Filed 11/16/20 P. v. Johnson CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MARLON JOHNSON,

Defendant and Appellant.

 D075649

 (Super. Ct. No. SCD267741)

APPEAL from a judgment of the Superior Court of San Diego County, 

Runston G. Maino, Judge. Affirmed in part; remanded with directions.

Patricia J. Ulibarri, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. 

Swenson, Kristine A. Gutierrez and Allison V. Acosta, Deputy Attorneys 

General, for Plaintiff and Respondent.
2

A jury convicted Marlon Johnson of two counts of second degree murder 

(Pen. Code,1 § 187, subd. (a); counts 1 and 2); and unlawful discharge of a 

firearm at an occupied motor vehicle (§ 246; count 3).2 The jury found true 

that regarding counts 1 and 2, Johnson: (1) personally used a firearm 

(handgun) within the meaning of sections 12022.5, subdivision (a) and 

12022.53, subdivision (b); (2) personally used and intentionally discharged a 

firearm (handgun) within the meaning of section 12022.53, subdivision (c);

and (3) personally used and intentionally discharged a firearm (handgun) 

proximately causing great bodily injury and death within the meaning of 

section 12022.53, subdivision (d). Regarding count 3, the jury also found 

Johnson personally used and intentionally discharged a firearm (handgun) 

proximately causing great bodily injury and death within the meaning of 

section 12022.53, subdivision (d).3

The court sentenced Johnson to prison for an indeterminate term of 

105 years to life plus a determinate term of 7 years.

Johnson appeals, contending the five and a half year delay in charging 

Johnson violated his right to due process; the admission of prejudicial 

1 Statutory references are to the Penal Code unless otherwise specified.

2 The jury returned a verdict on count 2 after it was unable to reach a 

verdict on the charge of first degree murder. The prosecutor withdrew the 

first degree murder allegation as to count 2 and asked the jury to engage in 

further deliberations on count 2 for second degree murder. The court granted 

the prosecutor’s request. After resuming deliberations, the jury reached a 

verdict on count 2. 

3 This was the third jury who heard the evidence presented against 

Johnson. The first jury was unable to reach a verdict, and the trial court 

declared a mistrial. A second jury acquitted Johnson of first degree murder 

on count 1 and was unable to reach a verdict on second degree murder on 

count 1 as well as the other two counts. The trial court therefore declared a 

mistrial at Johnson’s second trial.
3

hearsay evidence and improper expert opinion rendered his trial 

fundamentally unfair; his trial counsel was constitutionally ineffective; the 

matter must be remanded to allow the trial court to exercise informed 

discretion to strike Johnson’s firearm enhancements; and the abstract of 

judgment must be amended to accurately reflect Johnson’s custody credits.

Except for agreeing that the abstract of judgment must be corrected, we 

conclude Johnson’s claims lack merit. As such, we remand the matter to the 

superior court with directions to calculate the accurate number of custody 

credits and correct the abstract of judgment accordingly, but we otherwise 

affirm the judgment.

FACTUAL BACKGROUND

On January 9, 2011, at some point after 8:00 p.m., Keith B. and 

Daryl H. left Stacie S.’s house, so Keith could walk Daryl to the bus stop. 

Several neighbors as well as others who were out in the neighborhood noticed 

Keith and Daryl at the street corner. They also saw a third man near the 

street corner and sensed a tense situation. One person saw the third man 

leaning over a car and facing the victims. Another saw the victims and the 

third man walking toward each other. A different witness saw the three men 

arguing and noticed that the third man was in a parking space.

At about 8:39 p.m., Stacie and numerous neighbors and passersby 

heard multiple gunshots. As the third man in the parking space fired a gun, 

Daryl immediately fell to the ground, and Keith tried to run away. Stray 

ammunition rounds shattered the window of a car that was driving by at that 

time. The shooter ran away, with the gun in his hand, toward a white Monte 

Carlo parked nearby. Several neighbors heard the car start and saw it 

immediately drive away.
4

Keith arrived back at Stacie’s door bleeding and told her to call the 

police. She called the police at 8:41 p.m. Keith died of a gunshot wound.

Daryl also was shot. A nurse practitioner, who lived in the area,

provided medical aid to Daryl until paramedics arrived, but he suffered so 

many gunshot wounds that the nurse could not control the bleeding. Daryl 

died as a result of multiple gunshot wounds.

The round that struck a car as it drove by caused the driver, Nadia A., 

to have cuts on her forearms and chest and glass shards and a metal 

fragment in her chin.

No weapons were recovered from the scene of the shooting or Stacie’s 

apartment. The police recovered eight nine-millimeter cartridge casings, a 

bullet fragment, and several cigarette butts from the area where witnesses 

said the shooter had been located. They recovered a bullet and a bullet 

fragment from Nadia’s car and a bullet from another car parked in the area. 

The cartridge casings were all fired from the same gun, and the bullets and 

metal fragments were fired from the same gun. However, without the gun 

itself, it was not possible to determine if the cartridge casings, bullets, and 

metal fragments were all fired from the same gun. An accident 

reconstructionist opined that the bullet that shot Keith passed through 

Keith’s body before striking Nadia’s car.

Daryl’s blood alcohol concentration was .19, and Keith’s was .18, and 

they both tested positive for marijuana. In his pocket, Daryl had a bus 

schedule and bus pass.

The owner of the white Monte Carlo, April P., lived in an apartment 

near where the shooting occurred. She was in a relationship with Johnson at 

the time of the shooting. Johnson regularly stayed at her apartment, and on 

the evening of the shooting, he had dropped her off at a family event and was 
5

driving her car. The Monte Carlo was parked near April’s apartment right 

before the shooting.

An analysis of Johnson’s cell phone records and location data showed 

that in the minutes immediately before and after the shooting, he made 

several phone calls to Abdul H. at 8:34, 8:45, and 8:48 p.m. During that time, 

his phone was using cell towers near where the shooting occurred. By 

8:42 p.m. (about the same time that the first 911 call was placed about the 

shooting), Johnson’s cell phone was moving to the area where Abdul H. lived.

Johnson’s DNA was on the cigarette butts recovered from the crime 

scene.

At 9:19 p.m., Johnson arrived at the bar where April was located. He 

parked behind the bar and waited for April to come outside to him. When she 

got in the car, she noticed he was agitated. He explained that he “got[] into it 

with a couple of guys” and asked her to drop him off at a friend’s house. She 

went back inside the bar to collect her purse and tell her friends where she 

was going, and Johnson had her drop him off in a residential area. At 

9:26 p.m., Johnson called Ale’ishia H., the mother of his child, who lived near 

where April dropped him off.

When April returned to the bar, she told her friend Jennifer P. that 

Johnson had shot two people and that she wanted to go to a different bar.

Shortly thereafter, they learned from another friend that the shooting 

occurred outside of April’s apartment complex.

Over the course of the next two weeks, Johnson stayed with April’s 

family members and Ale’ishia’s family members. Johnson also stayed one 

night in a hotel with April in a room reserved under her name.

When the police came to April’s apartment, she lied and said she lived 

alone, that she had the Monte Carlo at the time of the shooting, and that she 
6

dropped Johnson off at some other location than where she did. The police 

interviewed April a second time at her mother’s house, and she gave a 

different version of events. April later retained an attorney and provided the 

account she gave in court.

On January 13, 2011, a detective called Johnson’s phone number, but 

when the detective identified himself, the person on the other end hung up.

On January 14, Johnson left another detective a voicemail but did not leave 

his contact information. After Johnson moved out of Ale’ishia’s family’s 

house, Ale’ishia gave the police permission to search it. Jennifer did not tell 

the police what April had told her at the bar until several years later.

The police tried to locate Johnson by investigating contacts from his 

cell phone and monitoring April and Ale’ishia. Their efforts, however, proved

unsuccessful.

When the police were unable to locate Johnson, they contacted the Law 

Enforcement Communications Center (LECC) for assistance. They also put 

information into the Officer Notification System so that any law enforcement 

officer who might encounter Johnson would know that the San Diego Police 

Department needed to speak with him. Based on information they received, 

the San Diego Police Department asked the police in England, Arkansas to 

look for Johnson at several addresses. There is no indication that the police 

in Arkansas were able to locate Johnson at that time.

In 2016, the case came to the attention of the San Diego Police 

Department’s cold case homicide team. A detective went to England, 

Arkansas and obtained a phone number that he believed belonged to 

Johnson’s wife. He called and spoke to her, did not mention that he was a 

police officer, and asked her to have Johnson call him back. Johnson did so, 

but he refused to meet with the detective in person. He denied any 
7

knowledge about the shootings, claimed not to know April or anything about 

a Monte Carlo, and said he was not in San Diego at all in 2011.

The detective began working with the San Diego District Attorney’s 

Office to obtain an arrest warrant. Johnson was arrested in Arkansas shortly 

thereafter.

DISCUSSION

I

JOHNSON’S MOTION TO DISMISS FOR PREJUDICIAL DELAY

A. Johnson’s Contentions

The murders in this case occurred on January 9, 2011. Johnson, 

however, was not charged until July 7, 2016—some five and a half years 

later. He contends the trial court violated his state and federal rights to due 

process and a fair trial by denying his motion to dismiss the charges against 

him. The basis of Johnson’s motion was that his due process rights were 

violated due to a prejudicial and unjustified prosecutorial delay in charging 

him. 

B. The Investigation

Detective Wendy Valentin and the other detectives on the case initially 

came to the scene and worked for 23 hours to document the crime scene, 

interview witnesses, and locate the white Monte Carlo. On January 11, two 

days after the shooting, they seized the vehicle and spoke with April at her 

apartment. Later that day, they searched April’s apartment. In the days 

that followed, they continued interviewing witnesses and gathering evidence.

They repeatedly visited locations like April’s apartment, her mother’s home, 

and Johnson’s friends’ homes in an effort to locate Johnson.

On February 1, April provided additional information about the bar she 

had been at on the night of the shooting, the location where she had taken 
8

Johnson, and the hotel where she and Johnson had stayed after the shooting.

The detectives contacted those places to corroborate her account. They 

interviewed additional witnesses, including Johnson’s own family members, 

in an effort to locate him. However, they were not able to locate Johnson 

through his family members and friends. And with each person a detective 

contacted about Johnson, he or she would leave a business card and ask them 

to call the number if there was any contact with Johnson. The detectives also

located Ale’ishia on February 15 and visited her several times over the 

following months.

In the months that followed the shooting, the homicide team became 

very busy with numerous other cases. For investigative assistance, the police 

contacted the LECC. The LECC continued checking various databases to 

locate Johnson and received information tying Johnson to several addresses 

in Oklahoma and Arkansas. However, they did not locate Johnson at any of 

those addresses. The police also put Johnson’s information into the Officer 

Notification System. They pursued leads and worked with the police in 

England, Arkansas, but they did not locate Johnson.

Detective Bruce Pendleton, from the cold case team, testified that a 

case is considered “cold” when it goes unsolved for five years. The key 

difference between homicide teams and cold case teams is that homicide 

teams are constantly on call to investigate new cases, whereas cold case 

teams have “no time constraints” to work a case. 

The cold case team began investigating this case in 2016. Pendleton 

determined that he needed to talk to Johnson because he was the primary 

suspect. Pendleton recalled that a person who worked in the LECC had been 

trying to locate Johnson. Pendleton had “some information” that Johnson 

had been in Oklahoma City, Texas, and Arkansas “through the years.” One 
9

of the locations at which Pendleton believed Johnson could reside was 

England, Arkansas. Thus, Pendleton contacted a police lieutenant in 

England, Arkansas to see if the lieutenant was familiar with Johnson or 

Johnson’s family. The lieutenant was familiar with Johnson; so, Pendleton

flew to Arkansas with another detective in May 2016.

Once in England, Arkansas, Johnson met with local police and “did a 

bunch of computer runs . . . looking for local contacts, traffic cites, or field 

interviews for Mr. Johnson.” But none were found. However, a source 

provided Pendleton with a “lead” on Johnson’s wife’s cell phone number. 

When the other detective flew back to San Diego, Pendleton remained 

in Arkansas. He traveled to Little Rock and worked with Pulaski County 

Sheriff’s Office, where he met with a detective who assisted him in running

additional computer checks on Johnson. Yet, Pendleton still failed to locate 

Johnson. 

Finally, Pendleton called the cell phone number of Johnson’s wife and 

when she answered, he identified himself only as Bruce and asked to speak 

with Johnson. Johnson’s wife did not put Johnson on the phone with 

Pendleton, but about 15 minutes later, Johnson called Pendleton. During 

that call, Pendleton identified himself as a detective sergeant with the San 

Diego Police Department cold case homicide team. Pendleton then told 

Johnson he was investigating a double homicide that occurred in San Diego 

in 2011. Johnson did not want to meet with Pendleton in person but agreed 

to having another call.

In the subsequent telephone conversation between Johnson and 

Pendleton, Pendleton informed Johnson about the specifics of the double 

homicide—it happened on January 9, 2011 at 30th and C street, the suspect 

was seen getting into a white Monte Carlo that belonged to April, Johnson’s 
10

former girlfriend. Johnson claimed that he did not know April and had never 

driven a white Monte Carlo. Johnson also told Pendleton that the last time 

he was in San Diego was 2009 or 2010. Johnson also refused to give 

Pendleton his home address in Arkansas.

Pendleton then interviewed Johnson’s mother, but he was unable to 

discover Johnson’s home address. Fearing Johnson might flee Arkansas, 

Pendleton returned to San Diego, presented the case to the District 

Attorney’s Office, and obtained an arrest warrant for Johnson. Johnson was 

arrested in late July 2016.

An investigator for the San Diego District Attorney’s Office, Sandi 

Oplinger, became involved in the case in June 2016, the month before 

Johnson was arrested. She explained that part of her role is to look at a case 

“with fresh eyes,” talk to witnesses who have not been interviewed before, 

and retest evidence if science has progressed since the evidence was 

originally tested.

Oplinger read every report and listened to every audiotape relating to 

the subject homicides. Based on the information in the file, she decided to 

reinterview some witnesses who might have more information than what was 

in their original statements. She also worked to clarify other ambiguities in 

the investigation.

During her investigation, Oplinger discovered that a person identifying 

himself as “Will” called the police from a nearby gas station right after the 

shooting, but he did not provide his full name or contact information. Will

did not remain in the area after his call, and Oplinger stated she had no way 

to contact him. Also, in reviewing the contents of Will’s call, Oplinger noted 

that Will’s description of the shooting was inconsistent with the physical 
11

evidence. For example, Will said the shooter exited a gold SUV and that 

there was gunfire from more than one direction.

When Oplinger reinterviewed Jennifer, Jennifer informed her that 

when she was at the bar with April on the night of the shooting, April told 

her Johnson had shot two people and explained she had not originally 

reported the statement because she believed April was cooperating with law 

enforcement and had given the police that information.

C. Johnson’s Motion to Dismiss

Before trial, Johnson filed a motion to dismiss the charges against him 

based on unjustified prosecutorial delay. In that motion, he argued the five 

and a half year delay between the date of the homicides and when he was 

charged violated his due process rights. Johnson claimed he was prejudiced 

by the delay because: (1) he suffered “prolonged anxiety and concern” and 

(2) his defense was impaired because of “dimming memories and loss of 

exculpatory evidence.” Specifically, he maintained that the prosecution failed 

to preserve evidence of other individuals who were present in the apartment 

on the night of the shooting. In addition, Johnson asserted that law 

enforcement did not preserve or test certain men’s clothing found in April’s 

apartment or identify April’s alleged former roommate. Also, he claimed that 

law enforcement did not investigate April’s online activities.

Johnson further claimed he was prejudiced by faulty witness memories 

and law enforcement’s failure to find “Will,” an alleged eyewitness to the 

shootings who had called 911. Finally, Johnson asserted that law 

enforcement did not timely interview another eyewitness, Antonio R. Instead 

of interviewing Antonio shortly after the shootings, law enforcement did not 

interview him until January 25, 2017.
12

In opposition, the prosecution argued that Johnson’s motion was 

premature and should await the results of trial. In the alternative, the 

prosecution contended that Johnson could not show prejudice and there was 

no precharging delay.

After considering the motion and opposition to the motion as well as 

entertaining oral argument, the trial court denied Johnson’s motion. In 

doing so, the court stated it believed Johnson “made huge efforts to avoid the 

police until they finally located him years later.” The court further noted 

that “it’s absolutely clear that the defendant fled, knowing the police wanted 

to talk to him and- or arrest him.” The court also appeared to be skeptical 

that Johnson articulated any actual prejudice attributable to the delay.

D. Applicable Law

The due process clauses of the Fifth and Fourteenth Amendments to 

the United States Constitution and article I, section 15 of the California 

Constitution protect a defendant from the prejudicial effects of lengthy, 

unjustified delay between the commission of a crime and the defendant’s 

arrest and charging. (People v. Cowan (2010) 50 Cal.4th 401, 430 (Cowan); 

People v. Nelson (2008) 43 Cal.4th 1242, 1250 (Nelson).) When, as here, a 

defendant does not complain of delay after his arrest and charging, but only 

of delay between the crimes and his arrest, he is “not without recourse if the 

delay is unjustified and prejudicial. ‘[T]he right of due process protects a 

criminal defendant’s interest in fair adjudication by preventing unjustified 

delays that weaken the defense through the dimming of memories, the death 

or disappearance of witnesses, and the loss or destruction of material 

physical evidence.’ [Citation.] Accordingly, ‘[d]elay in prosecution that occurs 

before the accused is arrested or the complaint is filed may constitute a 

denial of the right to a fair trial and to due process of law under the state and 
13

federal Constitutions. A defendant seeking to dismiss a charge on this 

ground must demonstrate prejudice arising from the delay. The prosecution 

may offer justification for the delay, and the court considering a motion to 

dismiss balances the harm to the defendant against the justification for the 

delay.’ [Citation.]” (Nelson, supra, at p. 1250; see People v. Mirenda (2009) 

174 Cal.App.4th 1313, 1327-1329 (Mirenda).)

In Nelson, supra, 43 Cal.4th 1242, our high court explained that “[t]he 

state and federal constitutional standards regarding what justifies delay 

differ” and, although “the exact standard [for due process violations] under 

[the federal] Constitution is not entirely settled[, i]t is clear . . . that the law 

under the California Constitution is at least as favorable for the defendant in 

this regard as the law under the United States Constitution.” (Id. at 

p. 1251.) The court concluded that “under California law, negligent, as well 

as purposeful, delay in bringing charges may, when accompanied by a 

showing of prejudice, violate due process.” (Id. at p. 1255; Mirenda, supra,

174 Cal.App.4th at p. 1328.) However, a due process violation “ ‘claim based 

upon the federal Constitution also requires a showing that the [prearrest] 

delay was undertaken to gain a tactical advantage over the defendant.’ ” 

(Nelson, at p. 1251.)

The court in Nelson also observed that “whether the delay was 

negligent or purposeful is relevant to the balancing process. Purposeful delay 

to gain an advantage is totally unjustified, and a relatively weak showing of 

prejudice would suffice to tip the scales towards finding a due process 

violation. If the delay was merely negligent, a greater showing of prejudice 

would be required to establish a due process violation.” (Nelson, supra, 43 

Cal.4th at p. 1256; see Ibarra v. Mun. Court (1984) 162 Cal.App.3d 853, 858 
14

[“[T]he more reasonable the delay, the more prejudice the defense would have 

to show to require dismissal.”].) 

Although a minimal showing of actual prejudice may require dismissal 

if the proffered justification for the prearrest delay is insubstantial, by the 

same token, the more reasonable the delay, the greater the prejudice the 

defense must show to require dismissal. (Mirenda, supra, 174 Cal.App.4th at 

p. 1327; see People v. Conrad (2006) 145 Cal.App.4th 1175, 1185.) However, 

the court need not engage in the balancing process if the defendant has failed 

to meet his or her initial burden of showing actual prejudice since there is 

nothing against which to weigh such justification. (Mirenda, at pp. 1327-

1328.)

Prejudice may be shown by “ ‘loss of material witnesses due to lapse of 

time [citation] or loss of evidence because of fading memory attributable to 

the delay.’ ” (People v. Catlin (2001) 26 Cal.4th 81, 107, quoting People v. 

Morris (1988) 46 Cal.3d 1, 37.) “We review for abuse of discretion on a trial 

court’s ruling on a motion to dismiss for prejudicial prearrest delay [citation], 

and defer to any underlying factual findings if substantial evidence supports 

them [citation].” (Cowan, supra, 50 Cal.4th at p. 431.)

E. Analysis

We conclude the trial court did not abuse its discretion in denying 

Johnson’s motion to dismiss. Here, in discussing prejudice, Johnson focuses 

on the circumstantial nature of the prosecution’s case against him. He 

emphasizes that no eyewitness identified him as the shooter. He notes there 

was no forensic evidence linking him to the crimes. Johnson correctly decrees 

that the murder weapon was never found. However, simply pointing out the 

weakness in the prosecution’s case does not establish that Johnson was 

prejudiced by the delay.
15

That said, Johnson argues it is important that we appreciate that the 

prosecution’s case against him was based only on circumstantial evidence to 

properly understand how he was prejudiced by the delay. Specifically, he 

claims his prejudice “is reflected by a series of losses, i.e., what the defense 

could not do and what the defense lost as a result of the delay as well as not 

obtaining receipt of the state’s discovery until some five and a half years after 

the shooting, post filing.” Yet, to prevail, Johnson must do more than merely 

point at the passage of time and conclude evidence was lost. (Cf. Crockett v. 

Superior Court (1975) 14 Cal.3d 433, 442.) He must identify specific evidence 

that he believes was lost, not speculate that he was prejudiced because 

potential witnesses’ memories have faded or certain witnesses and evidence 

were made unavailable. (See Shleffar v. Superior Court (1986) 178 

Cal.App.3d 937, 946.) It is this burden that Johnson cannot satisfy.

Johnson does not argue any material witness who was available in 

2011 was not available for trial. Instead, he claims that if the police had 

searched for Will sooner, they might have found him, and his testimony 

would have been exculpatory. 

Nevertheless, Johnson’s inability to produce a witness that he claims is 

necessary to his defense does not automatically entitle him to dismissal of the 

charges. (People v. Kirkpatrick (1972) 7 Cal.3d 480, 486.) And Johnson has 

not shown that the police would have located Will if they had searched for 

him sooner. (See Cowan, supra, 50 Cal.4th at p. 434 [because the subject 

evidence was missing shortly after the crime, “a more prompt prosecution 

would not have benefited defendant” unless it was initiated before that 

point]; People v. Abel (2012) 53 Cal.4th 891, 910 [“Defendant has not shown 

[his investigator] would have found additional records had the investigation 

proceeded more quickly”].) Indeed, although he called the police, Will did not 
16

leave his full name or any contact information. As such, the police had very 

little information to aid them in tracking down Will.

In addition, the content of Will’s call was discussed at trial. As 

Oplinger, explained, Will’s account was inconsistent with the evidence at the 

scene, which indicated there was only one shooter not multiple shooters as 

Will described. Further, Will was the only eye witness who claimed to see a 

gold SUV at the scene of the crime. Johnson does not argue that Will could 

have provided other evidence about the shooting at the trial beyond the 

content of his call to the police. 

Additionally, Johnson has not shown that any witnesses were unable to 

remember material facts. To the contrary, Johnson claims here that he was 

prejudiced because some witnesses’ memories “miraculously got better” over 

the five and a half year delay. Yet, Johnson admits that, in the five years 

since the shooting, law enforcement located and interviewed two witnesses 

who provided details that were, in some respects, helpful to his defense. For 

example, Antonio had provided the police with his contact information at the 

scene of the shooting, but he was not interviewed until 2017. When he 

testified at trial, Antonio had little memory of the event, but he did recall 

previously stating that there was a truck involved in the shooting. However, 

he also believed the shooting occurred during the day and described the 

shooter being in a location that was inconsistent with the physical evidence 

and the testimony of other witnesses.

Similarly, another trial witness, Drew G., had called 911 in 2011, but 

was not interviewed until 2016. At the time of his interview, Drew could only 

identify the general location of the shooter, not the specific place where the 

physical evidence indicated the shooter stood. In his 911 call, he had 

described the shooter as Hispanic or African American, but at the time of his 
17

trial testimony, he believed the shooter was Hispanic. At least as to these 

two witnesses, Johnson did not show any likelihood that they would have 

recalled details any better for the defense had he been arrested sooner. (See 

Shleffar v. Superior Court, supra, 178 Cal.App.3d at p. 946 [speculation about 

prejudice is insufficient to discharge the defendant’s burden].) On this 

record, we are satisfied that substantial evidence supported the trial court’s 

finding that Johnson did not show he was prejudiced by the delay.

Moreover, Johnson discounts that his trial counsel was able to crossexamine all trial witnesses and probe their fading memories and impeach 

them with their inconsistencies. And defense counsel questioned the police 

officers, detectives, and investigators about the investigation of Will’s call. 

Thus, on the record before us, if there was prejudice, defense counsel was 

able to minimize it. (See Cowan, supra, 50 Cal.4th at p. 434 [“defense 

counsel was able to exploit the destruction of this evidence by pointing 

out, . . . that it had never been examined” and “any prejudice from the loss of 

evidence was minimal”].)

Even assuming Johnson established actual prejudice from the 

precharging delay that occurred, the law is clear that “the executive branch 

has broad discretion when it comes to deciding how to allocate scarce 

investigative resources and when to file criminal charges in a particular case. 

[Citations.]” (People v. Booth (2016) 3 Cal.App.5th 1284, 1309 (Booth).) 

Indeed, absent evidence the police or prosecutors were negligent or 

intentionally dilatory in terms of handling an investigation, courts are loath 

to second-guess when charges should have been brought in a particular case. 

(Ibid.)

Here, Johnson contends police exercised little effort to track him down 

although they knew, within two days of the homicides, that April owned the 
18

Monte Carlo, and after talking to her, they knew about Johnson. In this 

sense, Johnson implies that he could have been easily found had the police 

exerted minimal effort. The record does not support that argument.

To the contrary, the police diligently attempted to track down Johnson. 

They talked to April and Ale’ishia as well as Johnson’s family members and 

other friends. During this time, the record indicates that Johnson was 

avoiding the police. Johnson avoided any location where the police were 

looking for him, including April’s apartment and eventually April’s mother’s 

house. He even stayed in a hotel one night. When a detective called 

Johnson’s number and identified himself, the person on the other end of the 

phone hung up. Johnson did return another detective’s call, but he did not 

leave his contact information. Then, for five years, Johnson avoided creating 

any significant transactions or records that might enable the LECC to locate 

him. When a detective finally spoke to him on the phone, Johnson refused to 

meet in person. Against this backdrop, it is difficult to cast blame on the 

police or assume they were negligent in failing to arrest Johnson when 

Johnson clearly was avoiding the police. (See People v. Perez (1991) 229 

Cal.App.3d 302, 313 [“[T]he fugitive, having done all he or she can do to avoid 

being brought to justice, cannot then claim the denial of the right to speedy 

trial resulted from the ensuing delay”].) Further, Johnson left the 

jurisdiction to avoid prosecution. Under that circumstance, the prosecution,

generally, is not accountable for the delay. (Id. at p. 314.)

Moreover, the police department’s limited resources also contributed to 

the delay. The necessity of allocating prosecutorial resources may cause valid 

delays. (Nelson, supra, 43 Cal.4th at pp. 1256-1257.) “It is not enough for a 

defendant to argue that if the prosecutorial agencies had made his or her case 

a higher priority or had done things a bit differently they would have solved 
19

the case sooner.” (Id. at p. 1257.) Here, the homicide team became very busy 

with other homicide cases in the months after this shooting took place. The 

police utilized other resources, including the LECC and Officer Notification 

System. However, it was not until the cold case team took over in 2016 that 

the police had the time to focus exclusively on this case without competing 

obligations in other cases. With the additional time, the police located and 

arrested Johnson within a matter of months. 

On the record before us, we agree with the trial court that there was a 

strong justification for the precharging delay that occurred. (Booth, supra, 

3 Cal.App.5th at p. 1309.) Balancing that justification against the weak-tononexistent showing of prejudice Johnson put forth, the trial court properly 

denied his motion to dismiss. No abuse of discretion or cause for reversal has 

been shown.

II

Oplinger’s Testimony

A. Johnson’s Contentions

Johnson challenges several portions of Oplinger’s trial testimony. He 

argues that Oplinger testified about “vast amounts of hearsay,” vouched for 

the credibility of witnesses, removed material issues from the jury, and 

offered improper expert opinion. As the People point out, Johnson’s trial 

counsel did not object to much of the testimony of which Johnson now 

complains. Thus, the trial court was not presented with timely and specific 

objections, and the prosecution was not given the opportunity to respond to

any objections that the court sustained. Accordingly, as we explain post, we 

conclude Johnson forfeited his claims on these issues here.
20

B. Background

Not surprisingly, a major issue at Johnson’s trial was the time that 

transpired between when the crimes were committed and when he was 

arrested. The prosecution therefore called witnesses to explain the 

investigation of the two homicides and address the delay in arresting 

Johnson. One such witness was Oplinger, an investigator with the District 

Attorney’s Office.

Oplinger testified about her investigation of the case beginning in 2016.

Because her investigation began several years after the crimes were 

committed, she brought “fresh eyes” to the case. Her job was to corroborate 

details, talk to witnesses who had never been interviewed, and determine 

whether evidence needed to be tested again. As part of her investigative role, 

she was tasked with identifying inconsistencies in the evidence and trying to 

reconcile them. In doing so, she reviewed 3,000 pages of material, including 

every police report and audio recording. Yet, she did not reinvestigate the 

entire case or reinterview every witness. Instead, she assessed whether

witness statements appeared to be “accurate” or whether witnesses appeared 

to have “essential information.” When she decided to reinterview witnesses, 

her purpose was to “see if they remember what they had said,” obtain more 

details, or to clarify ambiguous descriptions.

For example, Oplinger explained that one of the witnesses, 

Celestina O., originally reported that the victims were approaching Johnson

“in a threatening manner,” and she reinterviewed her to gain a better 

understanding of what caused Celestina to describe the victims’ approaches 

as threatening. Celestina told Oplinger that the victims were walking 

swiftly, that Johnson was walking toward the victims at a slower pace, and 
21

that she did not observe any weapons. Johnson’s trial counsel did not object 

to this testimony.

During her investigation, Oplinger discovered that Drew had called 911 

as an eyewitness but had never been interviewed. While testifying at trial, 

Oplinger briefly summarized her interview of Drew. Oplinger testified that

Drew marked, on a diagram, the approximate location where he recalled the 

shooter standing, and Oplinger observed that the exact location he marked 

was not consistent with the physical evidence, but the general vicinity was 

consistent with the evidence. She based her opinion on the location where 

the shell casings were found and the trajectory of the bullet that struck the 

van. Defense counsel did not object to this portion of the testimony.

In addition, Oplinger noticed that Rebecca Z., the girlfriend of 

eyewitness Richard R., told the police that Richard had seen a man with a 

gun getting into a car, but when Richard was interviewed, he left out that 

detail. So, she interviewed both Rebecca and Richard again and obtained 

additional information. Oplinger also testified that she believed Richard’s 

statement was consistent with statements from two other eyewitnesses’

respective statements as well as the physical evidence. Although defense 

counsel objected to portions of Oplinger’s testimony about her interview of 

Richard on the grounds of that evidence was misstated and a question was 

leading, he did not object on hearsay grounds to this portion of Oplinger’s 

testimony.

However, Johnson’s trial counsel objected to a subsequent portion of 

the Oplinger’s testimony when she discussed some of the physical evidence at 

the scene. The subject testimony was as follows:

“Q. [Drew’s] statement, as you’ve testified to, was that 

he saw one man with a gun. Is that consistent with 

[Richard’s] statement that there was one man with a gun?
22

“A. Yes.

“Q. Is that consistent with the physical evidence that 

there was one gun at this crime scene?

“A. Yes. We have eight nine-millimeter shell casings 

that all match together. We have the missiles that were 

recovered from the scene that all came from one gun. The 

firearms expert can’t compare the missiles --

“[Defense Counsel]: I’m going to object to the witness 

testifying as to what the expert can testify to. She 

answered the question.

“[THE COURT]: I think she answered the question. 

The witness is testifying as an expert, and you’ll get an 

instruction on experts. You can accept an opinion. You can 

reject it. You can give it some weight, great weight, 

whatever you want.”

Oplinger also explained why she did not attempt to find “Will.” She 

testified that Will did not leave enough identifying information to allow her 

to find him. She also noted no police officer contacted Will previously. When 

the prosecutor followed up on Oplinger’s statement that police had not talked 

to Will by beginning to ask, “[E]ven though there was no way to contact 

him—” defense counsel objected on the grounds the prosecutor was leading 

the witness and misstating the evidence. The court overruled the objection. 

Oplinger continued to testify that Will’s account was inconsistent with all of 

the evidence she had reviewed. 

Oplinger additionally explained that she located Antonio, who had not 

been interviewed near the time the homicides were committed. Over defense 

counsel’s hearsay objection, the court determined that Antonio’s statements 

were admissible for the limited purpose of showing whether the case was 

diligently investigated and “whether or not the information [Oplinger] relied 
23

on [wa]s reliable information, why she has an opinion as to what happened.”

Oplinger thus summarized Antonio’s statement and opined that it was 

inconsistent with the other evidence “based on where . . . the shooter came

from and the direction of the shots being fired.”

As an example of additional testing, Oplinger explained that she had a 

blood trail from the scene tested for DNA to confirm that it was Keith’s blood.

Oplinger also testified that April was not cooperative during the 

investigation, adding, “I know after reading the reports that the prior 

detectives had done that she lied twice to law enforcement and she wasn’t, I 

don’t think, a hundred percent forthcoming in her third interview on 

February 1st.” She then detailed her failed efforts to interview April again. 

Johnson’s trial counsel did not object to this portion of Oplinger’s testimony.

C. Analysis

Here, Johnson challenges Oplinger’s testimony with a broad brush. He 

claims Oplinger’s “testimony was a blatant misuse of expert testimony, 

usurped the duties of the factfinder, and essentially vouched for Oplinger’s 

credibility and that of key prosecution witnesses in this case while 

undermining witnesses that may have benefited the defense like ‘Will’ and 

[Antonio]” As such, Johnson argues that Oplinger offered improper expert 

opinions and commented on the veracity of witnesses. Yet, he does not point 

to anywhere in the record where he made such objections at trial.

We observe that Johnson’s trial counsel did object to Oplinger’s 

testimony when she tried to explain that the firearm expert could not 

compare various bullets and casings. However, that objection was aimed at 

Oplinger’s attempt to discuss what another expert could testify to: “I’m going 

to object to the witness testifying as to what the expert can testify to. She 

answered the question.” And the court agreed with defense counsel, and 
24

Oplinger never finished explaining what the firearms expert could not testify 

about. That said, defense counsel was not objecting to Oplinger opining 

about whether another witness’s statement was consistent with other 

witnesses’ statements or the physical evidence. Further, Johnson points to 

no other objections in the record as to the scope of Oplinger’s testimony or 

any other opinions that she offered. 

In addition, although Johnson’s trial counsel did object to Oplinger’s 

testimony about Antonio’s statements on hearsay grounds and the trial court 

overruled that objection, on appeal, he does not explain why this was error. 

Instead, Johnson lumps Antonio’s statements with statements of other 

witnesses to which no objections were made. He then argues that none of the 

statements should have been admitted at trial. In this sense, he fails to 

adequately explain why the court erred in overruling the one hearsay 

objection made at trial that is relevant to his appeal.

In short, Johnson tries to challenge much of Oplinger’s testimony here, 

primarily because he claims it improper expert opinion and/or hearsay, but 

he did not make such objections below. As such, he has forfeited these 

contentions in the instant matter. (People v. Demetrulias (2006) 39 Cal.4th 1, 

19-20.) Forfeiture is especially appropriate on the record before us because 

Oplinger was testifying, in part, to explain the delay in arresting Johnson 

and what she did when she began to investigate this case in 2016. By failing 

to object at trial, Johnson denied the prosecution the opportunity to correct 

any of the errors he now claims occurred. (See People v. French (2008) 43 

Cal.4th 36, 46 [“ ‘[T]he forfeiture rule ensures that the opposing party is 

given an opportunity to address the objection, and it prevents a party from 

engaging in gamesmanship by choosing not to object, awaiting the outcome, 

and then claiming error.’ ”]; Doers v. Golden Gate Bridge etc. Dist. (1979) 23 
25

Cal.3d 180, 184-185, fn. 1 [“ ‘[I]t is unfair to the trial judge and to the adverse 

party to take advantage of an error on appeal when it could easily have been 

corrected at trial’ ”].)

Trying to circumvent forfeiture, Johnson argues any forfeiture must be 

the result of ineffective assistance of counsel. We reject this contention.

To show that trial counsel’s performance was constitutionally defective, 

an appellant must prove: (1) counsel’s performance fell below the standard of 

reasonableness, and (2) the “deficient performance prejudiced the defense.” 

(Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland).) 

Competency is presumed unless the record affirmatively excludes a rational 

basis for trial counsel’s choice. (People v. Ray (1996) 13 Cal.4th 313, 349; 

People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.)

“It is particularly difficult to prevail on an appellate claim of ineffective 

assistance. On direct appeal, a conviction will be reversed for ineffective 

assistance only if (1) the record affirmatively discloses counsel had no 

rational tactical purpose for the challenged act or omission, (2) counsel was 

asked for a reason and failed to provide one, or (3) there simply could be no 

satisfactory explanation.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)

We review trial counsel’s performance with deferential scrutiny, 

indulging a strong presumption it falls within the wide range of reasonable 

professional assistance, recognizing the many choices attorneys make in 

handling cases and the danger of second-guessing a trial attorney’s decisions. 

(People v. Maury (2003) 30 Cal.4th 342, 389; Strickland, supra, 466 U.S. at 

pp. 687-688, 694.)

Johnson’s claim of ineffective counsel arises from his trial counsel’s 

failure to make certain objections to Oplinger’s testimony during trial. 

However, in assessing whether counsel’s performance was deficient, we must 
26

remain mindful that “[a]n attorney may choose not to object for many 

reasons, and the failure to object rarely establishes ineffectiveness of 

counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540.) Moreover, we generally 

defer to the tactical decisions of trial counsel. (See People v. Scott (1997) 15 

Cal.4th 1188, 1212; People v. Holt (1997) 15 Cal.4th 619, 703.)

In the instant matter, there are satisfactory explanations for defense 

counsel’s conduct at trial. As the People suggest, defense counsel might not 

have objected because he did not want to highlight certain testimony for the 

jury. (See People v. Harris (2008) 43 Cal.4th 1269, 1290 [no ineffective 

assistance where counsel might “have decided that objecting would focus the 

jury’s attention . . . in ways that would not be helpful to the defense”].) “Or 

the jury may have looked bored, and the stimulus of an objection may have 

awakened the jurors’ interest in a counterproductive way.” (People v. 

Ramirez (2019) 40 Cal.App.5th 305, 311.) 

Yet, this may be the rare case where defense counsel’s strategy is clear 

even on a cold record. Over several hearsay objections by the prosecution, 

defense counsel cross-examined Oplinger regarding several witness 

statements. For example, during his cross-examination of Oplinger, defense 

counsel called into question whether Drew’s recollection of where the shooter 

was on the night in question was consistent with the physical evidence. 

Moreover, counsel’s questions caused Oplinger to reiterate that Drew 

identified the shooter as a “light-skinned Hispanic male” while she agreed

that the location of the shootings was well lit and Drew had good vision.

Johnson’s trial counsel also caused Oplinger to reinforce that Richard

did not mention that he saw a black man with a gun getting out of a white 

Monte Carlo when he was interviewed by the police on the night in question. 
27

Instead, Richard added this new information only after Oplinger interviewed 

him over five years later.

In addition, Johnson’s trial counsel asked Oplinger about the 

statements of eyewitness Celestina. Through his cross-examination, counsel 

caused Oplinger to admit that she wrote in her report, based on Celestina’s 

statement, that two males approached a third male in an aggressive manner 

and that third male stood his ground.

Defense counsel also made Oplinger testify, again over hearsay 

objections, that an officer and a sergeant in the police department were 

discussing the alleged identification of .22 caliber shells at the crime scene.

Yet, there were no .22 caliber shells at the crime scene, and the police had 

made a mistake.

Johnson’s trial counsel also questioned Oplinger about discrepancies 

between what the Computer Aided Dispatch System (CAD) indicated Antonio 

had witnessed on the night of the homicides and what Antonio told Oplinger 

when she interviewed him over five years later.4

Counsel additionally emphasized, through the cross-examination of 

Oplinger, that no homicide detective interviewed Antonio despite him leaving 

his contact information with the police. He was only interviewed by Oplinger 

over five years later and, at that time, Oplinger had to remind Antonio of 

where the shootings occurred. Defense counsel also got Oplinger to admit 

that Antonio stated that he believed the shootings occurred between 

11:00 a.m. and 4:00 p.m. and that he could not recall many of the details of 

the shootings.

4 The CAD indicated that Antonio had driven by the crime scene and 

might have seen something. However, Antonio told Oplinger that he had not 

driven by.
28

Johnson’s trial counsel also cross-examined Oplinger on the content of 

Will’s 911 call. Over a hearsay objection, Oplinger testified that Will 

described the shooter as “18 to 22 years old,” said he saw the shooter leave 

the scene in a gold SUV, and “seemed excited” on the call. Defense counsel 

further questioned Oplinger on law enforcement’s efforts to track down Will, 

getting her to admit that a clerk at a service station might have known Will

but law enforcement never contacted the clerk to locate Will. 

In summary, it appears that Johnson’s trial counsel’s defense strategy 

included extensively questioning Oplinger on various witness statements and 

showing how the statements were inconsistent with each other and the 

physical evidence. Through this cross-examination of Oplinger, counsel also 

challenged the prosecution’s narrative that it diligently investigated the 

homicides. On this record, Johnson cannot show that his trial counsel’s 

performance fell below the standard of reasonableness. Because Johnson 

cannot satisfy the first prong of the Strickland test, we need not evaluate his 

claim of prejudice.5 

III

THE FIREARM ENHANCEMENT

For defendants who personally used firearms in the commission of 

certain qualifying offenses, section 12022.53 authorizes trial courts to impose 

various sentence enhancements based on how the defendant used the 

weapon: 10 years for merely using it; 20 years for intentionally discharging 

it, and 25 years to life for intentionally discharging it and proximately 

5 The fact that Johnson’s trial counsel extensively cross-examined 

Oplinger on the content of witness statements, including pointing out 

inconsistencies between them, underscores the need to find forfeiture here. It 

would be unfair to the prosecution to allow Johnson to claim error only after 

his defense counsel’s strategy failed to achieve the results he desired. (See 

People v. French, supra, 43 Cal.4th at p. 46.)
29

causing great bodily injury or death. (§ 12022.53, subds. (b)-(d).) Although 

the enhancements used to be mandatory, by the time Johnson was sentenced, 

the Legislature had amended section 12022.53 to grant trial courts the 

discretion, “in the interest of justice pursuant to Section 1385 . . . , [to] strike 

or dismiss an enhancement otherwise required to be imposed . . . .” 

(§ 12022.53, subd. (h); see Stats. 2017, ch. 682, § 2; § 1385.)

At sentencing, the trial court indicated that it had the authority to 

strike the gun allegation, but it had “five reasons why [it] thought it should 

not be stricken.” The court explained, “I never saw any lawful reason for the 

defendant to be armed before this shooting. There w[ere] a number of shots, 

the gap in time between the first series and the second series. The testimony 

of the witness, particularly Keith G[.], was that the defendant shifted his 

focus from Victim 1 to Victim 2, and he shot Victim 2 in the back.”

Subsequently, the trial court reiterated that it understood its discretion 

to strike Johnson’s firearm enhancements but was electing not to do so. The 

court clarified, “[T]o make the record real clear, I do have the legal authority 

to strike any or all of the gun allegations under the current law. And I’ve 

made a consc[ious] choice not to do that.” In response, Johnson’s trail counsel 

argued that there was evidence that the victims were approaching Johnson 

aggressively and that Johnson was standing his ground. The court clarified 

that it did consider those facts but “those factors . . . for not striking it 

completely overwhelm those few factors for striking” the enhancements. In 

addition, although the court considered running the sentence on count 3 

concurrently, it imposed the consecutive upper term for that count, after 

explaining at length the factors supporting that decision.

Here, Johnson argues the trial court misunderstood that the scope of 

its discretion was limited to either imposing or striking the 25-to-life 
30

enhancement, specifically as to count 3. He maintains the court also had the 

discretion to substitute one of the less severe enhancements if doing so was in 

the interests of justice. In support, he cites People v. Morrison (2019) 34 

Cal.App.5th 217 (Morrison). 

In Morrison, Division Five of the First District Court of Appeal 

concluded trial courts have “discretion to impose an enhancement under 

section 12022.53, subdivision (b) or (c) as a middle ground to a lifetime 

enhancement under section 12022.53, subdivision (d), if such an outcome [is] 

found to be in the interests of justice under section 1385.” (Morrison, supra, 

34 Cal.App.5th at p. 223.) The court relied on cases that authorize trial 

courts to “impose a ‘lesser included’ enhancement that was not charged in the 

information when a greater enhancement found true by the trier of fact is 

either legally inapplicable or unsupported by sufficient evidence.” (Id. at 

p. 222.) The court reasoned that a trial court’s striking of the greater 

enhancement in the interest of justice under section 1385 is akin to finding 

the enhancement unsupported or inapplicable. (Morrison, at pp. 222-223.) 

Thus, the court “s[aw] no reason a court could not also impose one of [the 

lesser] enhancements after striking an enhancement under section 12022.53, 

subdivision (d) . . . .” (Ibid.)

More recently, the Fifth District Court of Appeal reached a different 

conclusion in People v. Tirado (2019) 38 Cal.App.5th 637 (Tirado), review 

granted November 13, 2019, S257658. In that case, the appellate court 

grounded its analysis in statutory construction and legislative intent: 

“Nothing in the plain language of sections 1385 and 12022.53, subdivision (h) 

authorizes a trial court to substitute one enhancement for another. 

Section 12022.53, subdivision (h) uses the verbs ‘strike’ and ‘dismiss,’ and 

section 1385, subdivision (a) states the court may ‘order an action to be 
31

dismissed.’ This language indicates the court’s power pursuant to these 

sections is binary: The court can choose to dismiss a charge or enhancement 

in the interest of justice, or it can choose to take no action. There is nothing 

in either statute that conveys the power to change, modify, or substitute a 

charge or enhancement.” (Id. at p. 643.) “Had the Legislature intended to 

grant the trial court the power to modify or reduce a firearm enhancement, it 

would have done so with express language,” as it has done in other contexts. 

(Ibid.; see, e.g., § 1181, subd. (6) [in ruling on a motion for new trial, “if the 

evidence shows the defendant to be not guilty of the degree of the crime of 

which he was convicted, but guilty of a lesser degree thereof, or of a lesser 

crime included therein, the court may modify the verdict, finding or judgment 

accordingly without granting or ordering a new trial”]; § 1260 [granting 

appellate courts the power to “modify a judgment or order appealed from, or 

reduce the degree of the offense or attempted offense”].)

The court in Tirado also noted its approach was consistent with 

traditional principles reflecting prosecutorial authority to determine what 

charges to bring. (Tirado, supra, 38 Cal.App.5th at p. 644, review granted.) 

Thus, for example, if the prosecution had pled and proved all three firearm 

enhancements under section 12022.53, subdivisions (b) through (d), the trial 

court would have had the discretion to strike the greater enhancement and 

impose one of the lesser ones. (Tirado, at p. 644.) “However, because the 

People exercised their charging discretion to allege only one enhancement, 

the trial court was limited to either imposing or striking that enhancement.” 

(Ibid.)

Pending further guidance from our high court in Tirado, we subscribe 

to the view expressed by the Court of Appeal in that case, and decline to 

follow the holding of Morrison. Accordingly, we conclude the trial court 
32

properly understood the scope of its discretion in imposing the 25-to-life 

enhancement under section 12022.53, subdivision (d).6

IV

CUSTODY CREDITS

Johnson contends the abstract of judgment must be corrected to reflect 

the accurate number of custody credits. He claims the trial court erred in 

giving him 867 days total custody credits. Johnson maintains that he was 

arrested on July 25, 2016 and sentenced on March 18, 2019. As such, he 

asserts the court should have given him 967 days of custody credits.

The People agree there is a discrepancy in the record as to when 

Johnson was arrested in this case, and thus, this matter should be remanded 

to allow the trial court to calculate the correct number of custody credits. We 

therefore will remand this matter back to the superior court for the purpose 

of that court calculating the correct amount of presentencing custody credit 

Johnson should receive. (See People v. Taylor (2004) 119 Cal.App.4th 628, 

647; People v. Montalvo (1982) 128 Cal.App.3d 57, 62.)

6 We note that a recently published opinion rejected Morrison and 

followed Tirado. (See People v. Garcia (2020) 46 Cal.App.5th 786, 788, 790-

794, review granted June 10, 2020, S261772.)
33

DISPOSITION

This matter is remanded to the superior court with directions to 

correctly calculate the presentence custody credits Johnson should receive. 

In all other respects, the judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.