Mascio said "no" and then stated "here's a
weapon a right here" and reached for a knife he had in his waistband under his jacket.
The deputy told Mascio "don't do that" as he drew his handgun and pointed it at Mascio.
The deputy told Mascio to get on his knees. Instead of complying, Mascio told the
deputy that he would "set the stuff down." After Mascio refused to comply with five
commands to "[g]et down on [his] knees," the deputy pepper sprayed Mascio. When
Mascio finally went to his knees, the deputy told him to put his hands on the top of his
head and warned him that "[i]f you make another reach for [the knife] you're gonna get
shot." The deputy held Mascio at gunpoint until backup arrived.
After backup arrived, the deputy searched Mascio and found a knife with a two-
and-a-half-inch fixed blade in a sheath on Mascio's waistband which was under Mascio's
jacket.
DISCUSSION
I. SUFFICIENCY OF THE EVIDENCE
A. Applicable Law
"Every person who willfully resists, delays, or obstructs any . . . peace officer . . .
in the discharge or attempt to discharge any duty of his or her office" is guilty of a

-- 3 of 11 --

4
misdemeanor. (§ 148, subd. (a)(1), italics added.) "The legal elements of [a violation of
section 148, subdivision (a)(1)] are as follows: ' "(1) the defendant willfully resisted,
delayed, or obstructed a peace officer, (2) when the officer was engaged in the
performance of his or her duties, and (3) the defendant knew or reasonably should have
known that the other person was a peace officer engaged in the performance of his or her
duties." ' " (Yount v. City of Sacramento (2008) 43 Cal.4th 885, 894-895.)
Although section 148 is most often applied to the physical acts of a defendant,
such as physical resistance, hiding, or running away from a police officer (In re
Muhammed C. (2002) 95 Cal.App.4th 1325, 1329), it also applies to "passive delay or
obstruction of an arrest, such as refusal to cooperate." (People v. Curtis (1969) 70 Cal.2d
347, 356, fn. 6, disapproved on another ground in People v. Gonzalez (1990) 51 Cal.3d
1179, 1222, which was superseded by statute on another point of law as stated in People
v. Centeno (2014) 60 Cal.4th 659, 676.) For example, in In re Muhammed C., the
appellate court concluded that "a reasonable inference could be drawn that appellant
willfully delayed the officers' performance of duties by refusing the officers' [five]
requests that he step away from the patrol car . . . ." (In re Muhammed C., at p. 1330.)
"When the sufficiency of the evidence to support a conviction is challenged on
appeal, we review the entire record in the light most favorable to the judgment to
determine whether it contains evidence that is reasonable, credible, and of solid value
from which a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt." (People v. Elliott (2012) 53 Cal.4th 535, 585.) " 'Substantial evidence includes
circumstantial evidence and any reasonable inferences drawn from that evidence.' "

-- 4 of 11 --

5
(People v. Clark (2011) 52 Cal.4th 856, 943.) We do not reweigh the evidence, resolve
conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Little
(2004) 115 Cal.App.4th 766, 771.) The testimony of a single witness, if believed by the
jury, is sufficient to support a conviction, unless that testimony is physically impossible
or inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181.) " '[T]he
relevant question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.' " (People v. Hatch (2000) 22 Cal.4th 260, 272, italics
omitted.)
B. Analysis
Mascio does not dispute that sufficient evidence revealed his knowledge that the
deputy was a peace officer engaged in the performance of his duties and that the deputy
was engaged in the performance of his duties. Relying on People v. Quiroga (1993) 16
Cal.App.4th 961 (Quiroga), Mascio contends that insufficient evidence supports the first
element—that he willfully resisted, delayed, or obstructed a peace officer. Noting that he
ultimately complied with the deputy's commands to get on his knees, Mascio claims that
the momentary delay in doing so, accompanied by his verbal expressions of questioning
why he was being subjected to the command and his request to first be allowed to place
his possessions on the ground, does not constitute obstructing or delaying the officer.
In Quiroga, supra, 16 Cal.App.4th 961, the defendant challenged the sufficiency
of the evidence supporting his conviction for violating section 148. An officer entered an
apartment without a warrant and defendant demanded that the officer leave. (Quiroga, at

-- 5 of 11 --

6
p. 964.) The defendant then argued with the officer before complying with orders to sit
on a couch, to place his hands on his lap, and to stand up. (Ibid.) The Quiroga court
determined that defendant's eventual compliance with the officer's orders did not violate
the law because section 148 does not criminalize "a person's failure to respond with
alacrity to police orders [and defendant] possessed the right under the First Amendment
to dispute [the officer's] actions." (Quiroga, at p. 966.)
Unlike the defendant in Quiroga, supra, 16 Cal.App.4th 961, who had no weapon
and was slow to respond to commands, Mascio ignored five stern commands, at gun
point, to "[g]et down on [his] knees." During the encounter Mascio admitted having a
weapon and reached under his jacket for the weapon. At the time, the deputy did not
know what type of weapon Mascio possessed. Although Mascio later told the deputy that
he had a knife, the deputy did not hear this during the heat of the encounter. Mascio
finally complied with the deputy's repeated commands after the deputy administered
pepper spray.
Mascio was not arrested for protesting prior to complying with the deputy's
repeated orders to get on his knees, but for completely failing to comply with the orders
until the deputy's use of force (pepper spray) ultimately led to compliance. (See People
v. Gutierrez (2009) 174 Cal.App.4th 515, 518-519 [officer's use of pepper spray did not
constitute excessive force where defendant refused to obey officer's commands and
punched officer in the face].) The jurors reasonably concluded that Mascio's failure to
get on his knees, after the deputy's repeated orders, constituted willful resistance to an

-- 6 of 11 --

7
officer engaged in the performance of his duties. Accordingly, we affirm the judgment of
conviction.
II. MENTAL HEALTH DIVERSION
Effective June 27, 2018, the Legislature created a new pretrial diversion program
for defendants suffering from a qualifying mental disorder. (§ 1001.36, subds. (a) &
(b)(1).) One purposes of the legislation was to promote "[i]ncreased diversion of
individuals with mental disorders . . . while protecting public safety." (§ 1001.35, subd.
(a).) A trial court may grant pretrial diversion if all the following eligibility criteria are
satisfied: (1) a qualified mental health expert has recently diagnosed the defendant with a
qualifying mental disorder, (2) the "mental disorder was a significant factor in the
commission of the charged offense," (3) the defendant's symptoms will respond to
treatment, (4) the defendant consents to diversion and waives his or her speedy trial
rights, (5) the defendant agrees to comply with treatment, and (6) the defendant will not
pose an unreasonable risk of danger to public safety if treated in the community.
(§ 1001.36, subd. (b)(1)(A)-(F).)2
Mascio contends that the mental health diversion program applies retroactively
and that he qualifies for treatment based on the trial court's act of referring him to mental
health court for an evaluation. During the proceedings the court observed that Mascio
acted impulsively and could not control his behavior. Accordingly, Mascio contends that
2 Under section 1001.36, subdivision (b)(2), a defendant may not be placed into a
diversion program for certain charged offenses, such as murder, voluntary manslaughter,
rape, and several other specified crimes. The Attorney General does not contend that
Mascio is ineligible for diversion under this subdivision.

-- 7 of 11 --

8
his conviction should be conditionally reversed to permit the trial court to consider
granting him mental health diversion. The People disagree, arguing that the statute is not
retroactive, nothing in the record suggests that Mascio is eligible for mental health
diversion, and a remand would be futile. We agree with Mascio.
The Supreme Court has said that it is an "inevitable inference" that the Legislature
intends that new statutes imposing a lighter penalty should apply to every case in which
the judgment is not yet final. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299,
307.) In People v. Frahs (2018) 27 Cal.App.5th 784 (Frahs) the court concluded that the
mental diversion program is ameliorative and applies retroactively to defendants whose
judgments were not final at the time of its enactment. (Id. at p. 791.) Our Supreme Court
has granted review of Frahs and will decide the issue. (People v. Frahs (Dec. 27, 2018,
S252220).) Pending that decision, we agree with Frahs that section 1001.36 applies
retroactively.
Accordingly, we turn to the record to determine whether Mascio potentially meets
the threshold requirements for diversion. As a preliminary matter, it is unclear what
evidentiary showing is required to warrant a remand. In Frahs, the defendant "appear[ed]
to meet" only one of the requirements (a diagnosed mental disorder), but the court held
that he had made a sufficient showing on appeal to warrant remand. (Frahs, supra, 27
Cal.App.5th at p. 791.) We need not decide this issue because our review of the record
suggests that Mascio is potentially eligible for diversion and remanding the matter would
not be futile.

-- 8 of 11 --

9
The first factor is a recent diagnosis by a qualified mental health expert that
Mascio suffers from a qualifying mental disorder. (§ 1001.36, subd. (b)(1)(A).) Here,
Mascio told that probation officer that in 2007, while in prison, he was diagnosed with
bipolar disorder and that he takes medication for the condition. Defense counsel also
represented that Mascio receives social security disability income for this disorder.
Bipolar disorder is a qualifying mental disorder. (§ 1001.36, subd. (b)(1)(A).)
The record also indicates that the trial court believed that a mental disorder may
have played a significant role in the commission of the charged offense. (§ 1001.36,
subd. (b)(1)(B).) Before sentencing, the trial court queried defense counsel, who had
spent two years as a mental health attorney, regarding the mental health court evaluation
process. Without objection by the People, the trial court referred Mascio to mental health
court. Ultimately, however, mental health court refused to screen Mascio because he had
expressed the desire to appeal his conviction.
The record also suggests that Mascio would consent to diversion. (§ 1001.36,
subd. (b)(1)(D).) Defense counsel represented to the court that Mascio was willing to
undergo counseling and treatment. Speaking directly to the court, Mascio stated that he
has struggled with drug addiction and mental illness, that he had "no problem seeking
treatment. I believe that I can benefit from treatment." Further, Mascio's pursuit of
diversion in this appeal suggests that he would agree to comply with treatment.
(§ 1001.36, subd. (b)(1)(E).) Finally, the record at this point does not compel the
conclusion that Mascio poses an unreasonable risk of danger to public safety if treated in
the community. (§ 1001.36, subd. (b)(1)(F).) Mascio's prior convictions include

-- 9 of 11 --

10
residential and commercial burglary, battery, vandalism, reckless driving and driving
under the influence. Although the trial court declined to dismiss Mascio's prior strike for
residential burglary, this decision requires a different analysis than a court's consideration
of mental health diversion. Thus, the record here does not support the conclusion that a
remand for consideration of mental health diversion would be futile.
Accordingly, we reverse the judgment with directions for the trial court to
consider diverting Mascio under section 1001.36. We express no opinion on whether
Mascio will be able to make a prima facie showing of eligibility on remand or how the
trial court should exercise its discretion if it finds Mascio eligible for diversion.
III. CORRECTION OF MINUTES
On April 27, 2018, the trial court granted the People's motion to dismiss counts 2
and 3. Mascio contends, and the People agree, that the minute order does not comport
with the court's oral pronouncement because it only reflects the dismissal of count 3. We
direct the trial court to amend the minute order to also reflect the dismissal of count 2.
(People v. Mitchell (2001) 26 Cal.4th 181, 185 [" '[A] court has the inherent power to
correct clerical errors in its records so as to make these records reflect the true facts.' "].)
DISPOSITION
The judgment is conditionally reversed. The cause is remanded to the trial court
with directions to conduct a diversion eligibility hearing under Penal Code section
1001.36 within 90 days from the issuance of the remittitur, unless there is good cause
shown for a continuance of such hearing. If the trial court determines that defendant is
eligible for diversion, the court should grant diversion and, if the defendant successfully

-- 10 of 11 --

11
completes diversion, defendant's charges should be dismissed. If, however, the trial court
concludes that defendant is not eligible for diversion or defendant fails to complete
diversion, his conviction and sentence shall be reinstated. The trial court is further
directed to correct the April 27, 2018 minute order as provided in part III of this opinion.
NARES, Acting P. J.
WE CONCUR:
AARON, J.
DATO, J.

-- 11 of 11 --