Filed 5/29/24 P. v. Johnson CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or

or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

DARRYL JOHNSON

,

Defendant and Appellant. A1 66220

( San Mateo County

Super. Ct. No. 21NF0086 59A )

Defendant Darryl Johnson appeals from a 12

- year prison sentence

imposed after a jury found him guilty of felony second degree robbery and

misdemeanor possession of drug paraphernalia

. On appeal, Johnson

contends that his trial counsel was ineffective for (1) failing to a ssert the

applicability of recent amendments to Penal Code 1 section 1385 at

sentencing , and (2) declining to expressly argue in favor of the presumptive

low term for the robbery count based on recent ame n dments to section 1170

.

Johnson argues that remand is required so that the trial court can c onsider

the sentence imposed in light of those amendments

. Finally, he maintains

,

and the Attorney General concedes, that the trial court erred in staying

rather than dismissing his second five

- year serious felony enhancement

. We

issue a limited remand for the trial court to either strike the second

1 All undesignated statutory references are to the Penal Code

.2

enhancement or strike the punishment for th a t enhancement , but otherwise

affirm.

I. BACKGROUND

On September 2 7 , 2021, the San Mateo County District Attorney filed

the operative information in this case

, alleg ing that Johnson committed

felony second degree robbery (§ 212.5 , subd. ( c ) ; count 1 ); misdemeanor

possession of drug p araphernalia ( Health & Saf. Code, § 11364 ; count 2 ); and

misdemeanor possession of burglar’s tools (§ 466 ; count 3 ). Count 1

— a

serious and violent felony (§§ 667.5, subd

. (c)

, 1192.7, subd. (c) )

— was

enhanced with allegations that Johnson personally used a dangerous and

deadly weapon (a knife) within the meaning of section 12022,

subdivision (b)(1). In addition, the information alleged that Johnson had

suffered two prior serious and/or violent feloni es under the “T hree S trikes ”

law (§ § 667, subd. (d) , 1170.12, subd. (b) ) ; two prior serious felony convictions

subject to five

- year enhancement (§ 667, su b d. (a)(1)); and prior felony

convictions rendering him presumptively ineligible for probation ( § 1203

,

subd. (e)(4)). I t also alleged that Johnson committed count 1 while on parole

following a term of imprisonment for an enumerated s erious or violent felony

within the meaning of section 1203. 0 85, subdivision (a). 2

A. Jury Trial

A j ury trial was held o ver several days in June 2022

. N. Smith testified

that , on July 20, 2021, she was a merchandise manager at a Dollar Tree

located in Daly City. Johnson walked into the store coughing loudly and

2 Count 3 was subsequently dismissed upon motion by the prosecution.

Shortly before trial, the prosecution elected to try the case as a two strike

case rather than a th ree strike matter and the information was orally

amended to plead the priors under subdivision (c)(1) of section 1170.12 rather

than subdivision (c)(2)

.3

without a mask. Smith was concerned about being ex posed to COVID

- 19 and

reported him to the store manager

. Later, she saw Johnson using his hand to

swipe medication into his backpack. She told him he could not steal, but

Johnson ignored her, so she reported the matter to her manager. Smith went

back to stocking until she saw a man on a scooter having trouble exiting the

store. She w as help ing him when Johnson approached the door , te lling her to

“ ‘get the hell out of the way.’ ” She explained she was helping the other man,

and Johnson responded

, “ ‘Move, Bitch . Get out the way.’ ” Smith told him to

wait

, and Johnson stated that if she did not get out of the way he was going

to sta b her. She replied

, “ ‘Really ? Like you’re going to stab me?’ ” He then

lunged at he r, and she saw a knif e in his hand. She moved out of the way

because she did n o t want to get s tabbed. She was scared and angry , feeling

that her life had been threaten ed

. Johnson exited the store and Smith

followed him, the pair yelling back and forth as Johnson walked away

.

While the incident was unfolding, the store manager called 911

. A

recording of the call was admitted into evidence and played for the jury. In

it, the manager can first be heard reporting the theft, but then exclaims:

“[H]e’s threatening to stick her with a knife! He threatened her with a knife! ”

She confirmed she saw the knife in Johnson’s h and. V ideo of the incident

was also admitted in to evidence and played for the jury. The police

responded and began looking for Johnson. When they located him walking

down a street

, Johnson was cooperati ve and did not appear to be under the

influence. O fficer s then searched Johnson , finding a crack cocaine pipe,

pliers or wire cutters, and the stolen medication. No knife was found.

B. Sentencing Matters

Before sentencing, d efense c ounsel moved to dismiss Johnson’s prior

strike convictions under section 1385, subdivision (a) and People v. Superior4

Court (Romero) (1996) 13 Cal.4t h 497 ( Romero ). Specifically, defense counsel

argued that the two prior str i kes (1991 and 2013) were remote in time ; that

Johnson did not injure anyone in the present offense ; that Johnson was

homeless and ill at the time ; and that he needed treatment rather than

prison to break the cycle related to “mental health issues, homelessness, and

poverty.” According to defense counsel, Johnson was “willing to address the

mental health and substance abuse issues that [had] been the driving force

behind his criminal actions.” The prosecution disagreed. After detailing

Johnson’s criminal history

— including c onviction s for four previous felonies

and three prior misdemeanors

, as well as nine parole violations since 1990

—

the facts of the instant case, and the numerous factors in aggravation, the

prosecutor recommended denial of the Romero motion and a 12

- year prison

sentence.

Probation also re commended a prison sentence

, noting that Johnson,

who was 52 at the time, had been in custody or on probation/parole for the

majority of his adult life. Relevant social factors include d Johnson’s report

that his parents separated when he was a newborn, and he never knew his

father. He dis clos ed being sexually abused by female relative s from age eight

to age 17. He was also physically abused by his mother’s boyfriends. He

suffers from emotional and psychological issues

, and attempted suicide at age

14. Johnson stated he had been diagnosed with bipolar disorder, depression,

anxiety, and post traumatic stress disorder

, and had been hospitalized on

several occasion s for mental health issues.

The probation report also detailed Johnson’s history of chronic

s ubstance abuse. He began using marijuana and alcohol at age eight

, cocaine

at age 13

, and heroin at age 42. Johnson reported using cocaine and heroin

daily until h e was arrest ed for the current crimes

. In a written statement,5

Johnson stated he committed the instant offense because he was starving,

homeless, and on drugs. He admitted he had a drug problem and a mental

health problem; stated he was not in his “ right state of mind” at the time of

the offense, being “high off crack” and on psyc hiatric medication; and offered

that he is “not a bad person when [he is] not high off drugs.”

On July 25 , 202 2

, the trial court first admitted evidence memorializing

three of Johnson’s prior felony convictions ( from 1991, 2009 , and 2013 ) and

found them to be true beyond a reasonable doubt. T he trial court then

proceeded to sentencing . Preliminarily, it denied the Romero motion,

reasoning as follows: “ [T]he criminal record is just too serious. It goes back

to 1988. There are multiple felon ies and what

— including a recent robbery

from May 26, 2013, where eventually he went to CDC , and so I don’t

— I don’t

think it would be appropriate to grant Romero in this case. The record is too

serious. I would also note that the offense in this case, I c onsider it a serious

offense with the trial that I had in front of the jury, and I would note that

there are numerous parole violations.

. . . So I don’t think it would be possible

to supervise him and give him probation .” The court went on: “I’m certainly

willing in certain cases to give treatment to somebody , but I just don’t think,

based on Mr. Johnson’s track record, that he’s going to be successful at it , and

I think that there comes a point, unfortunately, where what I have to do as a

Court is to protect society , and that’s where we are now I think.” The trial

court additionally noted that the case could have been charged as a three

strikes case in which Johnson would have been facing up to 36 years to life

,

but the p rosecution “ wisely in this case did, you know , not treat this as a

third

- strike case, but I think a second

- strike case is appropriate. ”

Turning to sentencing, the trial court found that Johnson’s prior

criminal record evinced a “ pattern of regular and inc reasingly serious6

criminal conduct , and [Johnson] represents a danger to others. ” With respect

to count 1 the court opined: “ So what I’m going t o do is I’m going to select the

midterm of three years in the Department of Corrections and Rehabilitation

,

and I’m selecting that because this was a violent offense and there

— his prior

convictions and parole violations are numerous. ” The three years was

doubled to six years as a second strike and ordered to run consecutively to the

one

- year wea pon enhancement and a five

- year enhancement for a qualifying

prior conviction , for a total of 12 years

. The court stayed the enhancement for

the other prior conviction and ordered a sentence of six months in county jail

concurrent with the 426 days of cred i t for time served for count 2

.

Johnson timely appealed

.

II. DISCUSSION

A. Claims Based on Changes to the Sentencing Laws

Johnson a sserts that his trial counsel was ineffective for failing to

argue that the enhancement s that w ere not stayed in this case should have

been dismissed under recent amendments to section 1385

. He further

maintains that t hat the court abused its discretion in failing to impose the

low term for count 1 under recent amendments to section 1170 and that

counsel was ineffective for failing to press the issue at sentencing

. W e are

not convinced

.

1. Ineffective Assistance of Counsel

The Sixth Amendment guarantees the “ ‘right to the effective

assistance of counsel.’ ” ( Strickland v. Washington (1984) 466 U.S. 668, 685

–

686.) The method for analyzing counsel’s effectiveness in this constitutional

context is well settled. “ ‘[T]o establish a claim of ineffective assistance of

counsel, [ Johnson ] bears the burden of demonstrating, first, that counsel ’ s

performance was deficient because it “fell below an objective standard of7

reasonableness [¶]

. . . under pr evailing professional norms.” [Citations.]

Unless [he] establishes the contrary, we shall presume that “counsel ’ s

performance fell within the wide range of professional competence and that

counsel ’ s actions and inactions can be explained as a matter of s ound trial

strategy.” [Citation.] If the record “sheds no light on why counsel acted or

failed to act in the manner challenged,” an appellate claim of ineffective

assistance of counsel must be rejected “unless counsel was asked for an

explanation and fai led to provide one, or unless there simply could be no

satisfactory explanation.” [Citations.] If [ Johnson ] meets the burden of

establishing that counsel ’ s performance was deficient, he

. . . also must show

that counsel ’ s deficiencies resulted in prejudice, that is, a “reasonable

probability that, but for counsel ’ s unprofessional errors, the result of the

proceeding would have been different.” ’ ” ( People v. Bell (2019) 7 Cal.5th 70,

125.)

“ ‘The object of an ineffectiveness claim is not to grade counsel ’ s

performance. If it is easier to dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice

. . . , that course should be followed.’ ”

( In re Cox (2003) 30 Cal.4th 974, 1019

– 1020 ; see People v. Carrasco (2014)

59 Cal.4th 924, 982.) We follow that course her e

. In doing so, we not e that

“ [t] he likelihood of a different result must be substantial, not just

conceivable. ” ( Harrington v. Richter (2011) 562 U.S. 86, 112.) Thus,

“[s]urmounting Strickland ’s high bar is never an easy task.” ( Id. at p. 105.)

2

. Failure to Raise Section 1385, Subdivision (c)

In 2021, the Legislature enacted Senate Bill No. 81 (2021

– 2022 Reg.

Sess.), which became effective on January 1, 2022 and amended section 1385

to prescribe specific mitigating circumstances for trial court s to consider

when deciding whether to strike enhancements from a defendant ’ s sentence8

in the interest s of justice. (Stats. 2021, ch. 721, § 1.) I n particular,

section 1385, subdivision (c) now provides: “(1) 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 i s prohibited by any

initiative statute. [¶] (2) In exercising its discretion under this subdivision,

the court shall consider and afford great weight to evidence offered by the

defendant to prove 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. ”

The mitigating circumstances referenced in subparagraphs (A) through

(I) are : “(A) Application of the enhancement would result in a discriminatory

racial impact as described in paragraph (4) of subdivision (a) of Section 745.

[¶] (B) Multiple enhancements are alleged in a single case. In this instance,

all enhancements beyond a single enhancement shall be dismissed. [¶]

(C) The application of an enhancement could result in a sentence of over 20

years. In this instance, the enhancement shall be dismissed. [¶] (D) The

current offense is connected to mental illness. [¶] (E) The current offense is

connected to prior victimizatio n or childhood trauma. [¶] (F) The current

offense is not a violent felony as defined in subdivision (c) of Section 667.5. [¶]

(G) The defendant was a juvenile when they committed the current offense or

any prior offenses, including criminal convictions an d juvenile adjudications,

that trigger the enhancement or enhancements applied in the current case.

[¶] (H) The enhancement is based on a prior conviction that is over five years9

old. [¶] (I) Though a firearm was used in the current offense, it was

inopera ble or unloaded.” (§ 1385, subd. ( c)(2)(A)

– (I).) To determin e that an

offense is “connected to” mental illness, prior victimization, or childhood

trauma for purposes of section 1385, the court must conclude that the

mitigating circumstance “ substantially contributed to the defendant’s

involvement in the commission of the offense.” ( Id.

, subd. (c)(5) & (6)(A)

– (B)

,

italics added .)

Here, Johnson maintain s that counsel was ineffective for failing to

argue under the amendments to section 1385 that his enhancement s should

be dismissed given their age and multiplicity , his mental health issues, and

his prior victimization and childhood trauma. (§ 1385, subd. (c)( 2 ) (B), (D), (E)

& (H).) We can conceive of several tact ical reasons why defense counsel may

have decided not to request dismissal of the enhancement s under the

amendments to section 1385 in this case

. For example, defense counsel may

have concluded that it was Johnson’s substance abuse rather than his mental

illness or childhood trauma/prior victimization that substantially contributed

to his crimes

, and thus raising the issue would be futile , especially since the

trial court had denied Johnson’s Romero motion based on similar grounds

.

(See People v. J

ones (1979) 96 Cal.App.3d 820, 827 [ “ T rial counsel is not

required to make futile objections, advance meritless arguments or undertake

useless procedural challenges merely to create a record impregnable to

assault for claimed inadequacy of counsel

. ”]

. )

How ever, even if we were to assume counsel’s performance on this

point was deficient , Johnson still cannot establish ineffective assistance

because he cannot show prejudice. As stated above, defense counsel filed a

Romero motion requesting that Johnson’s pri or strike enhancements be

dismissed in the interests of justice pursuant to section 1385, subdivision (a)10

for largely the same reasons Johnson cites her e as supporting a

subdivision (c) claim

— the age of the prior strikes and the need to break his

cycle of “mental health issues, homelessness, and poverty.” And before

ruling, t he trial court “carefully considered the probation report ,” which

chronicled Johnson’s history of mental illness, victimization, and substance

abuse

. N evertheless, the court denied the Romero motion, ma king clear that

it was not interested in granting any more leniency to Johnson than the

prosecution already had in reduc ing the case from three strikes to two.

Rather, the seriousness of Johnson’ s crimina l record and the seriousness of

the offense before it led the court to opine “t hat there comes a point,

unfortunately, where what I have to do as a Court is to protect society, and

that’s where we are at now I think.” T he court then expressly found that

J ohnson “represents a danger to others.”

Subdivision (c)(2) of section 1385 provides that “[p] roof of the presence

of one or more of these [mitigating] 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 re sult in

physical injury or other serious danger to others. ” (Italics added.) It is clear

that the trial court here believed Johnson represented a serious danger to

others. Thus, we see no reasonable likelihood, much less a substantial one,

that the tria l court would have reached a different outcome had defense

counsel also presented a request to dismiss enhancements under

section 1385, subdivision (c).

3

. Failure to A

pply th e Low Term Under Section 1170

Johnson next contends that remand is required because the trial c ourt

abused its discretion in failing to treat the low term as the presumptive

sentence for count 1 under recent amendments to section 1170

. In a related11

argument, Johnson asserts that defense counsel was ineffective for fail ing to

argu e at sentencing that the low term should apply due to his history of

psychological, physical, and/or childhood trauma

. We reject both claims.

Senate Bill No. 567 (2021

– 2022 Reg. Sess.) (Senate Bill 567) , which

amended section 1170 and took effect on January 1, 2022, “ ‘ added a provision

that requires the court to impose the low term if

. . . the defendant ’ s

psychological, physical, or childhood trauma was a contributing factor in the

commission of the of

fense, “ unless the court finds that the aggravating

circumstances outweigh the mitigating circumstances [so] that imposition of

the lower term would be contrary to the interests of justice. ” (Stats. 2021,

ch. 731, § 1.3, adding Pen. Code, § 1170, subd. (b)(6), by amendment; see

Stats. 2021, ch. 731, § 3(c).) ’ ” ( People v. Bautista

- Castanon ( 2023)

89 Cal.App.5th 922, 927 ( Bautista

- Castanon ) .) Our colleagues in Division

Five recently suggested that

, for purposes of this provision, “ an initial

showi ng has been made when the record and/or arguments are sufficient to

put a trial court on notice that a defendant ’ s [(b)(6) circumstance] may have

been a contributing factor in commission of the underlying offense. ” ( People

v. Fredrickson (2023) 90 Cal.App.5th 984, 99 4 ( Fredrickson ) .) Johnson

argues that the record in this case clearly makes such an initial showing,

pointing to the eviden ce in the record with respect to childhood and

psychological trauma we have already described

. Citing People v. Sal azar

(2023) 15 Cal.5th 426 ( Salazar ) and several related appellate court opinions

,

Johnson contends remand for resentencing is required unless the record

“ ‘ clearly indicates ’ ” that the trial court would reach the same decision if it

had specifically considered the applicability of subdivision (b)(6)(A) of

section 1170

.12

Preliminarily, we reject Johnson’s articulation of our applicable

standard of review. All of the cases he cite s address the appropriate standard

for remand where the law changed after the original sentencing hearing.

Under such circumstances

, o u r high court has concluded that “ when a

sentencing court was not aware of the full scope of its discretionary powers at

the time the defendant was sentenced, ‘ the appropriate remedy is to remand

for resentencing unless the record “ clearly indicate[s] ” that the trial court

would have reached the same conclusion “ even if it had been aware that it

had such discretion. ” ’ ” ( Salazar

, supra

, 15 Cal.5th at p. 419 [ sentence on

appeal when Legislature enacted Senate Bill 567] ; accord, People v. Gutierrez

( 2014) 58 Cal.4th 1354, 13 90

– 1391 ( Gu tierrez ) [ after Supreme Court held

there wa s no presumption in favor of life without parole for certain juvenile

offenders , remand was appropriate; because the “trial courts operated under

a governing presumption in favor of life without parole, we cannot say with

confidence what sentence they would have imposed absent the presumption ”];

People v. Almanza (2018) 24 Cal.App.5th 1104

, 1110

– 1111 [remand

appropriate “ when there is a retroactive change in the law subsequent to the

date of the original sentence that allows the trial court to exercise discretion

it did not have at the time of sentence ”]; People v. Banner ( 2022)

77 C al.App.5th 226, 242 [citing Gu tierrez when remanding for retroactive

application of newly enacted § 1170, subd. (b)(6)].)

Here, in obvious contrast, the law changed effective January 1, 2022,

and Johnson was not sentenced until Jul y 2022. “ Absent evidence to the

contrary, we presume that the trial court knew and applied the governing

law.” ( Gut i errez

, supr a , 58 Cal.4th at p. 1390.) And w e review the sentencing

court ’ s choice of term for abuse of discretion. ( People v. P anozo (2021)

59 Cal.App.5th 825, 837 .) “To prove an abuse of discretion, ‘ “[t]he burden is13

on the party attacking the sentence to clearly show that the sentencing

decision was irrational or arbitrary. [Citation.] In the absence of such a

showing, the trial court is presumed to have acted to achieve legitimate

sentencing objectives, and its discretionary determination to impose a

particular sentence will not be set aside on review. ” ’ [Citation.] To meet this

burden, the defendant must ‘ affirmatively demonstrate that the trial court

misunderstood its sentencing discretion.’ ” ( People v. Le e (2017)

16 Cal.App.5th 861, 866 ( Lee ) .)

In other words

, when “ ‘ the record shows that the trial court proceeded

with sentencing on the erroneous assumption it lacked discretion, remand is

necessary so that the trial court may have the opportunity to exercise its

sentencing discretion at a new sentencing hearing. [Citations.] Defendants

are entitled to “ sentencing decisions made in the exercise of the ‘ informed

discretion ’ of the sentencing court, ” and a court that is unaware of its

di scretionary authority cannot exercise its informed discretion. ’ [Citation.] If

the record is silent, however, the defendant has failed to sustain his burden of

proving error, and we affirm

. ” ( Lee

, supra

, 16 Cal.App

. 5th at pp. 866

– 867

,

italics added .)

It is true that the trial court did not expressly mention section 1170,

subdivision (b)(6)(A) at sentencing

, and defense counsel did not argue its

applicability. Nevertheless, there is nothing in the record affirmatively

showing the trial court misunderst ood its sentencing discretion under the

new law. And there is certainly no showing that the court’s sentencing

decision was irrational or arbitrary

. We see no abuse of discretion. 3

3 Indeed, even were we to assume that the trial court was somehow

unaware of its discretion under section 1385, subdi vision (c), we would not

remand. Rather, for the reasons discussed below, we would conclude the14

Johnson additionally argues that defense counsel was ineffective for

failing to raise the applicability of section 1170, subdivision (b)(6)(A) at

sentencing

. The Attorney General suggests this claim was forfeited.

Whether such a claim can be forfeited has not yet been settled. (Compa re

People v. Archane ( 2023) 92 Cal.App.5th 1037, 1044 [§ 1170, subd. (b)(6 )

claim forfeited if not presented at sentencing] with F redrickson

, supra

,

90 Cal.App.5th at p. 994

, fn. 8 [ “ the mandate [in § 1170, subd. (b)(6)] does not

apply if not triggered by an initial showing, but it is not subject to

forfeiture ” ].) We need not resolve this con f lict , however, because we easily

conclude that Johnson cannot show prejudice for many of the reasons already

discussed in rejecting his other ineffective ness claim.

As stated above, the trial court denied defense counsel ’s Romero motion

made on similar mental health grounds after it “carefully considered the

probation report,” which chronicled Johnson’s history of mental illness,

victimization, and substan ce abuse. In doing so , the court cited the

seriousness of Johnson’s criminal record and the seriousness of the offense ;

found Johnson represented a danger to others; and indicated Johnson had

already been granted appropriate leniency when the case was red uced from

three strikes to two

. Thereafter, in sentencing Johnson to the middle term

for count 1, the court expressly found as aggravating factors that Johnson’s

prior criminal record evinced a “pattern of regular and increasingly serious

criminal conduct , and that [Johnson] represents a danger to others.”

Pursuant to subdivision (b)(6)(A) of section 1170, a sentencing court is

required “ ‘ to impose the low term if

. . . the defendant ’ s psychological,

physical, or childhood trauma was a contributing fa ctor in the commission of

record “clearly indicate s ” that the trial court would have reached the same

conclusion.15

the offense, “ unless the court finds that the aggravating circumstances

outweigh the mitigating circumstances [so] that imposition of the lower term

would be contrary to the interests of justice. ” ’ ” ( Bautista

- Castanon

, supra

,

89 Cal.App.5th at p. 927.) It is apparent that the trial cour t believed that the

aggravating circumstances in the case did outweigh the mitigating

circumstances such that imposition of the lower term would be contrary to

the inte rests of justice

. We cannot conceive that the trial court would have

reached a different outcome had defense counsel also presented a specific

argument under section 1170, subdivision (b)(6)(A)

.

B

. Propriety of Staying the Second Five

- y ear Enhancement

As a final matter , Johnson claims that the trial court improperly stayed

his second five

- year prior serious felony enhancement rather than striking it

.

He invites this court to strike the enhancement. The Attorney General

agrees that the tri al court erred by staying the enhancement but suggests

remand on this issue

. We accept the Attorney General’s concession and agree

a limited remand is appropriate to allow for correction of this error.

As we have previously held : “ Under section 1385, a trial court may

‘ strike or dismiss an enhancement ’ or ‘ the additional punishment for that

enhancement in the furtherance of justice. ’ (§ 1385, subd. (b)(1).) ‘ The trial

court has no authority to stay an enhancement, rather than stri ke it

— not, at

least, when the only basis for doing either is its own discretionary sense of

justice. ’ ( People v. Lopez (2004) 119 Cal.App.4th 355, 364; accord, People v.

Brewer (2014) 225 Cal.App.4th 98, 104.) Rather, the only authority for

staying an en hancement is California Rules of Court, rule 4.447, which

applies when ‘ an enhancement that otherwise would have to be either

imposed or stricken is barred by an overriding statutory prohibition. In that

situation

— and that situation only

— the trial court c an and should stay the16

enhancement.” ( Lopez , at p. 365; accord, Brewer , at p. 104.) We agree with

the parties that it appears that the trial court intended to exercise its

discretion under section 1385, since there was no statute precluding

[Johnson] from being sentenced on both enhancements and rule 4.447 thus

does not apply. ’ ” ( People v. Bay (2019) 40 Cal.App.5th 126, 139 .)

III. DISPOSITION

The matter is remanded for the trial court to determine whether to

strike the stayed five

- year serious felo ny enhancement

, or to strike the

punishment for that enhancement

, and to prepare a n amended abstract of

judgment reflecting its decision. The clerk shall forward a certified copy of

the amended abstract of judgment to the Department of Corrections and

Reh abilitation

. The judgment is otherwise affirmed.17 C ASTRO

, J. *

WE CONCUR:

H UMES

, P. J.

L ANGHORNE W ILSON

, J.

A 166220

People v. Johnson

* Judge of the Alameda County Superior Court, assigned by the Chief

Justice pursuant to article VI, section 6 of the California Constitution.