People v. Angel Luis Bass

1

THE PEOPLE, Plaintiff and Respondent, v. ANGEL LUIS BASS, Defendant and Appellant.

H049528

California Court of Appeals, Sixth District

June 28, 2024

NOT TO BE PUBLISHED

(Santa Clara County Super. Ct. No. C2007193)

Wilson, J.

In 2021, a jury found Angel Luis Bass guilty of numerous charges involving multiple victims, including first-degree murder assault with a deadly weapon, simple assault, and attempted arson. The jury also found true allegations that in the commission of an assault with a deadly weapon, Bass inflicted great bodily injury on the victim. The trial court sentenced Bass to a total term of 25 years to life in state prison consecutive to an additional term of seven years.

On appeal, Bass argues that the jury was improperly instructed as to the use of charged offenses to determine his intent for the murder charges. He also claims that one of the convictions for misdemeanor assault, a lesser-included offense, was time-barred by the statute of limitations. Bass further contends we should remand for resentencing based on (1) Senate Bill Number 567 (2020-2021 Reg. Sess.) (Senate Bill 567), which amended Penal Code section 1170^[1] to limit the trial court's discretion to impose upper term sentences (and was enacted after he was sentenced), and (2) Assembly Bill Number 518 (2020-2022 Reg. Sess.) (Assembly Bill 518) and its amendments to section 654, which provides the trial courts with newfound discretion to sentence under any count as charged.^[2] The Attorney General concedes that the matter may be appropriate for remand pursuant to Senate Bill 567 but contests the remaining requests.

We initially reversed Bass's conviction for one misdemeanor assault as time-barred, but affirmed the judgment in all other respects. On March 12, 2024, the California Supreme Court transferred the matter back to this court "with directions to vacate [our] decision and reconsider the cause in light of People v. Salazar (2023) 15 Cal.5th 416." Accordingly, this court vacated its prior decision in the matter.

Having considered the Salazar case, the record, and the parties' supplemental briefing, we confirm our previous decision to reverse Bass's conviction of one misdemeanor assault as time barred. We also reverse Bass's sentence and remand for resentencing consistent with section 1170 as amended by Senate Bill 567 and section 654 as amended by Assembly Bill 518.

I. Factual and Procedural Background

A. Charges, Verdict, and Sentencing

On January 28, 2021, the Santa Clara County District Attorney's Office filed a first amended information charging Bass with the murder of James Milton (§ 187, subd. (a); count 1); assault with a deadly weapon (a nail gun) upon Milton (§ 245, subd. (a)(1); count 2); attempted murder of V.Z.^[3] (§§ 664, 187, subd. (a); count 3); assault with a deadly weapon (a machete) upon V.Z. (§ 245, subd. (a)(1); count 4); assault with a deadly weapon (a fire) upon V.Z. (§ 245, subd. (a)(1); count 5); arson (§ 451, subd. (d); count 6); assault with a deadly weapon (a pipe) upon J.L. (§ 245, subd. (a)(1); count 7); assault with a deadly weapon (a stick) upon R.M. (§ 245, subd. (a)(1); count 8); and inflicting corporal injury on a spouse upon S.B. (§ 273.5, subd. (a); counts 9-11). The information also alleged that in the commission of count 2, Bass inflicted great bodily injury on Milton (§§ 12022.7, subd. (a), 1203 subd. (e)(3)).

On April 26, 2021, prior to the commencement of trial, Bass entered a plea of no contest to counts 9 through 11.

On May 18, 2021, the jury convicted Bass of murder (count 1), assault with a deadly weapon, a nail gun (count 2), the lesser-included misdemeanor offense of simple assault (count 4), assault with a deadly weapon, a fire (count 5), the lesser-included offense of attempted arson (count 6), and the lesser-included misdemeanor offense of simple assault (count 8). The jury found Bass not guilty of attempted murder (count 3), assault with a deadly weapon, a machete (count 4), arson (count 6), and assault with a deadly weapon, a stick (count 8). The jury also found true the allegation that Bass inflicted great bodily injury in the commission of count 2. The jury was unable to reach a decision on the assault with a deadly weapon in count 7, and the trial court declared a mistrial.^[4]

On September 30, 2021, the trial court sentenced Bass to 25 years to life in state prison for murder (count 1). The court also imposed a consecutive term of seven years, consisting of the upper term of four years for assault with a deadly weapon (count 5), and three consecutive terms of one year (one-third the midterm of three years) for corporal injury on a spouse (counts 9, 10, and 11). The court additionally imposed two concurrent terms of six months each in county jail for misdemeanor assault (counts 4 and 8).

Pursuant to section 654, the court imposed and stayed the following terms: (1) an upper term of four years on assault with a deadly weapon plus three years for the infliction of great bodily injury (count 2); and (2) the upper term of three years on attempted arson (count 6).

Bass timely appealed.

B. Factual Background

1. Prosecution's Case

a. Assault and Death of James Milton (Counts 1 and 2)

On May 11, 2020, San Jose Fire Department Captain Michael Butler responded to a report of a fire in a homeless encampment near Senter Road in San Jose. Upon his arrival, Butler observed what appeared to be a large rope or a clothesline between two trees with blankets thrown over them. As Butler could see the fire from behind the blankets, he grabbed a hand tool to chop down the clothesline in order to get a hose line in place towards the fire. Upon chopping down the line and getting a clear view of the scene, Butler discovered a person, later identified as James Milton, whose lower body was on fire. After extinguishing the fire, Butler observed that Milton was still alive, but had extensive injuries on his face consistent with being hit repeatedly with a blunt object. Butler also observed numerous burn injuries to Milton's lower body.

Grant Widmer, a detective for the San Jose Police Department, also responded to the fire after receiving a report that Milton had been located at the scene with multiple injuries. As Milton was being loaded into an ambulance, Widmer was approached by Bass, who wished to make a statement to him. Widmer recorded Bass's statement on his body-worn camera. Bass stated that Milton, who did not live in the encampment, came over with a nail gun and tried to attack him. Bass stated that he grabbed the gun from Milton and asked him what he was doing, then "smacked" him with it. He then aimed the gun at Milton's butt and pressed it, causing a nail to go into Milton's tailbone. Bass also noted that Milton did not end up doing anything to him with the nail gun. Bass also stated that he knew Milton "from Monterey Road." Bass claimed the incident had taken place approximately two hours before, and he had been waiting there for the police to show up. Bass stated that during this time, he had been "attending" Milton and poured water on him to "wake [him] up." Bass denied any knowledge of the fire.

Marco Sousa, a San Jose Police Department officer, responded to the scene at the request of the fire department. Upon arriving and noticing the injuries on Milton's face and lower body, Sousa investigated the fire location, where he observed a burn area right outside a large tent. Sousa noticed blood on top of some articles of clothing "a few paces" away from the burn area. Sousa collected a nail gun and a hammer approximately five to six feet from the blood-spattered items. Sousa noted that the nail gun was heavy-duty and is used to anchor things into concrete surfaces.

Santa Clara County Crime Laboratory Criminalist Michelle Bell performed a DNA analysis of swabs taken from the nail gun and the hammer. She concluded there was a match to Milton to a high degree of certainty but was unable to conclude there was a match to Bass.

Mike Afshar, an arson investigator for the San Jose Fire Department, was called to the scene to investigate the origin and cause of the fire. Afshar explained that when conducting such an investigation, he first looks for the area where the fire started and then examines the area for potential ignition sources. Upon arriving at the scene, Afshar observed the main burn area to be approximately 10 foot by 15 foot. Afshar next investigated the area where Milton was found, which was approximately 20 feet away from the main burn area. Afshar did not notice the smell of any ignitable liquids in the area.

Afshar collected samples of soil from inside the burn areas as well as the unburned areas around the main burn site in order to test them for the presence of ignitable liquids.

He obtained Bass's shoes and belt, as well as Milton's shoes and clothing, to be tested for ignitable liquids. Subsequent testing demonstrated the presence of light petroleum distillate, an ignitable substance, on Milton's shoes and clothing as well as on Bass's shoes. No ignitable liquids were found in the soil from the burned and unburned areas.

Based on these results, Afshar concluded that the fire was incendiary, which he defined as "a fire [ ] deliberately set with the intent for the fire to occur where it should not normally occur." He also determined that the area of origin was within the original burn area. In addition, Afshar concluded that the light petroleum distillate had most likely been poured deliberately on Milton's shoes and clothing as well as on Bass's shoes. Afshar reached this conclusion based on a number of factors: (1) the distillate was not inherent to the items of clothing in which it was discovered; ^[5] (2) it was unlikely that the...