Opinion
G056827
05-22-2020
THE PEOPLE, Plaintiff and Respondent, v. WENDELL PHILLIPS JOHNSON, Defendant and Appellant.
Stephen M. Lathrop, 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, Senior Assistant Attorney General, Arlene A. Sevidal and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16HF1601) OPINION Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed as modified. Stephen M. Lathrop, 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, Senior Assistant Attorney General, Arlene A. Sevidal and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
Wendell Phillips Johnson appeals from a judgment after a jury convicted him of first degree burglary and two counts of receiving stolen property. Johnson argues the following: the trial court erred by admitting his post-Miranda statements; the court erred by instructing the jury with a portion of CALCRIM No. 315, or alternatively, he received ineffective assistance of counsel; the matter must be remanded for the court to exercise its discretion pursuant to Senate Bill No. 1393 (S.B. 1393); and he is entitled to additional credits. Although we agree Johnson is entitled to eight days of additional credits, none of his other claims have merit. We affirm the judgment as modified.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
FACTS
I. Substantive Facts
Eighty-year-old S.L. returned home around 5:00 p.m. As she approached her Newport Beach house, she noticed a black BMW sport utility vehicle (BMW) parked in a fire zone. A female was sitting in the passenger seat. S.L. drove to the front of the BMW, wrote down the license plate number, and parked her car in her garage. She walked out of the garage toward the BMW. As she approached the BMW, Johnson ran from the side of her house where her front door was located carrying a yellow mesh bag—the bag and some of the property in the bag belonged to S.L.
After Johnson got into the BMW's driver's seat, S.L. knocked on the driver's side window and asked him what he was doing. Johnson said, "Fuck off," made an obscene gesture with his middle finger, and drove off at "like 90 miles an hour." After he drove away, S.L. discovered her front door was open.
The next morning, Detective Jennifer Kresge interviewed S.L., who described the perpetrator as a 50-year-old Caucasian male with no facial hair. Kresge showed S.L. a photographic lineup, which included Johnson in the No. 3 position. S.L. pointed to the person in position No. 3 as the person having the most similar facial shape and features, complexion, and nose as the man who burglarized her home. But she was unable to positively identify the man and checked the box stating "'unable to identify a suspect.'"
Later that day, Kresge executed a search warrant at Johnson's residence. The BMW, which was registered to Johnson, was parked outside, and Johnson and his wife, Andrea Vanessa Apodaca, were home. Johnson was wearing S.L.'s grandson's watch. Police officers found S.L.'s jewelry and two laptop computers stolen in other burglaries. When Kresge asked Johnson where he was the previous day, Johnson said he was in Irvine paying his rent at 4:00 p.m. Johnson said he was the only person who drove the BMW the previous day. II. Procedural Facts
At trial, the parties stipulated the two laptop computers were stolen.
An information charged Johnson with first degree burglary (Pen. Code, §§ 459, 460, subd. (a), all further statutory references are to the Penal Code, unless otherwise indicated) (count 1), and two counts of receiving stolen property (§ 496, subd. (a)) (counts 2 and 3). The information alleged he suffered five prior serious and violent felony convictions (§§ 667, subds. (d) & (e)(2)(A), 1170.12, subds. (b) & (c)(2)(A)), three prior serious felony convictions (§ 667, subd. (a)(1)), and one prior prison term (§ 667.5, subd. (b)).
The information charged Apodaca with the same offenses. Her case was the subject of another appeal. (People v. Apodaca (Jan. 30, 2020, G056930) [nonpub. opn.].)
Before trial, as relevant here, the prosecution filed a motion in limine to admit Johnson's statements to Kresge at his home and the police station. After a hearing, which we discuss in more detail below, the court ruled Johnson's statements to Kresge at his home were inadmissible but his statements at the police station were admissible.
At trial, S.L., after refreshing her recollection with the transcript, testified that during her 911 call she described the perpetrator as tall four times. After refreshing S.L.'s recollection with her statement to Kresge, she stated the perpetrator was between six feet two inches and six feet five inches tall, and he did not have any tattoos. S.L. identified Johnson as the man who burglarized her home. When the prosecutor asked her whether she identified Johnson as the person she described at the preliminary hearing, she said, "Yes." The prosecutor asked her whether she "remember[ed] telling the court that you were 100 percent sure [Johnson]" was the person she described, and she said, "Yes."
On cross-examination, Johnson's counsel questioned S.L. about her description of Johnson, including the angle from which she saw him (the side), the photographic lineup, and her preliminary hearing testimony. As to her testimony, after refreshing her recollection with the transcript, S.L. agreed that when she identified Johnson as the perpetrator, she "assumed" it was him based in part on the fact he had been arrested and was wearing an orange jumpsuit.
On redirect examination, the prosecutor showed S.L. a booking photograph, exhibit No. 15, of a man with a tattoo on the left side of his neck. S.L. testified she had never seen the man in the photograph, Eric Brown, and the perpetrator did not have a tattoo on the left side of his neck.
The prosecution offered Kresge's testimony. Kresge testified Johnson is slender, about six feet two inches tall, and does not have any tattoos on his neck. On cross-examination, Kresge stated she received a letter claiming Brown was involved in the burglary but she did not interview him. On redirect examination, Kresge testified she did not interview Brown because he did not match S.L.'s description of the perpetrator. She stated Brown was five feet eight inches tall and weighed 165 pounds, and had a large red tattoo on the left side of his neck.
Johnson offered Brown's testimony. Brown testified he burglarized S.L.'s home and Johnson, who he had known for 10 years, was not involved. Brown explained how they decided to burglarize the home. Apodaca picked him up in the BMW, and he drove to a Newport Beach gated community to look for plants. He liked plants and decided to cut some ferns so he could put them in water to grow. He drove until he saw red ferns and stopped. Brown said instead of pruning, he decided to burglarize the home. He described how he entered the home, took property, and fled, including a confrontation with an elderly woman. He said that while he was in jail, he wrote a letter to the district attorney admitting he committed the burglary to take responsibility for the crime.
On cross-examination, Brown could not recall what he did during the four hours between when Apodaca picked him up and the burglary. He had difficulty remembering details about S.L.'s house. At the time of the burglary, he had a tattoo of a red devil on the left side of his neck and face. Brown admitted he had suffered numerous prior convictions, including two for giving false information to the police. Brown stated that although he lived with Johnson and Apodaca at the time of the burglary, he did not know Johnson had been arrested until five months later. Brown admitted that prior to trial, he and Johnson were housed in the same jail and in the same module.
At Johnson's counsel's request, the trial court instructed the jury with CALCRIM No. 315, "Eyewitness Identification."
The jury convicted Johnson of all counts. At a bifurcated bench trial, the trial court found true the prior conviction and prison allegations.
At the sentencing hearing, the trial court denied Johnson's request to strike one of the strike-qualifying offenses. In doing so, the court reasoned the residential burglary "was a serious criminal episode that resulted in the infliction of lasting psychological injury" on S.L. The court added Johnson "exhibited a callus [sic] disregard for the safety of others" as demonstrated by his profane confrontation with S.L. The court sentenced Johnson to 25 years to life on count 1 and two consecutive five-year terms for the prior serious felony convictions. The court awarded Johnson 671 days of custody credits and 670 days of conduct credits.
DISCUSSION
I. Post-Miranda Statements
Johnson argues the trial court erred by admitting his post-Miranda statements because they were obtained via a two-step interrogation procedure in violation of Missouri v. Seibert (2004) 542 U.S. 600 (Seibert). We disagree. A. Background
In its in limine motion, the prosecution sought to admit Johnson's statements to Kresge at his apartment and the police station concerning where he was the day of the burglary—he, Apodaca, and their daughter were in a black BMW X3 sport utility vehicle in Irvine. At an Evidence Code section 402 hearing, Kresge testified concerning her two interviews of Johnson. She executed a search warrant at Johnson's apartment the day after the burglary. While officers searched the apartment, Kresge, who was alone, interviewed Johnson, who was handcuffed, in the breezeway. She told him that she was detaining him, not arresting him. Johnson said he understood and agreed to speak with her. She questioned him about what he was doing the previous day. During the 10-minute interview, Johnson never indicated he wished to stop speaking with Kresge. Kresge arrested Johnson, and Apodaca, and transported them to the police station. At the police station, Kresge advised Johnson of his Miranda rights. Johnson indicated he understood his rights. She again questioned him about what he was doing the previous day. After about 10 minutes, Johnson said he wanted an attorney, and Kresge stopped the interview.
She also interviewed a handcuffed Apodaca.
The trial court questioned Kresge. The court asked about the interval between the two interviews, and Kresge replied, "It was over an hour." The court asked whether she had been trained in a "form of interrogation . . . referred to as a two-step interrogation[.]" She answered, "I have not." The court asked whether she had received any training in "an interrogative technique of interviewing a suspect first without Miranda and then later with Miranda[.]" She responded, "I have not." The court offered counsel the opportunity to question Kresge further. Johnson's counsel questioned her about her entry into the apartment.
The trial court's tentative ruling was to exclude Johnson's statements during the first interview because he was in custody and not advised of his Miranda rights. The court ruled Johnson's statements during the second interview were admissible. The court reasoned its questions dispelled any concern Seibert was implicated.
At trial, Kresge testified that after the search of Johnson's home, she questioned him. Johnson said that at 4:00 p.m., he was in Irvine paying his rent, but he could not provide the exact location. He claimed he drove home, but when pressed clarified he stopped for food, but he could not provide the exact location. Johnson confirmed he owned the BMW that S.L. identified at her house. He said he was the only person to drive the BMW the day of the burglary. He could not explain why property stolen in the burglary was found in his apartment. When Kresge asked him why his BMW was seen at the scene of the burglary, Johnson shook his head back and forth. When she told him that S.L. wrote down his license plate, he said, "Oh, it was?" B. Law
In Oregon v. Elstad (1985) 470 U.S. 298, 301 (Elstad), police officers went to defendant's home and questioned him about a burglary without first advising him of his Miranda rights. After defendant admitted being present at the burglary, the officers took him to the police station and one hour later advised him of his Miranda rights and obtained a confession. (Id. at pp. 301-302.) The Supreme Court of the United States held that "[t]hough Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made." (Id. at p. 309.) The court reasoned that "[A]bsent deliberately coercive or improper tactics in obtaining the initial statement," the "subsequent administration of Miranda warnings . . . ordinarily should suffice to remove the conditions that precluded admission of the earlier statement." (Id. at p. 314; People v. Williams (2010) 49 Cal.4th 405, 436 [voluntariness determined by whether police officers obtained confessions by physical or psychological coercion].)
The Supreme Court revisited the issue in Seibert, supra, 542 U.S. 600. In that case, police officers questioned defendant about the death of a boy without first advising her of her Miranda rights and she made an incriminating statement. (Id. at pp. 604-605 (plur. opn. of Souter, J.).) After a 20-minute break, an officer advised defendant of her Miranda rights, confronted defendant with her pre-Miranda statements, and obtained more confessions from her. (Id. at p. 605 (plur. opn. of Souter, J.).) Justice Souter's plurality opinion identified the following objective factors to determine whether midstream Miranda warnings were effective: "the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first." (Id. at p. 615 (plur. opn. of Souter, J.).) The plurality opinion concluded the facts did not reasonably support the conclusion the warnings served Miranda's purpose of reducing the risk of admitting coerced confessions. (Id. at p. 617 (plur. opn. of Souter, J.).)
Justice Kennedy wrote a concurring opinion in which he agreed the interrogation technique rendered defendant's statements inadmissible. (Seibert, supra, 542 U.S. at p. 618 (conc. opn. of Kennedy, J.).) Justice Kennedy, however, focused on the interrogating officer's subjective intent, providing the following narrower rule: "If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. Curative measures should be designed to ensure that a reasonable person in the suspect's situation would understand the import and effect of the Miranda warning and of the Miranda waiver." (Id. at p. 622 (conc. opn. of Kennedy, J.), italics added.) Justice Kennedy provided two curative measures. First, "a substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn. [Citation.]" (Ibid.) Second, and "[a]lternatively, an additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient." (Ibid.) Justice Kennedy added Elstad, supra, 470 U.S. 298, governs in cases where there was no evidence police deliberately used the two-step interrogation procedure. (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.).) Justice Kennedy's concurring opinion represents the Seibert holding because it is the narrowest grounds with which the majority of the court would agree. (People v. Camino (2010) 188 Cal.App.4th 1359, 1370, fn. omitted (Camino).)
Courts have commented though Justice Kennedy did not articulate how trial courts should determine deliberateness. (Camino, supra, 188 Cal.App.4th at p. 1370; United States v. Williams (9th Cir. 2006) 435 F.3d 1148, 1158 (Williams).) California appellate courts have approved the Ninth Circuit's interpretation of Seibert in Williams, supra, 435 F.3d 1148. (Camino, supra, 188 Cal.App.4th at p. 1370, fn. 5 [cataloging cases].) Thus, "'[C]ourts should consider whether objective evidence and any available subjective evidence, such as an officer's testimony, support an inference that the two-step interrogation procedure was used to undermine the Miranda warning.' [Citation.]" (Camino, supra, 188 Cal.App.4th at p. 1370; Williams, supra, 435 F.3d at pp. 1157-1158, 1160 [did officer deliberately undermine and obscure Miranda's meaning and effect?]; see People v. Krebs (2019) 8 Cal.5th 265, 309 (Krebs) [declining to address issue because same under either plurality or concurring approach].)
"'In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant's rights under Miranda . . . , the scope of our review is well established. "We must accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained."' [Citation.] '"Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained [citation], we '"give great weight to the considered conclusions" of a lower court that has previously reviewed the same evidence.'"' [Citation.]" (Camino, supra, 188 Cal.App.4th at pp. 1370-1371.) C. Analysis
Here, based on both Justice Kennedy's test and the plurality's factors, we conclude Kresge did not engage in a deliberate two-step strategy to undermine Miranda's protections. 1. Subjective Evidence of Intent
With respect to Justice Kennedy's test and its curative measures, we conclude substantial evidence supported the trial court's conclusion Kresge did not deliberately intend to use a two-step interrogation procedure. In response to the trial court's questions, Kresge testified she had not received any training in a two-step interrogation procedure. "Subjective evidence of the investigators' intent, if credible, will of course be persuasive, and often decisive." (United States v. Moore (2d Cir. 2012) 670 F.3d 222, 230, fn. 3.) Johnson complains Kresge "was not asked" whether she used the procedure in this case. True, the court did not ask that. But the court gave Johnson's counsel an opportunity to question Kresge further on this point, and counsel instead focused on the officers' entry into the apartment.
In any event, one of the curative measures Justice Kennedy provided was present here. There was "a substantial break in time and circumstances between the prewarning statement and the Miranda warning." (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.).) There was a break in time of over one hour between the first interview, which was at Johnson's apartment, and the second interview, which was at the police station. The break in time allowed Johnson to distinguish the first interrogation from the second and appreciate the fact the interrogation took a new turn. (Ibid.)
As to the second curative measure, we note Justice Kennedy indicated it was an alternative to the first, and not a required measure, i.e., it was not a two-pronged test. It is unclear whether Kresge provided Johnson with "an additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient." (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.).) Our record does not include a transcript of the short, 10-minute interview. Additionally, Johnson's counsel did not question Kresge on this point.
Nevertheless, we are confident the break in time and change in setting ensured Johnson "underst[ood] the import and effect of the Miranda warning and of the Miranda waiver." (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.).) About 10 minutes into the second interview, Johnson invoked his right to counsel. Kresge's testimony she had not been trained in a two-step procedure and the curative measure—the break in time and change in location—was subjective evidence Kresge did not intend to undermine Miranda's protections. 2. Objective Evidence of Intent
Here, again, our record does not include a transcript of the first interview at the apartment. Kresge testified she questioned Johnson in the breezeway for about 10 minutes. Based on the record before us, Kresge's questioning of Johnson was "'brief and spare.'" (Krebs, supra, 8 Cal.5th at p. 310 [no extended questioning prewarning]; United States v. Williams (2d Cir. 2012) 681 F.3d 35, 44 [no deliberate intent to undermine Miranda if initial questioning "'brief and spare'"].)
It is unclear whether there was an overlap of content. (Seibert, supra, 542 U.S. at p. 621 (conc. opn. of Kennedy, J.) [overlapping content demonstrates "the temptations for abuse inherent in the two-step technique"].) Prewarning, Kresge questioned Johnson concerning where he was the day of the burglary. The record does not include evidence of his response. Postwarning, Kresge questioned Johnson concerning where he was the day of the burglary. The evidence establishes Johnson responded he was driving the BMW, an incriminating statement. Without knowing what Johnson said during the prewarning conversation, it is difficult to determine whether there was an overlap.
As we explain above, there was a substantial break in time and change in setting. (Camino, supra, 188 Cal.App.4th at pp. 1370, 1376 [courts consider proximity in time and setting of interrogations as objective evidence of intent].) The second interview was more than an hour after the first interview, and in a different location.
There was also a continuity of police personnel. (Krebs, supra, 8 Cal.5th at p. 310 [continuity of police personnel satisfied where same person questioned defendant over single day]; Camino, supra, 188 Cal.App.4th at p. 1376 [continuity of police personnel objective evidence of intent because officer able to compel defendant to repeat confession].) Kresge questioned Johnson both prewarning and postwarning.
Finally, there was no evidence the interrogating officer treated the second interview as a continuation of the first interview. (Seibert, supra, 542 U.S. at p. 621 (conc. opn. of Kennedy, J.) [interrogating officer "relied on the defendant's prewarning statement to obtain the postwarning statement used against her at trial"].) Because we do not have a transcript of the interviews, it is unclear whether Kresge relied on Johnson's statement during the first interview to obtain his statement during the second interview. Johnson's counsel had an opportunity to inquire on this topic but did not do so.
Nevertheless, although there was a continuity of police personnel, we conclude the brief questioning and break in time and change in location establish Kresge did not employ a deliberate two-step procedure. Both the subjective and objective factors establish Kresge did not deliberately undermine Miranda's protections.
Additionally, because substantial evidence supported the trial court's conclusion Kresge did not deliberately intend to use a two-step procedure, we look to Elstad, supra, 470 U.S. 298, to determine whether Johnson's statements were voluntary. There was no evidence Kresge obtained Johnson's statements by physical or psychological coercion, a point Johnson does not dispute. The court did not err by ruling Johnson's post-Miranda statements admissible. II. CALCRIM No. 315
Johnson contends the trial court erred by instructing the jury with a portion of CALCRIM No. 315. The Attorney General counters Johnson forfeited the claim, there was no error, and any error was harmless. We agree with the Attorney General.
Johnson alternatively claims he received ineffective assistance of counsel. Because we address the merits, we need not discuss this claim.
The trial court instructed the jury with CALCRIM No. 315, as relevant here, as follows: "You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. [¶] . . . [¶] How certain was the witness when she made an identification? [¶] . . . [¶] The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find . . . the defendant not guilty."
The Attorney General argues Johnson forfeited this claim because he did not request a modification. We agree. "If defendant had wanted the court to modify the instruction, he should have requested it. The trial court has no sua sponte duty to do so. [Citations.]" (People v. Sánchez (2016) 63 Cal.4th 411, 461 (Sánchez).) Johnson did not request a modification, and thus his claim is forfeited. Additionally, it is unclear whether Johnson would want the modification because the case involved both uncertain and certain identifications. (Id. at. p. 462.)
Assuming his claim is preserved, there was no error. Our Supreme Court has repeatedly approved the use of certainty as a factor in evaluating eyewitness identifications. (Sánchez, supra, 63 Cal.4th at p. 461.) Until the Supreme Court overrules its prior precedent, we are bound by its decisions, as was the trial court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The Sánchez court stated any reexamination of its prior precedents "should await a case involving only certain identifications." In that case, like here, there were multiple identifications some certain and some uncertain. In those situations, the court mused it was unclear whether the certainty factor was incorrect. (Sánchez, supra, 63 Cal.4th at p. 462.) In light of Sánchez, Johnson has not demonstrated any objection to the certainty factor would have been successful.
In Sánchez, supra, 63 Cal.4th at page 495, Justice Liu concurred the claim had been forfeited and any error was harmless but did not join in the majority's approval of the certainty factor in CALJIC No. 2.92, CALCRIM No. 315's predecessor. (Sánchez, supra, 63 Cal.4th at p. 495 (conc. opn. of Liu, J.).) Justice Liu opined the court should reconsider the propriety of the certainty factor. (Ibid.) The California Supreme Court is doing that now. (People v. Lemcke, review granted Oct. 10, 2018, S250108.)
Assuming there was error, Johnson was not prejudiced because it was not reasonably probable Johnson would have obtained a more favorable result had the trial court deleted the certainty factor. (Sánchez, supra, 63 Cal.4th at p. 463.) Like in Sánchez, the instruction did not suggest certainty equals accuracy but only that the jury could consider certainty. That could only serve to benefit Johnson when it came to the uncertain identifications, and harm him when it came to the certain identifications. (Sánchez, supra, 63 Cal.4th at p. 462.) Additionally, the evidence of Johnson's guilt on count 1 was overwhelming. S.L. identified the BMW registered to Johnson outside her home, and officers observed the BMW when they executed the search warrant. Officers recovered S.L.'s and her grandson's property in Johnson's apartment. Although S.L. could not definitively identify Johnson during the photographic lineup, she said his photograph most closely resembled him. Finally, her description matched Johnson, and excluded Brown, whose claim he went on a botanical burglary was completely unbelievable. "Indeed, we would find giving the instruction harmless beyond a reasonable doubt." (Sánchez, supra, 63 Cal.4th at p. 463.) III. Senate Bill No. 1393
Johnson asserts S.B. 1393's amendments of sections 667, subdivision (a), and 1385, subdivision (b), apply retroactively and we must remand the matter for the trial court to exercise its discretion pursuant to these provisions. The Attorney General agrees that because this case was not final before S.B. 1393's effective date, the law applies retroactively to Johnson. The Attorney General adds, however, remand is unnecessary because the trial court's comments at sentencing made it clear it would not strike the five-year term on the prior serious felony convictions. Again, we agree with the Attorney General.
Under the versions of sections 667, subdivision (a), and 1385, subdivision (b), effective until December 31, 2018, courts were required to impose a five-year consecutive term for "[a]ny person convicted of a serious felony who previously has been convicted of a serious felony" (§ 667, subd. (a)), and the court had no discretion "to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under [s]ection 667" (§ 1385, subd. (b)). On September 30, 2018, the Governor signed S.B. 1393 which, effective January 1, 2019, amended sections 667, subdivision (a), and 1385, subdivision (b), to allow a court to exercise its discretion to strike or dismiss for sentencing purposes a prior serious felony conviction. (Stats. 2018, ch. 1013, §§ 1-2.) S.B. 1393 applies retroactively. (In re Estrada (1965) 63 Cal.2d 740, 745; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308; People v. Garcia (2018) 28 Cal.App.5th 961, 971-973.)
"We begin by discussing the general standard for assessing when a remand is required for a trial court to exercise sentencing discretion. '[W]hen the record shows . . . the trial court proceeded with sentencing on the . . . assumption it lacked discretion, remand is necessary so . . . the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to "sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court," and a court that is unaware of its discretionary authority cannot exercise its informed discretion.' [Citation.] But if '"the record shows . . . the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required."' [Citation.]" (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.)
People v. Jones (2019) 32 Cal.App.5th 267 (Jones), is instructive. In that case, the court declined to remand the matter to allow the trial court to exercise its discretion under S.B. 1393 because the "trial court made clear its intention to impose the most stringent sentence it could justifiably impose." (Jones, supra, 32 Cal.App.5th at pp. 274-275.) In Jones, the trial court stated, "there was no doubt the verdict was correct, defendant's actions were premeditated, dangerous, senseless and absurd, he attempted to kill [the victim] only a few months after being released from prison where he had been for 10 years, and the court took 'great satisfaction' in imposing the 'very lengthy sentence' it imposed." (Id. at p. 275.) The Jones court explained a trial court "need not have specifically stated at sentencing it would not strike the enhancement if it had the discretion to do so"; instead, it is sufficient to "review the trial court's statements and sentencing decisions to infer what its intent would have been. [Citation.]" (Id. at p. 273.)
Here, we conclude the trial court would not have exercised its discretion to strike the section 667, subdivision (a)(1), enhancements. Like in Jones, the trial court here firmly expressed its view Johnson presents a danger to the public and the court's intent was to guarantee Johnson could not hurt anyone else. The court opined Johnson exhibited a callous disregard for others and inflicted lasting psychological injury on S.L. Contrary to Johnson's claim, based on the trial court's statements, we are convinced beyond all doubt it would not have exercised its discretion even if it believed it could do so. The court's comments indicate it intended to impose the maximum punishment. Remand is unnecessary. IV. Credits
Johnson argues he was entitled to additional credits. The Attorney General did not address the claim. We agree with Johnson.
"A defendant is entitled to actual custody credit for 'all days of custody' in county jail and residential treatment facilities, including partial days. [Citations.] Calculation of custody credit begins on the day of arrest and continues through the day of sentencing. [Citation.]" (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48.) Here, officers arrested Johnson on November 9, 2016, and the trial court sentenced him on September 14, 2018, which is 675 days.
Johnson incorrectly states the court sentenced him on August 14, 2018. But his calculation, 675 days, is correct.
A defendant is also entitled to conduct credits under section 4019. Conduct credits accrue at the rate of two days for every two days served. (§ 4019, subds. (c), (d), (f); People v. Chilelli (2014) 225 Cal.App.4th 581, 587.) Thus, Johnson was entitled to 674 days of conduct credits. Johnson was entitled to total credits of 1,349 days.
DISPOSITION
Johnson is awarded 675 days of actual credits and 674 days of conduct credits for a total of 1,349 days of total credit. The clerk of the superior court is directed to prepare a new abstract of judgment reflecting the new award of credits, and to forward the amended abstract of judgment to the Department of Corrections, Division of Adult Operations. We affirm the judgment as modified.
O'LEARY, P. J. WE CONCUR: FYBEL, J. IKOLA, J.