People v. Johnson CA4/1

Filed 8/3/23 P. v. Johnson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080233
Plaintiff and Respondent,
v. (Super. Ct. No. SCE359485)
THOMAS RICHARD JOHNSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Evan P. Kirvin, Judge. Affirmed as modified and remanded with directions.
Joanna Rehm, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
A. Natasha Cortina, Paige B. Hazard, and Lynne G. McGinnis, Deputy
Attorneys General, for Plaintiff and Respondent.
Thomas Richard Johnson appeals the judgment upon resentencing
after remand from a prior appeal. He claims the trial court prejudicially
erred by: (1) imposing an upper term sentence by using an aggravating
circumstance not properly proved, not giving proper weight to his childhood
trauma and mental health history, and not exercising discretion to select the
conviction that would constitute the principal offense; (2) using a prior out-of-
state conviction that does not qualify as a serious felony or strike to increase
his prison term; (3) imposing multiple enhancements even though without
them his aggregate prison term exceeded 20 years; (4) violating his due
process rights by acting arbitrarily and capriciously in sentencing; and
(5) failing to calculate custody credits. We modify the judgment to correct an
error in the prison term imposed on an enhancement, affirm the judgment as
modified, and remand the matter for calculation of custody credits.
I.
BACKGROUND
A. Facts
On March 28, 2016, Johnson approached B.B. in a parking lot and
threatened to stab him with a contaminated needle unless B.B. gave him a
ride. Johnson got into B.B.’s truck, held three needles to B.B.’s neck, and
ordered him to start driving. After driving Johnson to various places for
about 45 minutes, B.B. got out of the truck while he stopped at a traffic light.
Johnson got into the driver’s seat and drove off.
Later the same day, Johnson drove B.B.’s truck to a parking lot,
approached 75-year-old M.E., and asked for directions. While they were
speaking, Johnson snatched M.E.’s purse and drove off.
Still later the same day, Johnson drove B.B.’s truck up to P.S. as she
was walking from a store to her car. He reached out of the truck and tried to
snatch her purse. When P.S. resisted, Johnson abandoned his attempt to
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take the purse and drove off. A bystander telephoned 911 to report the
incident.
Johnson then led police on a high-speed chase in B.B.’s truck. He
eventually crashed and was arrested.
B. Jury Verdicts
A jury found Johnson guilty of five crimes based on the incident
involving B.B.: (1) carjacking (count 2; Pen. Code, § 215, subd. (a);
undesignated section references are to this code); (2) kidnapping (count 3;
§ 207, subd. (a)); (3) assault (count 5; § 240); (4) making a criminal threat
(count 6; § 422); and (5) unlawful taking or driving of a vehicle (count 7; Veh.
Code, § 10851, subd. (a)). The jury found Johnson guilty of robbery (count 8;
§ 211) based on the incident involving M.E., and found true the attached
enhancement allegation he committed the robbery against a person who was
at least 65 years old (§ 667.9, subd. (a)). The jury found Johnson guilty of
attempted robbery based on the incident involving P.S. (count 9; §§ 21a, 211).
The jury found Johnson guilty of reckless driving while attempting to evade a
peace officer based on the high-speed chase (count 10; Veh. Code, § 2800.2,
subd. (a)).
C. Trial Court Findings on Prior Convictions
The trial court held a separate trial on allegations regarding Johnson’s
prior convictions. The People presented fingerprint cards, certified court
documents from Cook County, Illinois, certified transcripts of plea colloquies,
and expert witness testimony. The transcripts contained the factual bases
for the convictions to which Johnson had stipulated, as follows:
• Case No. 04CR1883101, attempted armed robbery. On July 7,
2004, Johnson approached Mr. A. as he was walking to his car in a
parking lot. Johnson asked Mr. A. for a ride. Mr. A. gave Johnson and
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another person a ride. When they arrived at the destination, Johnson
asked Mr. A. for money for bus fare. When Mr. A. refused, Johnson
“pulled a knife and told [Mr. A.] to get out of the car, and he drove off in
his car.”
• Case No. 07CR0027601, aggravated vehicular hijacking. On
November 25, 2006, R.C. agreed to give Johnson, his companion, and
the companion’s infant daughter a ride. Johnson sat in the passenger
seat, and his companion and her daughter sat in the back seat. During
the ride, Johnson ordered R.C. to pull over, pointed a knife at his chest,
and demanded he empty his pockets. R.C. complied, and Johnson
handed his companion the contents of R.C.’s pockets. Johnson then
ordered R.C. out of the car and threatened to kill him. Johnson moved
into the driver’s seat, pushed R.C. out of the car, and drove off.
Johnson ran over R.C. and broke his wrist. Johnson then led police on
a high-speed chase in R.C.’s car.
• Case No. 09CR0561101, robbery. On January 12, 2009, Johnson
approached C.R. on the sidewalk and asked for money. When C.R.
responded he had none, Johnson said, “ ‘I got a [obscenity] gun in my
pocket. Either give me your wallet or I’ll shoot you.’ ” C.R. handed over
his wallet.
• Case No. 09CR0562901, vehicular hijacking. S.B. agreed to give
Johnson a ride to his mother’s house. Along the way, S.B. stopped at
an ATM to withdraw cash. After S.B. continued to drive, Johnson told
S.B. to stop the car, took the cash from S.B. while threatening to cut
him with a knife, ordered S.B. out of the car, and then drove off in the
car without S.B.’s permission.
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The trial court found Johnson was the person who suffered the prior
convictions and each one constituted a serious felony and a strike for
sentencing purposes. The court also found true the enhancement allegation
attached to count 8 that Johnson committed the robbery against a person
who was at least 65 years old and had a prior robbery conviction.
D. Initial Sentencing
The trial court denied Johnson’s motion to dismiss the prior strike
conviction allegations for purposes of sentencing under the Three Strikes law
(§§ 667, subds. (b)-(i), 1170.12). (See § 1385; People v. Superior Court
(Romero) (1996) 13 Cal.4th 497 (Romero).) The court sentenced Johnson as a
third-strike offender to an aggregate prison term of 66 years plus 81 years to
life.
E. Prior Appeal
Johnson appealed the judgment and asserted, among other claims of
error, that three of his four prior convictions (aggravated vehicular hijacking,
aggravated robbery, and vehicular hijacking) did not constitute serious
felonies or strikes, because the elements of those offenses under Illinois and
California law are not the same. Specifically, Johnson argued California law
requires proof of a specific intent to deprive the victim of property, but Illinois
law does not require such proof, and the trial court could not infer such intent
from the plea colloquies. We agreed, reversed the true findings on the
allegations concerning the three prior convictions Johnson had challenged,
and remanded the matter for resentencing with an option for the People to
retry the allegations. Noting Johnson had not challenged the true findings
on the allegations concerning the prior conviction of attempted armed
robbery, we stated, “In resentencing Johnson on remand, the trial court shall
consider the unchallenged true findings” on that conviction.
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F. Resentencing
On remand, the People decided not to retry the prior conviction
allegations on which the true findings were reversed on appeal, and the
matter proceeded to resentencing.
Johnson filed a sentencing memorandum. He urged the trial court to
strike the allegations regarding his prior conviction of attempted armed
robbery, on the ground the conviction suffered from the same legal and
factual deficiencies as did the prior convictions this court determined in the
prior appeal could not be used to increase his prison term. Johnson argued
recent changes to section 1170 required the court to give great weight to his
childhood trauma and mental disorders and to impose the lower term of three
years in prison for the carjacking conviction as the principal term. He
contended execution of the prison terms imposed on the other convictions
based on the incident involving B.B. should be stayed under section 654.
Johnson conceded consecutive prison terms could be imposed for the robbery
and attempted robbery convictions, because they involved separate victims at
separate times. He argued the two-year victim-age enhancement (§ 667.9,
subd. (b)) could not be imposed, because there was no qualifying prior
conviction. Johnson finally contended recent changes to section 1385, which
granted courts power to dismiss enhancements when they would increase the
prison term above 20 years or when the current offenses were connected to
mental illness or childhood trauma, justified dismissal of the section 667.9
enhancements.
Johnson attached to his memorandum several documents, including:
(1) an attending psychiatrists’ assessment and discharge summary from a
psychiatric hospitalization in 1997; (2) a psychiatric evaluation in 2009; (3) a
psychiatric evaluation in 2018 concerning how Johnson’s mental illness and
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substance abuse affected his conduct on the day he committed the current
crimes; (4) minutes from a mental competency hearing in the current case in
2018 and associated reports on involuntary medication to restore competency
and mental competency to stand trial; and (5) a psychiatric evaluation in
2022. The psychiatrist who examined Johnson in 2018, Alan A. Abrams,
stated in his report that Johnson had reported that between the ages of eight
and 13 years he and an older male cousin orally copulated each other; and
Johnson was beaten, orally copulated, and sodomized as a child when he was
in foster care and juvenile hall. Johnson also reported he began drinking
alcohol as a child, began smoking marijuana at age 11, was smoking crack
cocaine and injecting heroin by age 13, and regularly abused many other
substances. Abrams made multiple diagnoses, including “complex PTSD
with dissociation and derealization” and opioid and other substance use
disorders. Abrams concluded, “[A]ll of Mr. Johnson’s mental disorders,
including his substance misuse disorders, would have greatly impaired his
thinking, reasoning and behaviors on the day of the incident.” In his 2022
evaluation, Abrams reported Johnson “ha[d] improved considerably since
being treated on a regular basis with medication assisted therapy” and
“[could] be safely managed in the community with on-going MAT, and a full
variety of approaches for his complex PTSD and substance use disorders.”
The People filed a response to Johnson’s sentencing memorandum in
which they urged the trial court to impose the maximum prison term. They
argued the court had no jurisdiction to relitigate the merits of Johnson’s prior
attempted armed robbery conviction, because doing so would fall outside the
scope of the remand order of this court on the prior appeal, and Johnson
should be sentenced as a second-strike offender. The People asked the trial
court to impose the upper term of nine years on the carjacking conviction,
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because the aggravating factors established by Johnson’s prior convictions
outweighed the mitigating factors, and it would be contrary to the interests of
justice to impose the lower term requested by Johnson. The People agreed
execution of the prison terms for the other convictions based on the incident
involving B.B. should be stayed pursuant to section 654. They requested
imposition of consecutive prison terms for the robbery and attempted robbery
convictions. Finally, the People argued the court should not exercise its
discretion under section 1385 to dismiss the victim-age enhancements
attached to the robbery conviction, and asked the court to impose the one-
year enhancement based on the jury’s true finding. Attached to their
response were certified court records showing Johnson had been sentenced to
prison in two cases in Illinois.
The trial court held a resentencing hearing on March 15, 2022. The
court stated it had read and considered the probation officer’s report prepared
for the initial sentencing and the parties’ written submissions for the initial
sentencing and for the resentencing. In addressing the court, Johnson
apologized for his past “mistakes,” advised the court he was on medication
and had been “clean almost two years now,” and asked the court to “give [him
his] life back.” Johnson’s counsel and the prosecutor next argued some of the
points they had made in their written submissions. The trial court then
proceeded to make several rulings and to impose sentence.
The trial court ruled it could not revisit the validity of the prior
attempted armed robbery conviction and denied Johnson’s request to strike it
as invalid. The court treated the request as a renewed motion under Romero,
supra, 13 Cal.4th 497, and denied it. Based on its denial of the request to
strike the prior conviction, the court denied Johnson’s request to strike the
enhancement under section 667.9, subdivision (b) as invalid for lack of a prior
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qualifying conviction. Turning to the selection of prison terms, the court
found Johnson’s mental health history and childhood trauma were mitigating
circumstances that contributed to the commission of the current crimes. The
court found multiple aggravating circumstances: (1) Johnson “has engaged in
violent conduct that indicates a serious danger to society”; (2) his “prior
convictions as an adult are numerous and of increasing seriousness”; (3) he
“has served a prior prison term”; (4) he “was on parole when the instant
offenses were committed”; and (5) his “performance on parole was
unsatisfactory, as exemplified by his instant convictions.” The court found
the aggravating circumstances outweighed the mitigating circumstances and
made imposition of an upper prison term appropriate. The court ruled the
Three Strikes law required imposition of consecutive prison terms, and stated
that even if it had discretion to impose concurrent terms, it would not do so
because the crimes had independent objectives, involved separate acts of
violence or threats of violence, and were committed at different times and
places. Finally, the court found the circumstances of mental illness,
childhood trauma, and a prison term longer than 20 years would support
dismissal under section 1385 of the victim-age enhancement, but found
dismissal would endanger public safety and was not in the interest of justice,
and therefore denied Johnson’s request to dismiss the enhancement.
The trial court next sentenced Johnson to prison for 28 years four
months, as follows:
• Count 2 (carjacking): the upper term of nine years (§ 215, subd. (b)),
doubled to 18 years based on the prior conviction of attempted armed
robbery (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)).
• Count 8 (robbery): a consecutive term of one year (one-third the middle
term of three years) (§§ 213, subd. (a)(2), 1170.1, subd. (a)), doubled to
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two years based on the prior conviction of attempted armed robbery
(§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), plus a consecutive term of
eight months (one-third the prescribed term of two years) for the
victim-age enhancement (§§ 667.9, subd. (b), 1170.1, subd. (a)).
• Count 9 (attempted robbery): a consecutive term of eight months (one-
third the middle term of two years) (§§ 18, subd. (a), 213, subd. (b),
1170.1, subd. (a)), doubled to 16 months based on the prior conviction
of attempted armed robbery (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)).
• Count 10 (reckless driving while attempting to evade peace officer): a
consecutive term of eight months (one-third the middle term of two
years) (Veh. Code, § 2800.2, subd. (a); §§ 18, subd. (a), 1170.1,
subd. (a)), doubled to 16 months based on the prior conviction of
attempted armed robbery (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)).
• Prior Serious Felony Conviction: a consecutive term of five years for
the prior conviction of attempted armed robbery. (§ 667, subd. (a)(1).)
The court imposed and stayed execution of prison or jail terms on the other
convictions based on the incident involving B.B. (counts 3, 5, 6 & 7) and the
one-year victim-age enhancement on count 8. (§ 654, subd. (a).) It awarded
Johnson “all custody credits as determined by the California Department of
Corrections and Rehabilitation.”
II.
DISCUSSION
A. Selection of Principal Offense and Upper Term
Johnson contends that in selecting count 2 (carjacking) as the
conviction on which to impose and execute punishment for all the convictions
based on the incident involving B.B., the trial court made no mention of its
discretion under section 654 to select any one of the convictions, and should
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be directed to do so on remand. He also contends that in imposing the upper
term on count 2, the court impermissibly relied on an aggravating
circumstance that had not been found by the jury, namely, commission of
violent conduct indicating a serious danger to society,1 and gave insufficient
weight to the mitigating circumstances of childhood trauma, mental illness,
and drug addiction. We disagree.
1. Standard of Review
We begin by setting out the applicable standard of review. When
multiple offenses are based on the same criminal act or course of conduct, and
multiple punishments are therefore prohibited, selection of the offense on
which to impose and execute punishment is a matter within the trial court’s
discretion. (§ 654, subd. (a); People v. Mani (2022) 74 Cal.App.5th 343, 379
(Mani).) When a statute prescribes three terms of imprisonment as
punishment for an offense, the middle term is generally the presumptive
term;2 but the trial court has discretion to select the upper or lower term
based on its assessment of mitigating and aggravating circumstances, as long
as any aggravating circumstance the court relies on to select the upper term
has been found true by a jury, stipulated to by the defendant, or established
by certified records of a prior conviction. (§ 1170, subd. (b); People v. Gerson
(2022) 80 Cal.App.5th 1067, 1095 (Gerson); People v. Lopez (2022)
1 The People argue Johnson forfeited this contention by failing at the
resentencing hearing to object to the trial court’s use of the aggravating
circumstance. Because Johnson asserts a denial of his constitutional right to
a jury trial and ineffective assistance of counsel for failure to object, we elect
to address the contention on the merits. (See People v. French (2008)
43 Cal.4th 36, 46 (French); People v. Monroe (2022) 85 Cal.App.5th 393, 400.)
2 Sometimes the lower term is the presumptive term, as we discuss in
part II.A.3., post.
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78 Cal.App.5th 459, 464 (Lopez).) We review a trial court’s discretionary
sentencing choices for abuse of discretion. (People v. Nicolas (2017)
8 Cal.App.5th 1165, 1182; People v. Ogg (2013) 219 Cal.App.4th 173, 185.) To
establish abuse, the appellant must show the court “act[ed] while unaware of
the scope of its discretion” (People v. Tirado (2022) 12 Cal.5th 688, 694),
“considered impermissible factors” (People v. Carmony (2004) 33 Cal.4th 367,
378 (Carmony)), or made a choice “so irrational or arbitrary that no
reasonable person could agree with it” (id. at p. 377).
2. Principal Offense
Johnson has not shown the trial court’s selection of count 2 (carjacking)
as the conviction on which to impose and execute a prison term for all the
convictions based on the incident involving B.B. was an abuse of discretion.
In support of his request for a remand with directions to the trial court to
exercise its discretion, Johnson relies on the recency of the amendment of
section 654, which eliminated the requirement that the court select the
conviction with the longest term of imprisonment and granted the court
discretion to select any one of them,3 and on the trial court’s failure to
mention that discretion at the resentencing hearing. But “in light of the
presumption on a silent record that the trial court is aware of the applicable
law, including statutory discretion at sentencing, we cannot presume error
3 Effective January 1, 2022, section 654, subdivision (a) provides in part:
“An act or omission that is punishable in different ways by different
provisions of law may be punished under either of such provisions, but in no
case shall the act or omission be punished under more than one provision.”
(Stats. 2021, ch. 441, § 1.) The statute previously required the court to
impose and execute a prison term on the conviction that “provides for the
longest potential term of imprisonment,” and to impose and stay execution of
terms on the other convictions. (Former § 654, subd. (a), as amended by
Stats. 1997, ch. 410, § 1; see Mani, supra, 74 Cal.App.5th at p. 379.)
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where the record does not establish on its face that the trial court
misunderstood the scope of that discretion.” (People v. Gutierrez (2009)
174 Cal.App.4th 515, 527.) Johnson’s resentencing occurred on March 15,
2022, more than two months after the amendment of section 654 took effect.
Johnson correctly points out the parties did not discuss the amended statute
in their written or oral submissions at the resentencing hearing and the trial
court did not mention it at the hearing, but that merely shows a silent record.
Remand for resentencing is not required when the record does not
affirmatively show the trial court misunderstood the scope of its discretion.
(People v. Czirban (2021) 67 Cal.App.5th 1073, 1097; People v. Davis (1996)
50 Cal.App.4th 168, 172-173.)
3. Upper Term
Johnson also has not shown the trial court abused its discretion by
imposing the upper term on count 2. He is correct that recent amendments to
section 1170 “significantly limit[ ]” a trial court’s discretion to impose an
upper term sentence when certain factors contributed to the crime. (See
Stats. 2021, ch. 731, § 1.3, eff. Jan. 1, 2022; Gerson, supra, 80 Cal.App.5th at
p. 1095 [amendments apply to nonfinal cases].) Specifically, the amendments
provide for a presumptive lower term sentence when the defendant “has
experienced psychological, physical, or childhood trauma, including, but not
limited to, abuse, neglect, exploitation, or sexual violence,” and such trauma
“was a contributing factor in the commission of the offense.” (§ 1170,
subd. (b)(6)(A); see Gerson, at p. 1095.) In that situation, the court may
impose the middle or upper term only if it “finds that the aggravating
circumstances outweigh the mitigating circumstances [so] that imposition of
the lower term would be contrary to the interests of justice.” (§ 1170,
subd. (b)(6); see Gerson, at p. 1095.) The court may impose the upper term
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“only when there are circumstances in aggravation of the crime that justify
the imposition of a term of imprisonment exceeding the middle term, and the
facts underlying those circumstances have been stipulated to by the
defendant, or have been found true beyond a reasonable doubt at trial by the
jury or by the judge in a court trial.” (§ 1170, subd. (b)(2).) “Notwithstanding
paragraphs (1) and (2), the court may consider the defendant’s prior
convictions in determining sentencing based on a certified record of
conviction without submitting the prior convictions to a jury.” (Id.,
subd. (b)(3).) Hence, a trial court has discretion to impose an upper term
sentence if it determines aggravating circumstances found by the jury,
stipulated to by the defendant, or established by certified records of prior
convictions outweigh mitigating circumstances. The court made such a
determination in Johnson’s case.
At the sentencing hearing, the trial court found Johnson’s “mental
health history and childhood trauma [were] circumstances in mitigation.”
(Cal. Rules of Court, rule 4.423(b)(2), (3).) The court found “one of the
contributing factors [in the commission of the current crimes] was that
[Johnson] has experienced psychological, physical, or childhood trauma,
including, but not limited to, abuse, neglect, exploitation, or sexual violence.”
That finding “made a low-term sentence presumptively appropriate.”
(Gerson, supra, 80 Cal.App.5th at p. 1095; see § 1170, subd. (b)(6)(A).) As
aggravating circumstances, the court found Johnson: (1) engaged in violent
conduct indicating a serious danger to society; (2) had numerous prior
convictions as an adult; (3) had served a prior prison term; (4) was on parole
when he committed the current crimes; and (5) performed unsatisfactorily on
parole. (Cal. Rules of Court, rule 4.421(b)(1)-(5).) The court determined the
aggravating circumstances outweighed the mitigating circumstances, such
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that imposition of the lower term “would be contrary to the interest of
justice”; the aggravating circumstances “justif[ied] the imposition of a term of
imprisonment exceeding the middle term”; and imposition of the upper term
was “appropriate.” In making these determinations, the trial court stated it
had considered Johnson’s constitutional rights; the interests of society as
represented by the People; Johnson’s background and prospects, including his
“significant criminal record”; the nature and circumstances of the crimes and
Johnson’s involvement; and his mental health history and prognosis if
treated in the community. (Id., rule 4.420, Advisory Com. com.) On the last
point, the court stated “there is no guarantee that upon [Johnson’s] release
into the community, his mental health disorders will be adequately treated
such as to ensure that he will not continue to be a danger to public safety.” It
thus appears the trial court knew about the recently enacted limitations on
its discretion to impose an upper term sentence, acted within those
limitations in selecting the upper term (§ 1170, subd. (b)(2), (6)(A)), and
satisfied its obligation to “set forth on the record the facts and reasons for
choosing the sentence imposed” (§ 1170, subd. (b)(5); see Cal. Rules of Court,
rules 4.406(a), (b)(3), 4.420(i)).
Johnson contends, however, that by imposing an upper term sentence
the trial court abused its discretion in two ways that require reversal of the
judgment. First, he argues the court impermissibly found Johnson’s
commission of violent conduct indicating a serious danger to society was an
aggravating circumstance, because the jury made no such finding. Second,
Johnson argues the court gave too little weight to his childhood trauma and
mental health history and too much weight to his criminal history, because
uncontradicted evidence showed his childhood trauma and untreated mental
illness contributed to all of his crimes. Neither argument is persuasive.
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The trial court properly found Johnson “has engaged in violent conduct
that indicates a serious danger to society” (Cal. Rules of Court,
rule 4.421(b)(1)), based on the jury’s verdicts in the current case and certified
records of convictions from prior cases (§ 1170, subd. (b)(2), (3)). Three of his
current convictions—carjacking, kidnapping, and robbery—are defined as
“violent felonies” by statute. (§ 667.5, subd. (c)(9), (14), (17).) The jury also
found Johnson guilty of reckless driving while attempting to evade a peace
officer, which required the jury to find he drove “in a willful or wanton
disregard for the safety of persons or property.” (Veh. Code, § 2800.2,
subd. (a).) The current crimes involved multiple victims. The trial court also
received certified court records of four prior convictions showing Johnson pled
guilty to attempted armed robbery, aggravated vehicular hijacking, robbery,
and vehicular hijacking; and admitted that in committing three of those
crimes he threatened the victims with a knife and stole their property, and in
one he broke the victim’s wrist. (See pt. I.C., ante.) Thus, from the jury’s
verdicts in the current case and the prior conviction records, the trial court
permissibly found Johnson had committed acts against multiple victims on
multiple occasions that were “[m]arked by or result[ed] from great physical
force or rough action” (American Heritage Dict. (2d coll. ed. 1985) p. 1350
[defining “violent”]) and presented a danger to society that was “[g]rave in
character, quality, or manner” (id., p. 1120 [defining “serious”]).
We acknowledge the jury in the current case did not expressly find
Johnson had “engaged in violent conduct that indicates a serious danger to
society” (Cal. Rules of Court, rule 4.421(b)(1), italics added), and such a
finding may “rest[ ] on a somewhat vague or subjective standard” and may
“require an imprecise quantitative or comparative evaluation of the facts”
(People v. Sandoval (2007) 41 Cal.4th 825, 840). Even if an express finding
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by the jury were required, however, we are confident any error in failing to
obtain the finding was harmless. Such an error was harmless if we can
conclude from the record that the jury would have found the aggravating
circumstance beyond a reasonable doubt had it been asked to do so. (Id. at
p. 838; Lopez, supra, 78 Cal.App.5th at pp. 465-466.) In the current case,
uncontradicted evidence established that on the same day, Johnson
threatened B.B. with infected needles to steal his car, snatched M.E.’s purse
from her person, tried to snatch P.S.’s purse from her person, and then led
police on a high-speed chase before crashing B.B.’s car. (See pt. I.A., ante.)
And as discussed above, certified records of prior convictions showed Johnson
had used a knife to steal or attempt to steal property from multiple victims
and broke the wrist of one. (See pt. I.C., ante.) Where, as here, the evidence
supporting an aggravating circumstance “is overwhelming and uncontested,
and there is no ‘evidence that could rationally lead to a contrary finding,’ ”
the reviewing court may conclude the failure to submit the circumstance to
the jury was harmless. (French, supra, 43 Cal.4th at p. 53; accord, Lopez, at
p. 465.) We so conclude here.
We also reject Johnson’s argument the trial court abused its discretion
by imposing an upper term sentence despite his childhood trauma and
mental health history. Although the lower prison term is the presumptive
term when the defendant’s childhood trauma contributed to the commission
of the crime, the court retains discretion to impose the upper term if it finds
the aggravating circumstances outweigh the mitigating circumstances and
imposition of the lower term would be contrary to the interests of justice.
(§ 1170, subds. (b)(2), (6)(A); Gerson, supra, 80 Cal.App.5th at p. 1095.) At
the resentencing hearing, Johnson presented uncontradicted evidence that
his childhood trauma and related substance abuse and other mental health
17
problems contributed to his crimes, and the trial court found them to be
mitigating factors. (Cal. Rules of Court, rule 4.423(b)(2), (3).) But the court
also found, again based on uncontradicted evidence, that Johnson engaged in
violent conduct indicating a serious danger to society, had numerous prior
convictions, served a prior prison term, committed the current crimes while
on parole, and performed poorly on parole. (Id., rule 4.421(b)(1)-(5).) The
court then weighed the aggravating and mitigating circumstances and found
the former outweighed the latter, so that imposition of an upper term was
justified. “Sentencing courts have wide discretion in weighing aggravating
and mitigating factors” (People v. Lai (2006) 138 Cal.App.4th 1227, 1258),
and reviewing courts can neither “reweigh valid factors bearing on the
decision below” (People v. Scott (1994) 9 Cal.4th 331, 355) nor “ ‘ “ ‘substitut[e]
[their] judgment for the judgment of the trial judge’ ” ’ ” (Carmony, supra,
33 Cal.4th at p. 377). Given the dangerous nature of Johnson’s criminal
conduct and his long-term recidivism, the trial court’s decision to impose an
upper term sentence was not “so irrational or arbitrary that no reasonable
person could agree with it.” (Ibid.) Johnson thus has not met his burden to
show an abuse of discretion. (Id. at p. 376.)
B. Use of Prior Conviction to Increase Prison Term
Johnson next complains the trial court prejudicially erred by using his
conviction for the attempted armed robbery he committed in Illinois in 2004
to increase his current prison term by doubling under the Three Strikes law
the prison terms for the current felony convictions and by adding a five-year
enhancement for the prior conviction. He argues the prior conviction does not
qualify as a serious felony or strike, because under Illinois law, unlike under
California law, specific intent to deprive the victim of property is not an
element of attempted armed robbery, and he admitted no such intent as part
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of the guilty plea. Johnson urges this court to reach this claim of error, even
though in the prior appeal he did not challenge use of the prior attempted
armed robbery conviction to increase his prison term, because, he claims,
appellate counsel was ineffective for failing to make the challenge. He also
argues that even if the trial court could not have stricken the prior conviction
itself under the terms of the remittitur from the prior appeal, the court could
have stricken the additional punishment associated with that conviction,
and, because the conviction does not qualify as a serious felony or strike,
abused its discretion by refusing to do so. The People agree that counsel in
the prior appeal was ineffective for failing to challenge the prior attempted
armed robbery conviction, and that the trial court was required to dismiss
that conviction because it did not require proof of all the elements of the
corresponding California crime. We disagree with the parties.
A prior out-of-state conviction qualifies as a serious felony for purposes
of a five-year enhancement and as a strike for purposes of the Three Strikes
law if the out-of-state offense would be a felony if committed in California
and includes all the elements of any serious felony. (§§ 667, subds. (a)(1),
(d)(2), 1170.12, subd. (b)(2); People v. Warner (2006) 39 Cal.4th 548, 552-553.)
The parties rely on the difference in the elements of robbery under Illinois
and California law to argue the attempted armed robbery conviction does not
qualify as a serious felony or a strike. The California offense of attempted
robbery (§§ 21a, 211), which is on the list of serious felonies (§ 1192.7,
subd. (c)(19), (39)), requires proof of a specific intent to commit robbery
(People v. Burgess (2023) 88 Cal.App.5th 592, 604), which in turn requires
proof of a specific intent permanently to deprive the victim of property by
means of force or fear (In re Milton (2022) 13 Cal.5th 893, 900 (Milton)). The
corresponding Illinois offense also requires proof of a specific intent to commit
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robbery (Ill. Comp. Stat. Ann., ch. 720, § 5/8-4(a); People v. Garrett (Ill.App.
2010) 928 N.E.2d 531, 536), which in turn requires proof of a general intent
to take property from the victim by means of force or threat of force, but no
specific intent permanently to deprive the victim of the property (People v.
Banks (Ill. 1979) 388 N.E.2d 1244, 1247-1248; see Milton, at p. 900
[discussing difference between California and Illinois elements of robbery]).
Therefore, because an Illinois attempted robbery does not require proof of all
the elements of a California attempted robbery, Johnson’s prior attempted
robbery conviction does not qualify as a serious felony or strike under
section 1192.7, subdivision (c)(19) and (39).
Proper analysis does not end there, however. The list of serious
felonies also includes “any felony in which the defendant personally used a
dangerous or deadly weapon.” (§ 1192.7, subd. (c)(23).) That provision
“makes any felony not otherwise enumerated in section 1192.7,
subdivision (c) a serious felony if the defendant personally uses a dangerous
or deadly weapon.” (People v. Briceno (2004) 34 Cal.4th 451, 463.) In
recently explaining that a prior Illinois robbery conviction did not constitute
a serious felony or strike in California under section 1192.7,
subdivision (c)(19) because of the states’ different intent elements for robbery,
our Supreme Court went on to explain that “[a]n out-of-state felony, however,
also qualifies as a serious felony under California law if the defendant
personally used a firearm or a dangerous or deadly weapon in committing the
offense. (§ 1192.7, subd. (c)(8), (23) . . . )” (Milton, supra, 13 Cal.5th at
p. 900.) “Attempted armed robbery is a Class 1 felony” in Illinois. (People v.
Wade (Ill. 1989) 546 N.E.2d 553, 556.) Thus, to borrow language from Milton,
“if [Johnson] personally used a [dangerous or deadly weapon] in the
commission of the Illinois felon[y], [that] prior conviction[ ] would be [a]
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serious felony conviction[ ] and strike[ ] under California’s Three Strikes
law.” (Milton, at p. 900.)
By pleading guilty to attempted armed robbery, Johnson admitted he
“carrie[d] on or about his . . . person or [was] otherwise armed with a
dangerous weapon other than a firearm.” (Ill. Comp. Stat. Ann., ch. 720,
§ 5/18-2(a)(1).) Johnson admitted as part of the factual basis of the plea that
after the victim drove him to a certain location and refused to give him bus
fare, he “pulled a knife and told the victim to get out of the car.” Those
admissions suffice to establish Johnson personally used a dangerous or
deadly weapon in committing the attempted armed robbery. (See People v.
Gallardo (2017) 4 Cal.5th 120, 136 [to determine whether prior conviction
constitutes serious felony or strike, court may consider facts “established by
virtue of the conviction itself,” including facts “the defendant admitted as the
factual basis for a guilty plea”].) The prior conviction of that crime thus
constitutes a serious felony and a strike (§ 1192.7, subd. (c)(23); Milton,
supra, 13 Cal.5th at p. 900), and the trial court was not required to dismiss
the conviction or to strike the associated punishment.
C. Imposition of Enhancements
Johnson claims the trial court erred by imposing the prior serious
felony enhancement and the victim-age enhancements because, in his view,
recent statutory amendments required dismissal of the enhancements.
Effective January 1, 2022, section 1385, subdivision (c)(1) provides:
“Notwithstanding any other law, the court shall dismiss an enhancement if it
is in the furtherance of justice to do so, except if dismissal of that
enhancement is prohibited by any initiative statute.” Subdivision (c)(2)
provides: “In exercising its discretion under this subdivision, the court shall
consider and afford great weight to evidence offered by the defendant to prove
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that any of the mitigating circumstances in subparagraphs (A) to (I) are
present. Proof of the presence of one or more of these circumstances weighs
greatly in favor of dismissing the enhancement, unless the court finds that
dismissal of the enhancement would endanger public safety. ‘Endanger
public safety’ means there is a likelihood that the dismissal of the
enhancement would result in physical injury or other serious danger to
others.” Johnson relies on two mitigating circumstances: (1) “[m]ultiple
enhancements are alleged in a single case,” in which event “all enhancements
beyond a single enhancement shall be dismissed”; and (2) “application of an
enhancement could result in a sentence of over 20 years,” in which event “the
enhancement shall be dismissed” (§ 1385, subd. (c)(2)(B), (C), italics added).
Relying on the italicized language and the fact his prison term was already
longer than 20 years without any enhancements, Johnson argues dismissal of
the enhancements was required, because “[t]he statute speaks in terms that
are mandatory, not permissive,” and “ ‘[s]hall be dismissed’ means what it
says.” We are not persuaded.
“With regard to [Johnson’s] reliance on the use of the word ‘shall,’ it
should not be assumed that every statute that uses that term is mandatory.
[Citations.] ‘Neither the word “may,” nor the word “shall,” is dispositive.’
[Citation.] The context of the language, as well as other indicia of legislative
intent, must be considered.” (People v. Lara (2010) 48 Cal.4th 216, 227.)
Several provisions of the statute on which Johnson relies indicate the
decision to dismiss an enhancement lies within the discretion of the trial
court. (§ 1385, subds. (c)(1) [“court shall dismiss an enhancement if it is in
the furtherance of justice to do so” (italics added)], (c)(2) [“In exercising its
discretion under this subdivision . . . .” (italics added)], (c)(3) [“the court may
exercise its discretion at sentencing” or “before, during, or after trial or entry
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of plea” (italics added)].) Although in the exercise of that discretion the
presence of specified mitigating circumstances “weighs greatly in favor of
dismissing the enhancement,” it does not require dismissal, and the court
may impose the enhancement if it “finds that dismissal of the enhancement
would endanger public safety.” (Id., subd. (c)(2).) The trial court found two
mitigating factors, namely, there were multiple enhancements and their
imposition would result in a prison term longer than 20 years (id., subd.
(c)(2)(B), (C)), but also found their dismissal was not “in the furtherance of
justice” and “would endanger public safety” (id., subd. (c)(1), (2)). “Because of
that finding,” which Johnson has not challenged on appeal, “the court was not
required to ‘consider and afford great weight’ to [the mitigating
circumstances] in its exercise of what the statute explicitly acknowledges to
be the ‘discretion’ that it affords.” (People v. Lipscomb (2022) 87 Cal.App.5th
9, 18.)
The court did err, however, by imposing and executing a victim-age
enhancement on count 8 (robbery) under subdivision (b) of section 667.9
rather than under subdivision (a). A prior conviction of an offense listed in
subdivision (c) is required for imposition of an enhancement under
subdivision (b), but not under subdivision (a). “Robbery, in violation of
Section 211,” and “Carjacking, in violation of Section 215,” are on the list.
(§ 667.9, subd. (c)(3), (4).) But Johnson’s prior convictions of robbery and
vehicular hijacking were based on violations of Illinois statutes, not
California statutes, and as we determined in his prior appeal the offenses do
not have the same elements in the two states. His remaining prior conviction
was for attempted armed robbery, an offense that is not on the list. Johnson
thus was not subject to an enhancement under section 667.9, subdivision (b).
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We shall strike that enhancement and lift the stay of execution on the
enhancement imposed under subdivision (a).
D. Due Process Violation
Johnson complains the trial court deprived him of liberty without due
process of law (U.S. Const., 14th Amend., § 1; Cal. Const., art. I, § 7,
subd. (a)) by disregarding the recent statutory changes that limit sentencing
courts’ discretion to impose upper term sentences and enhancements and
instead sentencing him as if those changes had not been made. Under the
authority he cites, Johnson “must show that an alleged state sentencing error
was ‘so arbitrary or capricious as to constitute an independent due process’
violation.” (Moore v. Chrones (C.D.Cal. 2010) 687 F.Supp.2d 1005, 1041,
citing Richmond v. Lewis (1992) 506 U.S. 40, 50.) He has failed to do so. The
record shows the trial court considered the parties’ written submissions and
oral arguments, applied the statutes and court rules applicable at the time of
resentencing, and determined Johnson’s dangerous conduct and recidivism
justified imposition of an upper term sentence with all applicable
enhancements. Although the court erred in imposing the victim-age
enhancement under subdivision (b) of section 667.9 rather than under
subdivision (a), it otherwise acted within its discretion in imposing a
“sentence [that] was within the limits ‘authorized by state law.’ ” (Moore, at
p. 1041.) No due process violation occurred.
E. Custody Credits
As his last claim of error, Johnson contends the trial court erred by not
calculating his actual custody credits up to the time of resentencing and
instead delegating that task to the Department of Corrections and
Rehabilitation. The People concede the error, and we accept the concession.
When a defendant has served time under a sentence that is vacated or
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modified during the term of imprisonment, “such time shall be credited upon
any subsequent sentence” imposed for the same criminal acts. (§ 2900.1.)
Having resentenced Johnson after the prior appeal, the trial court “should
have determined all actual days [he] had spent in custody, whether in jail or
prison, and awarded such credits in the new abstract of judgment.” (People v.
Buckhalter (2001) 26 Cal.4th 20, 41; accord, People v. Sek (2022)
74 Cal.App.5th 657, 673.) The court must perform this task on remand.
III.
DISPOSITION
The judgment is modified to strike the eight-month enhancement
imposed on count 8 (§§ 667.9, subd. (b), 1170.1, subd. (a)), to vacate the stay
of execution on the four-month enhancement imposed on that count (§§ 667.9,
subd. (a), 1170.1, subd. (a)), and to order execution of the four-month
enhancement. As so modified, the judgment is affirmed. On remand, the
trial court shall calculate Johnson’s custody credits, prepare an amended
abstract of judgment that includes the credits and the modification ordered
above, and forward a certified copy of the abstract to the Department of
Corrections and Rehabilitation.
IRION, J.
WE CONCUR:
O’ROURKE, Acting P. J.
DATO, J.
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