People v. Johnson CA2/3

Filed 4/27/21 P. v. Johnson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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, B300636
Plaintiff and Respondent, (Los Angeles County
Super. Ct.
v. Nos. BA393960-01,
BA393960-02)
CECIL JOHNSON et al.,
ORDER MODIFYING
Defendants and OPINION
Appellants. [NO CHANGE IN
JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on March 30,
2021 be modified as follows:
1. On page 4, in the second full paragraph, the sentence
commencing with: “The defendant bears the burden of proving”
is deleted and replaced with the following: “The prosecution
bears the burden of proving the defendant was charged with a
violent felony and one of the prior dismissals was due solely to
excusable neglect. (Miller v. Superior Court (2002) 101
Cal.App.4th 728, 747 (Miller).) “Where a criminal defendant
raises official misconduct as a defense, he or she bears the burden
of proof on this issue.” (Id. at p. 748.)
2. On page 8, in the first full paragraph, the second
sentence “By November 2011, Benavides knew of a specific
building where Gregory may be residing, but not the exact
address” is deleted and the following sentences are inserted in its
place: “In July 2011, Benavides had an idea of Gregory’s
whereabouts, but he did not know specifically where she was. In
November 2011, Benavides met with one of Gregory’s family
members in Los Angeles and had telephone calls with Gregory’s
mother, who would not reveal Gregory’s address.”
3. On page 8, in the third full paragraph, after the first
sentence commencing with “On January 31, 2012,” add: “Prior to
that date, Benavides received information from Gregory’s family
as to where she might be. He was making arrangements to
confirm the information to serve her with a subpoena. Benavides
had the location of the building, but not the exact address, which
was quite some distance away.”
4. On page 10, in line four, delete “lying to” and replace
with “falsely inform[ing]” in quotation marks.
5. On page 11, delete the first full paragraph commencing
with “Handicapped by defendants” and ending with “which the
record is silent’ ”].)
6. On page 11, the first sentence of the second full
paragraph is modified to read: “Third, we are unpersuaded by
Bailey’s assertion a dismissal for excusable neglect requires both
the prosecutor and the police to have acted with due diligence.”
7. On page 12, line 7, following the sentence ending with,
“and the prosecutor in making its findings,” insert: “Following
defendant’s reasoning, whenever the police act with inexcusable
2
neglect or in bad faith in this type of situation, the prosecutor
must have also acted with inexcusable neglect or in bad faith.”
There is no change in the judgment.
The petition for rehearing is denied.
NOT TO BE PUBLISHED.
____________________________________________________________
SALTER, J.* EDMON, P. J. LAVIN, J.
*Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
3
Filed 3/30/21 P. v. Johnson CA2/3 (unmodified opinion)
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
8.1115.6
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B300636
Plaintiff and Respondent, (Los Angeles County
Super. Ct.
v. Nos. BA393960-01,
BA393960-02)
CECIL JOHNSON et al.,
Defendants and Appellants.
APPEAL from judgments of the Superior Court of Los
Angeles County, Mary Lou Villar de Longoria and Frederick N.
Wapner, Judges. Affirmed in part, reversed in part, and
remanded with directions.
Spolin Law, Aaron Spolin and Caitlin Dukes for Defendant
and Appellant Cecil Johnson.
Shannon Chase, under appointment by the Court of
Appeal, for Defendant and Appellant Devonte Lamar Bailey.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Michael Katz, Deputy
Attorneys General, for Plaintiff and Respondent.
——————————
A jury convicted defendants Cecil Johnson and Devonte
Lamar Bailey of gang-related, first degree murder and found true
firearm-use and gang allegations. On appeal, defendants contend
the trial court erred in finding one of two earlier dismissals was
justified by excusable neglect, thus entitling the prosecutor to
refile the case.
Johnson separately contends his conviction was not
supported by substantial evidence and the trial court erred by
ruling the preliminary hearing testimony of two witnesses was
admissible at trial because they were unavailable. Bailey also
contends his trial counsel provided ineffective assistance,
Proposition 57 violates equal protection, and he was not
permitted a Franklin hearing. (See People v. Franklin (2016) 63
Cal.4th 261.)
We affirm the judgment of convictions. However, we
reverse the sentencing and remand the matter to the trial court
to correct certain sentencing errors and provide Bailey with a
Franklin hearing.
BACKGROUND
Defendants and Leonides Yama were members of the East
Coast Crips gang. Yama’s gang moniker was Ray Dawg. On
April 5, 2010, Ray Dawg was gunned down on the street. Shortly
thereafter, Taishawn Wallace was shot and killed while driving
his white truck in gang territory. The truck crashed into another
vehicle and a building. Wallace’s murder appeared to have been
committed in retaliation for Ray Dawg’s murder, even though
Wallace was not a gang member.
2
There were no percipient witnesses. But defendants were
implicated in Wallace’s murder by Johnson’s friend, Dominque
Gregory, and Bailey’s cousin, Eric Atkins. Gregory told the police
that Johnson possessed a handgun, and shell casings found by
the police near the location of Wallace’s killing matched his
weapon. Atkins told the police that Bailey admitted shooting a
man in a white truck before it crashed and then said Johnson
was in the backseat acting as a lookout.
The police relocated Gregory out of state. She appeared at
the preliminary hearing and testified that Johnson admitted
shooting someone because “they killed Ray Dawg.” Although she
later returned to Los Angeles, she could not be found to testify at
trial, so her preliminary hearing testimony was read into the
record.
Atkins testified at the preliminary hearing and recanted
the statements he had made to the police. The police initially
could not find him for trial, so his preliminary hearing testimony
was admitted into evidence. When Atkins was later found, he
testified at trial and again recanted the statements he made to
the police.
DISCUSSION
I. Defendants’ Penal Code1 Section 1387 Motion to
Dismiss
This case involves two dismissals due to the prosecutor’s
inability to proceed to trial. When the case was filed a third time,
defendants moved to dismiss it as barred by section 1387’s two-
dismissal rule. The prosecutor opposed the motion, arguing that
1 Allfurther statutory references are to the Penal Code
unless otherwise indicated.
3
the section 1387.1 exception applied. The court agreed with the
prosecutor and denied the motion on the ground that one
dismissal was due to excusable neglect. Defendants challenge
the trial court’s ruling.
A. Applicable Law
Section 1387, subdivision (a) provides that a second
dismissal of a felony action is a bar to a third prosecution for the
same offense. Section 1387.1 creates an exception to the two-
dismissal rule, and permits a third filing, where the action
involves a “violent felony” as defined in section 667.5, and where
either of the prior dismissals was “due solely to excusable
neglect” and the conduct of the prosecution did not “amount[ ] to
bad faith.”2 (§1387.1, subd. (a).) The exception was “designed to
save serious-felony prosecutions from improvident loss.” (People
v. Woods (1993) 12 Cal.App.4th 1139, 1157.)
“ ‘[E]xcusable neglect’ includes, but is not limited to, error
on the part of the court, prosecution, law enforcement agency, or
witnesses.” (§ 1387.1, subd. (b).) Even if there is excusable
neglect on the part of one of these entities, in no case is a third
filing permitted when the prosecution’s conduct amounts to bad
faith. (§ 1387.1, subd. (a); Tapp v. Superior Court (1989) 216
Cal.App.3d 1030, 1035.) The defendant bears the burden of
proving bad faith and rebutting the presumption the prosecution
properly refiled charges under section 1387.1. (Miller v. Superior
Court (2002) 101 Cal.App.4th 728, 747–748 (Miller).)
2 Section 667.5, subdivision (c)(1) lists murder as a “ ‘violent
felony.’ ”
4
B. Standard of Review
The parties agree that a court’s decision to grant or deny a
motion to dismiss under section 1387 is reviewed for abuse of
discretion. (See, e.g., Miller, supra, 101 Cal.App.4th at pp. 740–
741 [standard of review is abuse of discretion; “reviewing court
cannot disturb an exercise of discretion unless it is ‘arbitrary,
capricious, or patently absurd’ ”]; People v. Massey (2000) 79
Cal.App.4th 204, 211 [trial court’s decision “should be afforded
great weight unless clear abuse of discretion is demonstrated”];
People v. Woods, supra, 12 Cal.App.4th at p. 1149 [“application of
section 1387.1 is a discretionary decision for the judge which
should be afforded great weight . . . . We do not exercise
‘ “independent review” ’ ”].) Further, courts recognize that under
1387.1, “ ‘[u]nless inexcusable neglect is clear, the policy favoring
trial on the merits prevails.’ ” (Massey, at p. 211; see Woods, at
p. 1154].)
But the California Supreme Court’s decision in People v.
Cromer (2001) 24 Cal.4th 889 lends considerable support to the
idea that appellate courts should utilize the independent
standard of review where a trial court has applied the 1387.1
exception to a 1387 motion to dismiss based on the unavailability
of a witness.
Even though Cromer was considering the appropriate
standard of review for a trial court’s determination of due
diligence under Evidence Code section 1291, it concluded “that
appellate courts should independently review a trial court’s
determination that the prosecution’s failed efforts to locate an
absent witness are sufficient to justify an exception to the
defendant’s constitutionally guaranteed right of confrontation at
trial. . . . [citation] . . . ‘Independent review is . . . necessary if
5
appellate courts are to maintain control of, and to clarify, the
legal principles.’ [Citation.] [¶] Our conclusion that a trial
court’s due diligence determination is subject to independent
review comports with this court’s usual practice for review of
mixed question determinations affecting constitutional rights.”
(Cromer, at p. 901, fn. omitted.) Cromer explained that the trial
court’s resolution of any factual disputes is reviewed under a
deferential, substantial evidence standard (id. at pp. 894, 902;
accord, People v. Seijas (2005) 36 Cal.4th 291, 304), but “once a
trial court through its findings has determined the historical
facts, it is no better situated than an appellate court to make the
predominantly legal determination that those facts do or do not
demonstrate prosecutorial due diligence in locating the absent
witness.” (Cromer, at p. 902.)
To be sure, Cromer emphasized that the issue before it
involved the constitutional right to confront witnesses, and many
of the independent review cases it cited also concerned questions
of constitutional significance. But the Supreme Court has not
limited independent review to mixed law and fact cases
concerning constitutional rights. It has applied that standard of
review to “a diverse array of mixed law and fact questions,”
including those that are ‘ “predominantly legal.” ’ ” (People v.
Ault (2004) 33 Cal.4th 1250, 1264, fn. 8.)
We conclude therefrom that in this case the sufficiency of
the prosecutor’s unsuccessful efforts to bring Gregory to court is a
mixed question of law and fact. The facts are what those efforts
entailed; the legal issue is whether the failure to bring her to
court was excusable neglect. The Cromer and Ault reasoning
supports the application of the independent standard of review to
the court’s ruling in this case and in all cases in which a trial
6
court determines that the prosecutor’s failure to secure the
presence of a witness for trial was due to “excusable neglect”
within the meaning of section 1387.1. (See People v. Ault, supra,33 Cal.4th at p. 1267; People v. Cromer, supra, 24 Cal.4th at
p. 901; Ornelas v. United States (1996) 517 U.S. 690, 697.) Given
Cromer dealt with the substantially similar issue of whether the
prosecutor exercised reasonable diligence to bring an absent
witness to court, which is subject to independent review, applying
the more deferential abuse of discretion standard here would
seem anomalous. (See People v. Massey, supra, 79 Cal.App.4th at
p. 211.)
C. Evidentiary Hearing on the Motion to Dismiss
The case against defendants was initially filed in April
2010. That September, Detective Julio Benavides helped relocate
witness Gregory to a new residence 1,500 miles away. He knew
her telephone number and they kept in touch. Gregory testified
at the preliminary hearing on October 19, 2010.
However, around April 2011, Benavides lost contact with
Gregory. Her telephone number was disconnected, and his
attempts to reach her through family members were
unsuccessful.
On the June 22, 2011 trial date, the assigned deputy
district attorney requested a continuance because she was
beginning another trial. The felony master calendar court agreed
to trail this case until July 5, 2011. On that date, the prosecutor
asked for another continuance, acknowledging she was still
seeking a gang expert. The court agreed to trail the case to
July 6, 2011, when the prosecutor answered ready for trial, and
the case was transferred to a trial court. The prosecutor
informed the trial court she needed to make travel arrangements
7
for a custodian of telephone records and would eventually obtain
a gang expert. The prosecutor suggested that the trial could
commence and, after the prosecution witnesses had testified, the
court could grant a brief continuance for the custodian of record’s
flight to arrive. The court declined, and the prosecutor
announced she was unable to proceed without the custodian of
records. The case was dismissed and immediately refiled. A
preliminary hearing was held under Proposition 115, and a trial
date was set for January 31, 2012.
In the meantime, Benavides, with the assistance of
Detective Richard Arciniega, continued to try to reach Gregory by
telephone and through her family members in Los Angeles. By
November 2011, Benavides knew of a specific building where
Gregory may be residing, but not an exact address.
On January 12, 2012, subpoenas were faxed directly to
Benavides to be served on Gregory. Starting around January 16,
2012, the prosecutor began calling Benavides weekly, who said he
was in contact with Gregory.
On January 31, 2012, the trial was continued to
February 15, 2012, because the prosecutor was engaged in
another trial.
Around February 13, 2012, Benavides arranged to travel
out of state to subpoena Gregory. He did not make flight
reservations, because he did not have confirmation that the trial
would proceed.
On February 14, 2012, the prosecutor again moved for a
continuance because she was to begin the trial of a codefendant
in the earlier case. Her request was denied, as was her request
to her supervisor for the case to be reassigned. That day, the
prosecutor learned Benavides had lost contact with Gregory, and
8
he no longer knew where she was living. From his prior
assurances, the prosecutor understood Benavides had been in
contact with Gregory since October 2010. On February 15, 2012,
the prosecutor announced she was unable to proceed, because
Gregory could not be located. The case was dismissed and filed a
third time.
D. Court’s Findings
The court denied the defense motion to dismiss, finding the
section 1387.1 exception applied. The court explained the first
dismissal resulted from inexcusable neglect. The prosecutor
failed to have witnesses available or to take steps to secure
witnesses for trial.
The court found the second dismissal was due to excusable
neglect. The prosecutor had subpoenas for Gregory sent to
Benavides well in advance of the second trial date and was told
by him that he was in contact with Gregory. The prosecutor did
not learn that Gregory’s whereabouts were unknown until the
eve of trial. The court also found the prosecutor reasonably relied
on Benavides to maintain contact with Gregory, notwithstanding
the fact she could have done more to ascertain Gregory’s
availability.
E. Denial of the Section 1387 Motion to Dismiss
Was Not Error
Defendants specifically attack the findings as not
supported by substantial evidence. Bailey expands upon this
claim. He argues the lower court erroneously failed to consider
both the detectives’ and the prosecutor’s conduct in making its
findings (citing Miller, supra, 101 Cal.App.4th at p. 741), focusing
instead solely on the prosecutor’s conduct, which he argues was
in bad faith. Mindful, perhaps, that this court cannot make
9
findings of fact, Bailey suggests as an alternative to reversal, that
we either remand for the lower court to “reassess the [second]
dismissal” or read into the court’s express findings the implied
finding Benavides acted with inexcusable neglect by “lying” to the
prosecutor.
Defendants’ arguments fail for three reasons. First, a
review of the record shows neither Bailey nor Johnson objected to
the lower court’s failure to make express findings whether
Benavides acted with excusable neglect or requested such
findings. (See People v. Stowell (2003) 31 Cal.4th 1107, 1114
[“with certain exceptions, an appellate court will not consider
claims of error that could have been—but were not—raised in the
trial court”]; People v. Peel (1993) 17 Cal.App.4th 594, 600
[defendant who fails to request findings, or fails to object to
failure to make findings, forfeits right to raise issue for first time
on appeal]; People v Scott (1994) 9 Cal.4th 331, 352–353 [failure
to object denies trial court opportunity to correct alleged
sentencing error].)
Second, the lack of such findings is likely due to the fact
defendants were claiming the prosecutor, rather than the
detectives, were acting with inexcusable neglect or in bad faith.
Defendants’ written section 1387 motion is not part of the record
on appeal. In the prosecutor’s opposition she describes the efforts
of Benavides and Arciniega in attempting to locate Gregory.
However, she argues the “negligent omission leading to the
second dismissal was the failure of the People in relying upon the
Investigating Officers to stay in contact with . . . Gregory before
[the second trial date].” During argument on the motion to
dismiss, Bailey’s counsel maintained, “the crux of the court’s
decision” is the issue of bad faith, arguing the prosecutor
10
“turn[ed] a blind eye to the actions of [the detectives].” Johnson’s
counsel argued the prosecutor acted in bad faith in seeking the
first dismissal by blaming it on the inability to secure the
attendance of less important witnesses, when she actually knew
Gregory, a key witness, could not be found.
Handicapped by defendants’ failure to include their
dismissal motions in the record, we can only assume the lower
court’s express findings addressed all the issues raised in their
motions. (See Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032,
1039 [appellant’s burden to present a complete record on appeal];
Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [“ ‘A
judgment or order of the lower court is presumed correct’ ” and
“ ‘[a]ll intendments and presumptions are indulged to support it
on matters as to which the record is silent’ ”].)
Third, Bailey’s assertion a dismissal for excusable neglect
requires both the prosecutor and the police to have acted with
due diligence is a misstatement of the law. For support, Bailey
relies on a quote originating in People v. Massey, supra, 79
Cal.App.4th at page 209, in which a magistrate mistakenly
denied the prosecution’s motion under section 1387.1 by
requiring proof of actual negligence or error in failing to secure
witnesses’ attendance at trial. In concluding the magistrate had
construed the term excusable neglect too narrowly, our colleagues
in Division Six, after noting the evidence was undisputed that the
detective and district attorney investigator made numerous
attempts to locate and/or serve witnesses with subpoenas, agreed
with the People’s argument that “ ‘if the police and prosecution
had done all that could be reasonably expected to locate their
witnesses and get them to court, and yet not succeeded, then, so
far as concerns the construction of section 1387.1, their failure
11
should still be labeled excusable neglect, despite the absence of
any actual neglect, as commonly understood to include an
element of carelessness or lack of sufficient regard or effort.’ ”
(Massey, at p. 211.) It is this sentence that defendants seize
upon, divorced from its context, to argue the lower court was
obligated by law to consider the conduct of both the detectives
and the prosecutor in making its findings. However, that view is
contrary to a plain reading of section 1387.1, subdivision (b)
which, as discussed, states in the disjunctive, as “used in this
section, ‘excusable neglect’ includes, but is not limited to, error on
the part of the court, prosecution, law enforcement agency, or
witnesses.” Accordingly, we reject Bailey’s interpretation of
section 1387.1 and decline his invitation to consider the lower
court’s express findings as providing implicit findings of
Benavides’s inexcusable neglect. Instead, we turn to the merits
of defendants’ claim and the subject of the court’s findings—
whether the prosecutor’s actions were inexcusable neglect or bad
faith.
In deciding whether the prosecutor’s neglect was
excusable, we look to (1) the nature of the mistake or neglect;
and (2) whether the prosecutor was otherwise diligent. (People v.
Woods, supra, 12 Cal.App.4th at p. 1149.) The nature of the
neglect here was the prosecutor’s reliance on Benavides’s
assurances he had been in contact with Gregory to subpoena her
for the second trial date. Upon our independent review, we
agree with the lower court that the prosecutor’s reliance was
reasonable. The prosecutor was aware Benavides had helped
relocate Gregory out of state and was in contact with her before
and after the preliminary hearing. Benavides knew Gregory’s
new address and telephone number. The detective also knew the
12
trial dates for this case. While engaged in other trials and
preparing for this one, it was reasonable for the prosecutor to
assume the detective had maintained contact with one of her key
witnesses, whom he had previously assisted. Moreover, because
Gregory came to court for the preliminary hearing, the
prosecutor had no reason to believe she would not also testify at
trial, having not heard otherwise from Benavides.
The prosecutor was otherwise diligent. On January 12,
2012, before the scheduled trial date of January 31, 2012, the
prosecutor faxed subpoenas for Gregory to the detectives but did
not obtain a receipt. This was not her usual practice, but she
was apparently following the detectives’ directive for
subpoenaing this particular witness. The prosecutor also called
Benavides weekly and was told he was in contact with Gregory.
Contrary to Bailey’s argument, finding the prosecutor’s neglect
was excusable was not contingent upon finding that Benavides
repeatedly lied. Rather the issue was whether her acceptance of
his representations under the circumstances was reasonable.
We conclude it was.
Defendants failed to demonstrate the prosecutor’s conduct
amounted to bad faith. While the prosecutor mistakenly relied
exclusively on the detective’s assurances of Gregory’s availability,
nothing in the record suggests the prosecutor acted with the
purpose or intent to cause harm to defendants, or with a
conscious disregard of their welfare, with full knowledge of the
negative consequences of her actions. (Miller, supra, 101
Cal.App.4th at p. 744.) True, the pressures of being assigned and
having to prepare for more than one violent felony trial may have
contributed to the prosecutor’s neglect. But there was no hint of
13
prosecutorial harassment or an intentional mishandling of the
process to annoy or vex defendants. (Id. at pp. 744–745.)
The motion to dismiss was properly denied.
II. The Admissibility of the Preliminary Hearing
Testimony of Gregory and Atkins
Before trial commenced, the prosecutor moved to admit
Gregory’s and Atkins’ preliminary hearing testimony on the
ground that they were unavailable because they could not be
located. Defendants objected, and Johnson requested a due
diligence evidentiary hearing. Following the hearing, the trial
court ruled the prosecution had not exercised due diligence and
denied the motion as to both witnesses. The court found serving
Gregory with a subpoena on May 11, 2012, and attempting to
follow-up with telephone calls was insufficient. The court also
found that the prosecution failed to take immediate steps after
the October 19, 2010 preliminary hearing to ensure Atkins’s
presence at trial and lacked initiative in pursuing obvious leads
after starting to look for him on April 19, 2012.
During jury selection, the prosecutor again sought to admit
the preliminary hearing testimony. Over defendants’ objections,
the trial court held a second due diligence evidentiary hearing.
Prosecution witnesses testified concerning efforts to locate
Gregory and Atkins since the June 28, 2012 ruling. At the
conclusion of the hearing, the court found their efforts
demonstrated reasonable diligence and permitted the
preliminary hearing testimony of Gregory and Atkins to be used
at trial.
Johnson contends this ruling violated his constitutional
right to confront witnesses against him. (See U.S. Const. 6th
Amend. [“In all criminal prosecutions, the accused shall enjoy the
14
right . . . to be confronted with the witnesses against him”];
Crawford v. Washington (2004) 541 U.S. 36, 53–54 [confrontation
clause bars “admission of testimonial statements of a witness
who did not appear at trial unless he was unavailable to testify,
and the defendant had had a prior opportunity for cross-
examination”].) Specifically, Johnson contends the prosecution
failed to exercise reasonable diligence in attempting to secure
Gregory’s and Atkins’s presence at trial.
A. Applicable Law
Evidence Code section 1291, subdivision (a)(2), allows the
use of former testimony if the witness is unavailable and the
party against whom the former testimony is offered was a party
to the proceeding in which the former testimony was given and
had the right to confront and cross-examine the now-absent
witness “with an interest and motive similar to that which he has
at the hearing.” (See People v. Carter (2005) 36 Cal.4th 1114,
1172; People v. Wilson (2005) 36 Cal.4th 309, 341.) The
proponent of the evidence, here the prosecution, has the burden
of establishing unavailability. (People v. Herrera (2010) 49
Cal.4th 613, 623.) That burden is met when the witness is
“[a]bsent from the hearing and the proponent of his or her
statement has exercised reasonable diligence but has been unable
to procure his or her attendance by the court’s process.” (Evid.
Code, § 240, subd. (a)(5).) “The term ‘[r]easonable diligence, often
called “due diligence” in case law, “ ‘connotes persevering
application, untiring efforts in good earnest, efforts of a
substantial character.’ ” ’ [Citation.] Considerations relevant to
the due diligence inquiry ‘include the timeliness of the search, the
importance of the proffered testimony, and whether leads of the
witness’s possible location were competently explored.’ ” (Herrera
15
at p. 622.) “[T]o establish unavailability, the prosecution must
show that its efforts to locate and produce a witness for trial were
reasonable under the circumstances presented.” (Id. at p. 623.)
Where the relevant facts are undisputed, we independently
review a trial court's determination of due diligence. (People v.
Fuiava (2012) 53 Cal.4th 622, 675.)
B. Atkins’s Trial Testimony Rendered Moot
the Issue Whether His Preliminary Hearing
Testimony Was Properly Admitted
Two weeks after his preliminary hearing testimony was
read to the jury and the prosecutor had completed her case in
chief, Atkins appeared in court following his arrest for a
probation violation. The prosecutor asked to reopen so Atkins
could testify. Johnson objected. The court overruled the
objection. Johnson then moved to strike Atkins’s preliminary
hearing testimony.3 The court denied the motion. Atkins was
appointed counsel and testified.
Because Atkins testified at trial, the issue of the
admissibility of his preliminary hearing testimony is moot. His
trial testimony was virtually the same as his preliminary hearing
testimony in which he claimed to have lied to the police about
defendants’ involvement in Wallace’s killing. During both court
appearances, Atkins was subjected to vigorous cross-examination
and defendants’ motive in cross-examining him each time was the
same—to demonstrate to the jury the credibility of Atkins’s
3 Bailey’s counsel did not ask that Atkins’s preliminary
hearing testimony be stricken and stated he would have Atkins
testify in Bailey’s defense if the prosecutor was precluded from
reopening her case-in-chief.
16
testimony as opposed to his statements to the police. We,
therefore, need not address whether Atkins’s preliminary hearing
testimony was properly admitted and turn instead to the
admissibility of Gregory’s preliminary hearing testimony.
C. Evidence of the Prosecution’s Efforts to Locate
Gregory
After Gregory was served with a subpoena on May 11,
2012, district attorney investigator Thomas Snook called her
telephone number. A woman, who identified herself as Gregory,
answered and said she had received the subpoena and intended
to appear at trial. She also confirmed her telephone number and
residence address. When Gregory failed to appear on May 30,
2012, as subpoenaed, the court issued a body attachment on that
date.
Snook was aware Gregory had relocated, possibly out of
state, but had since returned to the Los Angeles area. He
determined Gregory was currently associated with several local
addresses: The residence in Los Angeles, where she was listed as
receiving welfare benefits; a house of worship where Gregory
attended services; an address in Compton, which Gregory used
when she last reported to the probation department’s kiosk on
June 29, 2012; a hotel in Los Angeles, where she had once
resided; and an address in Carson, which was the residence of the
father of one of her children.
An attempt to serve Gregory at the Los Angeles residence
was unsuccessful. She was not there. Neighbors confirmed it
was her residence but said she had not been seen in weeks.
Snook checked back on six different days from June 29 through
July 16, 2012. He left his card and asked neighbors to call him if
they saw her. No one called. On July 12, 2012, Snook noticed
17
some of Gregory’s mail had been removed from her mailbox and
there was a postcard reminding her of a WIC appointment for
8:15 a.m. on July 13, 2012. On that date Snook waited one hour
and 45 minutes for Gregory at the WIC office. She never
appeared.
Gregory was not at the address when her mother visited
from out of state, June 20 through 27, 2012, though her mother
did reach Gregory by telephone. Snook repeatedly called
Gregory’s number but received no answer. The telephone was
disconnected by July 10, 2012. He also repeatedly called and left
messages for Gregory’s mother but never heard back.
On July 1 and 2, 2012, investigators went to Gregory’s
place of worship and found the building closed and locked. No
one responded to their calls to the pastor.
On July 3, 2012, Snook went to the Compton address,
which was vacant. The owner of the property told Snook that the
renter, who was not named Gregory, had moved to an unknown
location after not paying rent for six months.
On July 3, 2012, Snook also went to a hotel where Gregory
was reportedly seen one month earlier. No one had signed in
under the name Gregory in April or May 2012, but it was possible
to gain access to the building anyway. Snook checked back two
days later; Gregory was not there.
An investigator went to the address of Gregory’s childcare
provider listed with the Department of Social Services (DSS). A
man that identified himself as the uncle of both Gregory and the
childcare provider said neither niece lived there. He did not have
a telephone number or address for Gregory.
Investigators tracked Gregory’s welfare benefits and
discovered she had used her EBT card on July 2, 2012, to make a
18
purchase at grocery store and withdraw cash from a bank in
Carson. Snook went to the Carson residence of the father of one
of Gregory’s children. The grandfather came to the door, checked
inside the house, and said Gregory was not there. Snook then
spoke to the father who became belligerent. Father insisted
Gregory was not there, they were no longer together, and he did
not know where to find her. Father said Gregory did not want
any part of the case and if Snook found her, she would not testify.
Snook checked the vehicles in and around the residence and
found none were registered to Gregory. On July 16, 2012, he
surveilled father’s residence for 45 minutes, with no results. The
other known father of one of Gregory’s three children lived in
Lancaster, and his telephone was disconnected.
Investigators repeatedly checked police and arrest records,
hospitals, and the coroner’s office, but they were unable to locate
Gregory. Snook contacted the Employment Development
Department (EDD) and learned Gregory was not employed.
Investigator Henry Valdez assisted Snook by conducting data
searches for Gregory’s addresses, telephone numbers, possible
relatives, prior arrests, and utilities. These searches produced
nothing new.
Investigators gave wanted bulletins for Gregory to the
watch commander of the Carson sheriff’s station and spoke to
Gregory’s sister and aunt. They did not know where to find her.
D. Trial Court’s Findings
The trial court ruled the prosecution exercised due
diligence in attempting to secure Gregory’s and Atkins’s presence
at trial.
As pertinent here, for Gregory, the court found the time for
exercising reasonable diligence began when she failed to appear
19
on May 30, 2012, and a body attachment was issued, and
investigators engaged in multiple reasonable efforts to locate her
since the first hearing. The court found Gregory was evading
service; “as soon as [the investigators] had an idea of where she
is, she leaves,” including the Carson residence. The court asked,
“Does anybody really believe [Gregory] was not at that house in
Carson, when [the investigators] went there? Of course not, she
was there.”
E. The Prosecution Exercised Due Diligence in
Attempting to Secure Gregory’s
Presence at Trial
The record of the second hearing reflects the prosecution
exercised due diligence to locate Gregory. Snook and other
investigators visited her last known addresses and other
locations where she reasonably could be found. The investigators
repeatedly called Gregory’s last known telephone number
without receiving any response and spoke to her relatives more
than once. The investigators also searched databases and
checked with the EDD, police and arrest records, hospitals, and
the coroner’s office. The investigators alerted local law
enforcement and neighbors to watch for her. Finally, they
attempted to trace Gregory through her use of her EBT card.
Gregory was transient with no valid address or telephone
number. She apparently wanted to avoid the prosecution’s efforts
to bring her to court, and so such that she was willing to subject
herself to being arrested on a body attachment. Under these
circumstances, it appears unlikely Gregory would have
cooperated with any additional efforts to secure her presence at
trial. (See People v. Diaz (2002) 95 Cal.App.4th 695, 706
[prosecution showed due diligence in trying to secure a witness’s
20
presence at trial, in part, because “it is fairly clear [the witness]
purposefully made herself unavailable”].)
Johnson, nonetheless, contends the prosecution’s
investigation into Gregory’s “whereabouts was shoddy at best.”
He posits more could have been done to find Gregory, such as
leaving a kiosk message for her and contacting members of
where she worshiped. He also faults the investigators for not
going to any locations where Gregory’s EBT card was used and
for not engaging in telephone tapping, telephone tracking or
long-term surveillance. However, due diligence “ ‘requires only
reasonable efforts, not prescient perfection.’ ” (People v. Diaz,
supra, 95 Cal.App.4th at p. 706.) It does not require engaging in
futile acts. (People v. Smith (2003) 30 Cal.4th 581, 611.) To the
extent that any of Johnson’s suggestions were viable, that “
‘additional efforts might have been made or other lines of inquiry
pursued,’ ” does not preclude a finding of due diligence. (People
v. Wilson, supra, 36 Cal.4th at p. 342.) The prosecution’s
attempts to locate Gregory demonstrated reasonable diligence.
III. Substantial Evidence Supports Johnson’s Conviction
Johnson contends his conviction was not supported by
substantial evidence because Gregory and Atkins were not
credible witnesses and they alone linked him to Wallace’s
murder.
The day after Wallace’s murder, police officers encountered
Johnson and Gregory in a parked car. Between Gregory and the
car door, officers found a loaded semiautomatic handgun and
arrested both of them. Shell casings retrieved near the location
of Wallace’s killing came from that gun. Gregory testified at the
preliminary hearing that when the police pulled up, Johnson
handed her a gun and told her to stash it. Gregory placed the
21
gun on her side of the passenger seat. Gregory later pleaded
guilty to unlawfully possessing a firearm and was placed on
probation. Gregory also testified that after hearing Ray Dawg
had been killed a group of armed men, including Johnson and
Bailey, left in cars. When Gregory asked Johnson not to go, he
said, “Fuck that. That’s my homey.” Johnson told Gregory two
days later that he shot a member of the Broadway Gangster
Crips, “[b]ecause they killed Ray Dawg,” and “Ray Dawg would
have done it for him.”
Johnson argues Gregory was an unreliable witness because
her preliminary hearing testimony was self-serving and
uncorroborated. According to Johnson, Gregory was anxious to
cooperate with the police following her arrest so she would be
treated leniently. Furthermore, he claims, the police paid $5,000
for Gregory to be relocated, and Johnson had a hard cast on his
arm at the time so he could not have been the shooter.4
Atkins told the police he overheard Bailey tell Atkins’s
birth mother that he fired five shots at a white truck, and it
crashed. Bailey said Johnson was with him at the time. The
next day, Bailey told Atkins he shot the man in the white truck
and Johnson was in the backseat acting as a lookout. At the
preliminary hearing, Atkins recanted these statements. Atkins
testified he had lied during the police interview and “just made
stuff up,” after being told he could go home.
Johnson argues Atkins was an unreliable witness because
he admitted having lied about the shooting during the police
4 The parties stipulated that before and after Wallace’s
killing, the fingers of Johnson’s right hand were immobilized by a
hard, nonremovable cast that came up to his elbow.
22
interview when he testified at the preliminary hearing and later
at trial.
Johnson’s attack on the credibility of these two witnesses
misapprehends the deferential standard of review that governs
his appeal. It was the jury’s exclusive responsibility to evaluate
the demeanor and credibility of the witnesses. “Resolution of
conflicts and inconsistencies in the testimony is the exclusive
province of the trier of fact. [Citation.] Moreover, unless the
testimony is physically impossible or inherently improbable,
testimony of a single witness is sufficient to support a conviction.”
(People v. Young (2005) 34 Cal.4th 1149, 1181.) We resolve
neither credibility issues nor evidentiary conflicts; we look for
substantial evidence. (People v. Maury (2003) 30 Cal.4th 342,
403.)
Here, Gregory’s and Atkins’s accounts of Johnson’s
involvement in the murder were neither physically impossible
nor inherently improbable.5 Moreover, evidence casting doubt on
the believability of their accounts was presented to the jury and
argued at length by counsel. The jury accordingly was able to
judge the truthfulness of Gregory’s and Atkins’s accounts, and
reasonably could have determined Johnson’s guilt from such
evidence.
IV. Bailey’s Counsel Was Not Presumptively Ineffective
Bailey moved for a new trial, which the trial court denied
following an evidentiary hearing. Bailey contends the trial court
prejudicially erred in failing to find his former trial counsel, Jack
5 Although it was specially alleged in the information, the
jury did not find Johnson personally used and discharged a
firearm at Wallace.
23
Stone, was presumptively ineffective for allegedly sleeping
through portions of the trial.
A. Applicable Law
The Sixth Amendment right to assistance of counsel
includes the right to the effective assistance of counsel.
(Strickland v. Washington (1984) 466 U.S. 668, 668–674; see Cal.
Const., art. I, § 15.) To establish ineffective assistance of counsel,
a defendant must show: (1) counsel’s performance was deficient
in that it fell below an objective standard of reasonableness
pursuant to prevailing professional norms; and (2) prejudice
resulted from counsel’s performance. (People v. Hoyt (2020) 8
Cal.5th 892, 958; Strickland, at pp. 687–696.) Prejudice is shown
if there is a reasonable probability that, but for counsel’s failings,
the result would have been more favorable to the defendant.
(Hoyt, at p. 958; Strickland, supra, at p. 695.) Whether counsel’s
performance was deficient, and whether any deficiency
prejudiced defendant are a mixed question of law and fact subject
to our independent review, but with deference to the trial court’s
credibility determinations and factual findings supported by
substantial evidence. (In re Gay (2020) 8 Cal.5th 1059, 1073;
In re Thomas (2006) 37 Cal.4th 1249, 1256.)
B. Evidentiary Hearing on the New Trial
Motion
The evidentiary hearing occurred five years after the
verdict. By this time, both defendants were represented by new
counsel. Pertinent to the issue of attorney Stone’s trial
performance was the hearing testimony of defendant Bailey and
Jennifer Rockenback, codefendant Johnson’s former trial counsel.
Attorney Stone did not testify.
24
At the hearing, Bailey’s new counsel George A. Quevado
asked if Bailey had “experience[d] any unusual conduct by
[attorney Stone]” during the trial. Bailey answered, “Sometimes
he be dozing off, like, he’s sleeping like.” Mr. Quevado asked,
“Did you bring that to the attention of anybody?” Bailey
answered, “I used to tap [attorney Stone] and had to wake him up
so he could pay attention to what’s going on sometimes.” Bailey
testified that happened “numerous times,” “probably six” times.
Mr. Quevado then inquired of Bailey, “And when you tapped
[attorney Stone] like that, what, if anything, did he say or do?”
Bailey answered, “He said we got this case beat.”
On cross-examination, attorney Rockenback acknowledged
to Mr. Quevado that she “had several concerns about [attorney
Stone’s] lack of attention” during the trial.
“[Mr. Quevado]: And how many times did this issue arise
when you were—when—that you can recall at this point?
“[Ms. Rockenback]: How many times, what, did I feel
concerned?
“[Mr. Quevado]: Yes.
“[Ms. Rockenback] I don’t know that I can quantify it. Um,
I—I can give some examples.
“[Mr. Quevado]: Okay. [¶] Let me ask you this: Did you
have any occasion to have to wake him up during trial?
“[Ms. Rockenback]: Yes.
“[Mr. Quevado]: And how many times did you have to do
that?
“[Ms. Rockenback]: At least a couple.
“[Mr. Quevado]: Okay. [¶] And do you recall at this
time—I know it’s been a long time, we discussed that—but do you
25
recall at this time whether—whether the trial at that point in the
proceedings was important to his client?
“[Prosecutor]: Objection: Calls for speculation.
“[The court]: I think even though this isn’t a civil case, this
would be covered under the doctrine of res ipsa loquitur, it speaks
for itself. [¶] He’s charged with a gang murder. I think it’s
probably important to him. [¶] Next question.
“[Mr. Quevado]: Did you have concerns, personal concerns,
of the health of Mr. Stone during the trial?
“[Ms. Rockenback]: Yes.
“[Mr. Quevado]: And could you describe those concerns to
the court?
“[Ms. Rockenback]: I felt he was forgetful. He would
sometimes, um, call—confuse the name of his client Mr. Bailey
with the witness Mr. Atkins, just things like that—confusing the
names, sometimes being otherwise forgetful.
“[Mr. Quevado]: Anything else?
“[Mr. Rockenback]: No.
“[Ms. Quevado]: Did—Did you observe whether the—
whether he came to court prepared or—unprepared?
“[Ms. Rockenback]: I know that he—I had about, I think,
on any given day, three large binders full of discovery and
materials; and I know that he did not come with materials.
“[Mr. Quevado]: Anything else that you might enlighten
the court about that situation?
“[Ms. Rockenback]: No.
“[Mr. Quevado]: Okay. [¶] Nothing further. [¶] Thank
you your Honor.
“[The court]: Okay. [¶] Any other examples that you want
to give us of Mr. Stone’s conduct during the trial?
26
“[Ms. Rockenback]: No.”
Following the presentation of evidence, there were
numerous continuances of the new trial hearing. Three years
elapsed before the trial court heard counsels’ arguments and
made its ruling. In denying the new trial motion, the trial court
discounted Bailey’s evidence, finding (1) his 30-page new trial
motion and reply never mentioned attorney Stone sleeping
during trial; (2) apart from Ms. Rockenback’s limited testimony,
there was no evidence of when and for how long Stone supposedly
slept; and (3) while the court only focused on the attorney who
was speaking during the proceedings, it was never informed by
anyone in the courtroom that Stone was sleeping.
The court remembered attorney Stone as having an
“incredibly sharp” mind and making good tactical decisions, such
as retaining Atkins’s preliminary hearing testimony, rather than
moving to strike it. Finally, the court found even if Stone had
“dozed off” there was “no evidence” that “it affected his
performance in any way.”
C. The Presumption of Prejudice Recognized in
United States v. Cronic (1984) 466 U.S. 648 Does
Not Apply
In support of his claim of ineffective assistance of counsel,
Bailey relies on United States v. Cronic, supra, 466 U.S. 648 and
Javor v. United States (9th Cir. 1984) 724 F.2d 831 and to argue
prejudice was presumed here. According to Bailey, the evidence
attorney Stone slept during trial is uncontroverted and the trial
court’s res ipsa loquitur comment, in light of that evidence, was a
finding Stone was incompetent. Thus, Bailey reasons, the court
effectively ruled Stone presumptively provided ineffective
assistance. Alternatively, Bailey asserts the trial court’s
27
comment was an abuse of discretion. He maintains it effectively
dissuaded Mr. Quevado from questioning Ms. Rockenback further
about the duration and frequency of Stone’s sleeping to
demonstrate prejudice. Bailey urges us to remand to enable him
to fully present evidence of Stone’s incompetence and to be
granted a new trial.
In United States v. Cronic, supra, 466 U.S. at page 658, the
United States Supreme Court confirmed that “the burden rests
on the accused to demonstrate a constitutional violation” of his or
her right to effective assistance of counsel, but it also
acknowledged there “are, however, circumstances that are so
likely to prejudice the accused that the cost of litigating their
effect in a particular case is unjustified.” In this regard, the court
held prejudice is presumed when assistance of counsel is denied
entirely or at a critical stage of the proceedings, when counsel
entirely fails to subject the prosecution’s case to meaningful
adversarial testing, and where the surrounding circumstances
make it so unlikely that any lawyer could provide effective
assistance that ineffectiveness is properly presumed without
inquiry into actual performance at trial. (Cronic, at pp. 658–661;
accord, Bell v. Cone (2002) 535 U.S. 685, 695–696 [A critical stage
is “a step of a criminal proceeding, such as arraignment, that
held significant consequences for the accused”].) In Javor v.
United States, supra, 724 F.2d at page 833, the federal appeals
court held “when an attorney for a criminal defendant sleeps
through a substantial portion of the trial, such conduct is
inherently prejudicial and thus no separate showing of prejudice
is necessary.” (See Burdine v. Johnson (5th Cir. 2001) 262 F.3d
336, 341 [“consistent unconsciousness of [defense] counsel” due to
sleeping was ineffective assistance].)
28
Cronic’s presumption of prejudice does not apply in this
case. The trial court’s res ipsa loquitur statement is not a finding
that attorney Stone’s trial performance was inherently
prejudicial because he slept during the proceedings. Read in
context, the court made the statement after Ms. Rockenback
testified she had to wake Stone at least a couple of times, and
Mr. Quevado then asked if she recalled “whether the trial at that
point in the proceedings was important to his client?”
Mr. Quevado was apparently attempting to elicit
Ms. Rockenback’s testimony that Stone was asleep at a critical
stage of the proceedings. However, the question was poorly
worded. It could be construed as inquiring instead whether the
trial was subjectively important to Bailey. As the court’s
interruption made clear, it heard the question that way. The
court interjected, using res ipsa loquitur, that the nature of the
trial—on a charge of gang murder—obviously speaks for itself as
important to Bailey. The rather flippant observation by the court
is not a finding of Stone’s incompetence.
From our independent review, we cannot conclude attorney
Stone slept during a critical stage or a substantial portion of the
trial. The court found Bailey’s delayed assertion that Stone had
dozed off six times not worthy of belief. Ms. Rockenback’s
testimony failed to indicate the duration and timing of the two
occasions she saw the attorney sleeping. The trial court did not
notice whether Stone was asleep, but no one in the courtroom,
including Bailey, Johnson, and Ms. Rockenback, complained
Stone had fallen asleep during any portion of the trial. The
evidence does not support a presumption of prejudice.
Bailey’s alternative argument lays the blame for the lack of
evidence at the feet of the trial court: Its res ipsa loquitur
29
statement, if not a finding, misled Mr. Quevado to believe the
court required no more evidence of attorney Stone’s conduct as
prejudicial per se. We disagree. As discussed, the statement was
not a finding. Neither that statement nor any other comment by
the court cut off further questioning about the frequency and
duration of the attorney’s purported sleeping. Indeed,
Mr. Quevado twice asked Ms. Rockenback if there was “anything
else” she could add to her testimony concerning Stone’s trial
performance. Each time she answered, “No.” Just before
excusing Ms. Rockenback, the court asked if she wanted to give
any other examples of Stone’s conduct during the trial.
Ms. Rockenback declined.
V. Proposition 57 Does Not Violate Equal Protection
Bailey was convicted of murder in 2012, but he was not
sentenced until 2019 to an indeterminate term of 55 years to life.
He was awarded presentence custody credits but no presentence
conduct credit for the seven years he spent in county jail. Bailey
contends he was entitled to presentence conduct credit. He
argues because, under Proposition 57, he would have been
eligible for conduct credit had he been housed in prison, rather
than in jail, the denial of his right to such credit simply based on
where the state chose to hold him while he awaited sentencing
violates equal protection.
A sentencing court may award some criminal defendants
presentence conduct credit for good behavior, such as performing
labor or complying with rules. (§ 4019, subds. (b) & (c).) But,
section 2933.2 prohibits any person arrested for or convicted of
murder from accruing any presentence conduct or worktime
credit. (§ 2933.2, subds. (a), (c); People v. Chism (2014)
30
58 Cal.4th 1266, 1336; In re Carr (1998) 65 Cal.App.4th 1525,
1532, fn. 2.)
In November 2016, Proposition 57 was enacted by the
California voters, adding article 1, section 32 of the California
Constitution. As relevant here, it provides: “The Department of
Corrections and Rehabilitation shall have authority to award
credits earned for good behavior and approved rehabilitative or
educational achievements.” (Cal. Const., art. I, § 32, subd. (a)(2);
see People v. Dynes (2018) 20 Cal.App.5th 523, 526.)
Equal protection requires that “persons who are similarly
situated with respect to a law’s legitimate purposes must be
treated equally. [Citation.] Accordingly, ‘ “[t]he first prerequisite
to a meritorious claim under the equal protection clause is a
showing that the state has adopted a classification that affects
two or more similarly situated groups in an unequal manner.” ’
[Citation.] ‘This initial inquiry is not whether persons are
similarly situated for all purposes, but “whether they are
similarly situated for purposes of the law challenged.” ’ ” (People
v. Brown (2012) 54 Cal.4th 314, 328.) “The ‘similarly situated’
prerequisite simply means that an equal protection claim cannot
succeed, and does not require further analysis, unless there is
some showing that the two groups are sufficiently similar with
respect to the purpose of the law in question that some level of
scrutiny is required in order to determine whether the distinction
is justified.” (People v. Nguyen (1997) 54 Cal.App.4th 705, 714.)
“When one argues two similarly situated groups are being treated
differently, it is axiomatic that one group is getting something
the other is not.” (In re Cleaver (1984) 158 Cal.App.3d 770, 774.)
Bailey argues that unlike a pretrial detainee, who is not
similarly situated to a state prison inmate (In re Martinez (2003)
31
30 Cal.4th 29, 36), a defendant convicted of murder awaiting
sentencing shares more similarities than differences with an
inmate serving a sentence for murder. Whether that is true,
neither group is entitled to conduct credit as a matter of law.
Notwithstanding section 2933.2, article 1, section 32 of the
California Constitution empowers the Department of Corrections
and Rehabilitation, not the courts, to award inmates convicted of
murder conduct credit. And the award of conduct credit is
discretionary, not mandatory. The language of article 1, section
32 of the California Constitution gives the Department of
Corrections and Rehabilitation the authority, but does not
require it to award conduct credit to inmates. Thus, although
defendants convicted of murder and awaiting sentencing do not
receive conduct credit, inmates serving a sentence for murder
may also not receive conduct credit under article 1, section 32 of
the California Constitution. “Absent the automatic application of
conduct credits, the equal protection argument fails.” (In re
Cleaver, supra, 158 Cal.App.3d at p. 774; accord People v. Rosaia
(1984) 157 Cal.App.3d 832, 848; People v. Caruso (1984) 161
Cal.App.3d 13, 20, fn. 9.) Because those inmates who are not
awarded conduct credit are treated similarly to defendants like
Bailey, we reject his claimed violation of equal protection.
VI. Sentencing Issues
Prior to sentencing, Johnson admitted having suffered a
prior serious or violent felony conviction within the meaning of
the “Three Strikes” law (§§ 667, subds. (b)–(j), 1170.12). The trial
court sentenced him to an aggregate state prison term of 80 years
to life, consisting of an indeterminate term of 25 years to life for
first degree murder, doubled under the three strikes law, plus
10 years for the section 186.22, subdivision (b)(1)(C) gang
32
enhancement and 20 years for the section 12022.53, subdivisions
(c) and (e)(1) firearm-use enhancement. The court sentenced
Bailey to an aggregate state prison term of 55 to life, consisting of
an indeterminate term of 25 year to life for first degree murder,
plus 10 years for the section 186.22, subdivision (b)(1)(C) gang
enhancement and 20 years for the section 12022.53, subdivision
(c) and (e)(1) firearm-use enhancement. The court imposed but
stayed an additional 10-year firearm-use enhancement for each
defendant. Defendants were each awarded presentence custody
credits of 3,410 days.
A. The 10-year Section 186.22, subdivision (b)(1)(C)
Gang Enhancement Should Be Stricken
In People v. Lopez (2005) 34 Cal.4th 1002, 1006 to 1007, the
California Supreme Court held that first degree murder
committed for the benefit of a gang is subject to the 15-year
minimum parole eligibility term in section 186.22, subdivision
(b)(5), rather than the 10-year enhancement in section 186.22,
subdivision (b)(1)(C). (See People v. Francis (2017) 16
Cal.App.5th 876, 886.) Bailey contends, the People acknowledge,
and we agree, defendants were not subject to the 10-year
enhancement.
B. We Remand for the Court to Exercise Its
Discretion Whether to Impose or Strike the
Firearm-use Enhancements
Defendants were sentenced on May 17, 2019, after the
enactment of Senate Bill No. 620 (2017–2018 Reg. Sess.) (Stats.
2017, ch. 682, § 1), which gave trial courts discretion to strike or
dismiss previously mandatory firearm enhancements. However,
at the sentencing hearing the court here believed it lacked
33
sentencing discretion concerning the section 12022.53,
subdivisions (c) and (e) enhancements.
Bailey contends, and the People acknowledge, remand is
necessary to enable the trial court to determine whether to strike
the firearm-use enhancements. We agree and remand for the
court to consider whether to impose or strike the firearm-use
enhancements for both defendants. (See People v. Gutierrez
(2014) 58 Cal.4th 1354, 1391 [remand for resentencing
appropriate when court unaware of the scope of its discretionary
powers].)
C. Bailey Is Entitled to a Franklin Hearing on
Remand
Under section 3051, Bailey will be entitled to a youth
offender parole hearing during the 25th year of his sentence.
(See § 3051, subd. (a)(1), (b)(3).) When determining whether to
grant Bailey parole at that hearing, the Board of Parole Hearings
“shall give great weight to the diminished culpability of juveniles
as compared to adults, the hallmark features of youth, and any
subsequent growth and increased maturity of the prisoner in
accordance with relevant case law.” (§ 4801, subd. (c).)
In Franklin, supra, 63 Cal.4th at page 283, the California
Supreme Court held that juvenile offenders must be given the
opportunity to gather information regarding their characteristics
and circumstances at the time of the offense to be considered at
future youth offender parole hearings, including statements by
family members, friends, school personnel, faith leaders, and
representatives from the community. (Accord, In re Cook (2019)
7 Cal.5th 439, 451 [an offender entitled to hearing under sections
3051 and 4801 may seek remedy of Franklin proceeding even
though offender’s sentence is otherwise final].) Noting that such
34
statements are more easily assembled at or near the time of the
juvenile’s offense rather than decades later when memories have
faded or records have been lost, the court remanded the case to
allow the defendant “sufficient opportunity to put on the record
the kinds of information that sections 3051 and 4801 deem
relevant at a youth offender parole hearing.” (Franklin, at
p. 284.)
Bailey contends he is entitled to remand for a Franklin
hearing because he was 17 years old when he committed the
murder. The People oppose remand, not because Bailey is
ineligible for a hearing, but because the record fails to show he
was denied “an adequate opportunity to make a record of
mitigating youth-related evidence as contemplated in Franklin.”
(Citing People v. Medrano (2019) 40 Cal.App.5th 961, 967.) The
People point out that Bailey’s counsel requested a Franklin
hearing, but it was never held and urge that he take advantage
instead of the procedure specified recently by the California
Supreme Court. (See In re Cook, supra, 7 Cal.5th at pp. 446–447;
Medrano, at p. 968.)
Requiring such an additional procedural step is
unnecessary here, particularly since the court proceedings have
already lasted more than nine years and we are remanding for
the trial court to exercise its discretion to impose or strike the
firearm-use enhancements. The preferable course is to remand
for the trial court to provide Bailey an adequate opportunity to
make a record of information relevant to a future youth offender
parole hearing under section 3051.
35
DISPOSITION
We affirm the judgments of conviction as to both
defendants but reverse the sentences and remand for the trial
court to impose the minimum parole eligibility term of 15 years
under Penal Code section 186.22, subdivision (b)(5) in lieu of the
enhancement, which is stricken, exercise its discretion with
respect to the firearm-use enhancements and provide Bailey a
Franklin hearing. The trial court is also directed to prepare and
forward to the Department of Corrections and Rehabilitation a
corrected and certified copy of the abstract of judgment.
NOT TO BE PUBLISHED.
SALTER, J.*
We concur:
EDMON, P. J.
LAVIN, J.
* Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
36