Opinion
E069759
10-17-2019
THE PEOPLE, Plaintiff and Respondent, v. RANDY JOHN MORASCH, Defendant and Appellant.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1400818) OPINION APPEAL from the Superior Court of Riverside County. Elaine M. Kiefer, Judge. Affirmed with directions. Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant and appellant, Randy John Morasch, guilty as charged in 22 of 23 counts, including one count of kidnapping to commit rape, oral copulation or sodomy (Pen. Code, § 209, subd. (b)(1); count 1), six counts of forcible oral sodomy (§ 286, subd. (c)(2)(A); counts 2, 3, 15, 16, 17 & 18), and seven counts of forcible oral copulation (§ 288a, subd. (c)(2)(A); counts 4, 5, 6, 10, 11, 12 & 13).
Undesignated statutory references are to the Penal Code.
The jury found "One Strike" law allegations true in 13 counts (§ 667.61, subds. (e)(4) [counts 2-6, 10-13, 15-18], (l) [count 1]), and found that defendant was armed with a firearm in counts 1 and 2 (§ 12022, subd. (a)(1)). The jury also convicted defendant of two counts of exhibiting harmful matter to a minor (§ 288.2, subd. (a)(2), counts 7 & 14), assault with a firearm (§ 245, subd. (a)(2); count 8), and being a felon in possession of a firearm (§ 29800, subd. (a)(1), count 19). The jury found that defendant personally used a firearm in count 8. (§§ 1192.7, subd. (c)(8), 12022.5, subd. (a).) The jury acquitted defendant of shooting at an occupied vehicle as charged in count 9. (§ 246.)
Counts 1 through 9 involved one victim, John Doe A.B. and counts 10 through 18 involved another victim, John Doe P.N. Defendant was further convicted in counts 20 and 21 of dissuading A.B. and P.N. as witnesses (§ 136.1, subd. (a)(2)) and in counts 22 and 23 of soliciting the murders of A.B. and P.N. (§ 653f, subd. (b)(1)). The court found defendant had a 1993 first degree burglary conviction (§ 459), which constituted both a prior strike (§ 667, subds. (b)-(i)) and a prior serious felony conviction (§ 667, subd. (a)).
On January 4, 2018, defendant was sentenced to 64 years, plus life without parole, plus 360 years to life in state prison. His sentence includes a five-year term for his prior serious felony conviction. (§ 667, subd. (a).) The court awarded defendant 1,479 days of presentence custody credits (1,286 days of actual credits plus 193 days of conduct credits). (§ 2933.1.)
Defendant's aggregate sentence is comprised of life without parole on count 2; one year for the firearm enhancement on count 2; 30 years to life (doubled based on the prior strike) on counts 3, 4, 5, 6, 10, 11, 12, 13, 15, 16 17 and 18; the upper term of eight years on count 8, plus 10 years for the firearm enhancement on count 8; one-third the middle term of 16 months (doubled based on the prior strike) on counts 7, 14, and 19; the middle term of six years (doubled based on the prior strike) on counts 20 and 21; the middle term of 12 years (doubled based on the prior strike) on counts 22 and 23; and five years for the prior serious felony conviction. Sentence on count 1 was stayed because the court found count 2 involved the same conduct. (§ 654.) The court expressly declined to exercise its discretion to strike the firearm enhancements (§ 12022.5), noting that defendant's conduct "show[ed] a high degree of callousness and viciousness in the use of the weapon and the handguns in this case."
In this appeal, defendant claims: (1) the court erroneously denied his pretrial motion to suppress a letter he wrote directing his stepson, D.J. Harrison, to dissuade A.B. and P.N. as witnesses by threatening to kill them, and if that did not work to kill them by one of two possible means; (2) he was erroneously convicted of two counts of solicitation of murder rather than one count, for soliciting the murders of A.B. and P.N., and the court erroneously imposed consecutive terms on his two convictions for murder solicitation (counts 22 & 23), and should have stayed one of the terms on the two counts in light of the other term; (3) the matter must be remanded for the court to exercise its discretion not to impose a five-year term on his prior serious felony conviction, or to strike the enhancement for sentencing purposes, in the interests of justice (§ 1385, subd. (b)); and (4) the court miscalculated his presentence custody credits, and he is actually entitled to 1,494 days of credits, 15 days more than the 1,479 days he was awarded.
We conclude that the suppression motion was properly denied and that substantial evidence supports the jury's determination that defendant committed two separate counts of murder solicitation, rather than one count. The People claim, and we agree, that it is unnecessary to remand the matter for resentencing on defendant's prior serious felony conviction, because at sentencing, the court clearly indicated it would have imposed the five-year term on the enhancement even if it had discretion not to do so. The People concede the error in calculating defendant's custody credits. Thus, we modify the judgment to award defendant an additional 15 days of presentence custody credits, for a total of 1,494 days, rather than 1,479 days. We affirm the judgment in all other respects.
II. DISCUSSION
A. The Motion to Suppress the Solicitation Letter Was Properly Denied
Defendant claims the court erroneously denied his pretrial motion to suppress a letter he sent from jail (at times, the solicitation letter), asking or directing his stepson, D.J. Harrison, to dissuade A.B. and P.N. as witnesses, and if that did not work, to kill them by giving them poisoned methamphetamine or to "put them deep, never to be found." (§ 1538.5, subd. (i).) Defendant claims the admission of the letter violated his Fourth Amendment rights against unreasonable searches and seizures because the letter was taken from the garage of his "Secret Falls" home, without a warrant, by Paul Dunfee, a private citizen who was acting as an agent of law enforcement. We conclude the suppression motion was properly denied.
1. Relevant Background/the Suppression Motion and Hearing
Before trial, defendant moved to suppress the solicitation letter, claiming Dunfee was acting as an agent of law enforcement when he retrieved the letter from the garage of defendant's Secret Falls home and gave it to law enforcement investigators. The People filed opposition. At the hearing on the motion, Riverside County Sheriff's Investigators Christopher Porrazzo and Marek Janecka testified for the prosecution. Dunfee testified for the defense.
Another witness and Dunfee testified about powers of attorney that defendant had given them, but this evidence is not relevant to defendant's claims on appeal.
(a) Prosecution Evidence
On September 3, 2014, when defendant was in jail on the charges of forcibly molesting A.B. and P.N. when they were under age 18, Investigators Porrazzo and Janecka executed a search warrant at a property that defendant was renting on Secret Falls Road in Anza (the Secret Falls property). The investigators were looking for a letter (the solicitation letter) that defendant had sent from jail to Debra Suit, the mother of defendant's stepson, D.J. Harrison. In recorded jail calls, defendant had talked about the letter, and the investigators believed it contained details of a conspiracy or plan between defendant, Harrison, and possibly others to murder A.B. and P.N. The letter was not found during the September 3 search of defendant's Secret Falls property.
On September 3, defendant's friend, Dunfee, was living at the Secret Falls property, and the investigators found Harrison on the property after Harrison initially ran when the investigators arrived. Later on September 3, the investigators interviewed Harrison to establish his "knowledge and involvement" with defendant's alleged plan to kill A.B. and P.N. Based on defendant's recorded jail calls, Harrison's interview, and the fact Harrison had recently threatened A.B. or P.N., Harrison was arrested for conspiracy to commit murder.
On September 4, Dunfee was in custody at the Hemet sheriff's station concerning a stolen vehicle which Dunfee claimed belonged to him and which the investigators found at the Secret Falls property during the September 3 search. The investigators interviewed Dunfee concerning the stolen vehicle and to discover whether Dunfee was involved in defendant's plan to kill A.B. and P.N. During the interview, the investigators made it clear to Dunfee that they were looking for the solicitation letter. Dunfee acknowledged having seen the letter and the investigators "bluff[ed]" Dunfee by implying they, too, had seen the letter. Dunfee asked the investigators whether they needed his help or wanted him find the letter for them, and they told him "no." Near the end of the interview, Dunfee again asked if they wanted him to "do [anything] out there" at the Secret Falls property, and Investigator Janecka said, "Not yet." The investigators did not instruct Dunfee to find the letter, nor did they agree not to arrest or prosecute Dunfee in exchange for Dunfee's help. But during the interview, Investigator Janecka told Dunfee he was "in trouble" concerning the stolen vehicle, and at the conclusion of the interview Dunfee was released from custody.
On September 9, Dunfee contacted Investigator Porrazzo and told him he had the solicitation letter. According to Investigator Janecka, Harrison told Dunfee to give the letter to the police. The investigators met Dunfee in a public parking lot in Aguanga where Dunfee gave them the letter. As the investigators expected, based on the contents of defendant's jail calls, the letter was in an envelope addressed to Harrison's mother, Suit, with Suit's return address. When he gave the investigators the letter, Dunfee said he hoped the letter would help Harrison avoid "taking the rap" for the plan to murder A.B. and P.N.
(b) Defense Evidence
Dunfee testified he began living at the Secret Falls property in July 2014; he had "the whole property" and was paying rent to defendant's mother. There were three mobile homes, a garage, and two storage sheds on the property. When the investigators arrived to search the property on September 3, 2014, Dunfee and Harrison were in the garage. When the investigators questioned Dunfee about his possession of a stolen vehicle, Dunfee said he had purchased the vehicle and had a bill of sale for it, but he agreed that the bill of sale was not to him. The investigators also questioned Dunfee about the solicitation letter defendant had sent from jail. They told Dunfee he was "in trouble" for the stolen vehicle, and Dunfee "guess[ed]" they believed he was connected to the letter.
But Dunfee claimed he "already knew" he was not going to be arrested for the stolen vehicle, and he "didn't want to see whether there was something [he] could do to help the police in exchange for [his] not being arrested." He denied there was any agreement that he would help the investigators in exchange for his not being arrested or prosecuted. He did not remember what he said during his interview; he read the interview transcript but it did not refresh his recollection. He was "higher than hell" on methamphetamine at the time of the interview.
Dunfee then testified that the investigators asked him to find the letter for them but they did not ask him to find the letter "at the Secret Falls house." He agreed to find the letter. When he found out where the letter was, he told the investigators and then he gave the letter to the investigators. He understood the letter would put Harrison "away for a long time," but he also believed that giving the letter to the investigators would help "clear" Harrison and get Harrison released from custody. He gave the investigators the letter to help Harrison, not to help himself. The letter was taped beneath a table in the garage at the Secret Falls house.
(c) The Trial Court's Ruling
The court denied defendant's motion to suppress the solicitation letter. The court found that Dunfee was not acting as an agent of law enforcement when he obtained the letter from the garage of the Secret Falls property and gave it to the investigators. The court also found that the investigators did not ask or encourage Dunfee to search for the letter, even if they knew that Dunfee would probably search for the letter. Lastly, the court found Dunfee had reason to find the letter independent of helping the investigators: to clear Harrison of involvement in defendant's plan to kill A.B. and P.N.
2. Standard of Review
"In ruling on [a suppression] motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] . . . [¶] The court's resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, viz., the reasonableness of the challenged police conduct, is also subject to independent review. [Citations.] The reason is plain: 'it is "the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness."'" (People v. Williams (1988) 45 Cal.3d 1268, 1301.)
3. Applicable Legal Principles
The legal principles applicable to defendant's suppression motion are settled and are well articulated in People v. Wilkinson (2008) 163 Cal.App.4th 1554; thus, we quote from Wilkinson: "The Fourth Amendment's prohibition against unreasonable searches and seizures does not apply to searches by private citizens, even if the private citizens act unlawfully, unless the private citizen can be said to be acting as an agent for the government. [Citations.] 'Whether a private citizen is acting as a de facto police officer is an issue of fact and thus an issue for the trial court.' [Citation.] [¶] . . . [¶]
"'Determining whether the requisite agency relationship exists "necessarily turns on the degree of the Government's participation in the private party's activities, . . . a question that can only be resolved 'in light of all the circumstances.'" [Citation.] This is . . . "a fact-intensive inquiry that is guided by common law agency principles." [Citation.] The defendant bears the burden of proving that an agency relationship exists. [Citation.]
"'In order to run afoul of the Fourth Amendment, therefore, the Government must do more than passively accept or acquiesce in a private party's search efforts. Rather, there must be some degree of Government participation in the private search. . . .
"'. . . [T]wo primary factors . . . should be considered in determining whether a search conducted by a private person constitutes a Government search triggering Fourth Amendment protections. These are: (1) whether the Government knew of and acquiesced in the private search; and (2) whether the private individual intended to assist law enforcement or had some other independent motivation. [Citations.] . . . [¶] . . . [¶]
"'[T]he first factor] require[s] evidence of more than mere knowledge and passive acquiescence by the Government before finding an agency relationship. [Citation.] . . . See, e.g., United States v. Smythe, 84 F.3d 1240, 1242-43 (10th Cir.1996) ("[K]nowledge and acquiescence . . . encompass the requirement that the government must also affirmatively encourage, initiate or instigate the private action." . . .); United States v. Koenig, 856 F.2d 843, 850 (7th Cir.1988) ("It is only by the exercise of some form of control that the actions of one may be attributed to another. Mere knowledge of another's independent action does not produce vicarious responsibility absent some manifestation of consent and the ability to control." . . .); [United States v.] Walther, 652 F.2d [788,] 792 [(9th Cir. 1981)] ("Mere governmental authorization of a particular type of private search in the absence of more active participation or encouragement is similarly insufficient to require the application of fourth amendment standards." . . .).
"'Viewed in the aggregate, then, three major lessons emerge from the case law. First, courts should look to the facts and circumstances of each case in determining when a private search is in fact a Government search. Second, before a court will deem a private search a Government search, a defendant must demonstrate that the Government knew of and acquiesced in the private search and that the private individual intended to assist law enforcement authorities. Finally, simple acquiescence by the Government does not suffice to transform a private search into a Government search. Rather, there must be some evidence of Government participation in or affirmative encouragement of the private search before a court will hold it unconstitutional. Passive acceptance by the Government is not enough.' [Citation.]" (People v. Wilkinson, supra, 163 Cal.App.4th at pp. 1564-1567, fn. omitted; U.S. v. Jarrett (4th Cir. 2003) 339 F.3d 344-346.)
4. Analysis
Defendant claims his motion to suppress the solicitation letter was erroneously denied because the totality of the circumstances show that Dunfee acted as an agent of law enforcement when he obtained the letter and gave it to the investigators. We disagree. Substantial evidence supports the trial court's determination that Dunfee was not acting as an agent of law enforcement when he retrieved the letter from the garage of defendant's Secret Falls property and gave it to the investigators. The investigators testified that they did not ask or instruct Dunfee to obtain the letter for them. They said "no" and "[n]ot yet" when Dunfee asked them, during his interview, whether they wanted him to obtain the letter for them or needed his help in finding the letter.
Although Dunfee testified that the investigators "ask[ed]" him to get the letter for them when they interviewed Dunfee, the court was entitled to discredit this part of Dunfee's testimony. The court noted that nothing in Dunfee's video- and audio-recorded interview supported this assertion. The court said: "In fact, just the opposite. [Dunfee] was told no by the officers, they were not asking him to do that. And Mr. Dunfee testified again that he was high on meth and doesn't have a clear memory."
The transcript of Dunfee's video- and audio-recorded interview was referred to during the suppression hearing, but neither the transcript nor the recording of the interview was admitted into evidence on the suppression motion.
Indeed, according to Dunfee, he was "higher than hell" on methamphetamine during his interview, and he did not recall what he said during the interview even after he read the transcript of the interview. Dunfee also steadfastly denied that there was any agreement that he would help the investigators in exchange for his not being arrested or prosecuted. Dunfee also claimed he "already knew" at the time of his interview that he was not going to be arrested for the stolen vehicle. The investigators testified they did not direct Dunfee to find the letter and did not agree not to arrest or prosecute Dunfee in exchange for his help.
Additionally, the court applied the correct constitutional standard in concluding that Dunfee did not act as an agent of law enforcement in obtaining the letter. Although the court said it was "pretty clear" that the investigators wanted the letter, the court said "that alone does not mean that when Mr. Dunfee found the letter or looked for the letter he was acting on behalf of law enforcement." We agree.
Other than Dunfee's testimony that the investigators asked him to find the letter for them, which the court was entitled to discredit, no evidence showed the investigators affirmatively encouraged, initiated, or instigated Dunfee in searching for or obtaining the letter. (People v. Wilkinson, supra, 163 Cal.App.4th at p. 1566.) As noted, "there must be some evidence of Government participation in or affirmative encouragement of the private search before a court will hold it unconstitutional. Passive acceptance by the Government is not enough." (U.S. v. Jarrett, supra, 339 F.3d at p. 346.) The court also noted, and substantial evidence shows, that Dunfee had an independent motivation to assist the investigators in obtaining the letter—to help Harrison avoid prosecution for participating in defendant's plan to kill A.B. and P.N. Dunfee expressly admitted he gave the letter to the investigators to help Harrison. Thus, the totality of the circumstances show that Dunfee did not act as an agent of law enforcement in obtaining the letter and giving it to the investigators.
Defendant argues that a reasonable person in Dunfee's position would have believed that the investigators "were willing to accept Dunfee's assistance and the trial court should have found [that Dunfee] acted as their agent . . . ." He argues the investigators exhibited "more than passive acceptance" when, near the end of Dunfee's interview, Investigator Janecka answered "[n]ot yet" when Dunfee asked whether the investigators wanted him to do anything "out there" at the Secret Falls property. We disagree. In view of the totality of the circumstances, the investigator's "[n]ot yet" answer did not amount to encouraging, much less ordering or directing, Dunfee to find the letter. The two investigators consistently told Dunfee "no" when he asked whether they need his help or wanted him to find the letter.
Defendant also argues "[t]he result should not change based on the trial court's finding that Dunfee had the dual intent of assisting Harrison" because, as the court in Wilkinson observed, "'the mere existence of an independent motive does not invalidate the agency relationship. The question turns on the level of government involvement.'" (People v. Wilkinson, supra, 163 Cal.App.4th at p. 1568, citing United States v. Cleaveland (9th Cir. 1994) 38 F.3d 1092, 1094.) But as discussed, the level of government involvement in Dunfee's search for the solicitation letter was insufficient to create an agency relationship between Dunfee and the investigators. The investigators consistently turned down Dunfee's offers to help the investigators find the letter. Thus, there was no agency relationship between Dunfee and the investigators. B. Defendant Was Properly Convicted of Two Counts of Solicitation of Murder, and Consecutive, Unstayed Terms Were Properly Imposed on Each Count
Defendant next claims he was "not properly convicted of two counts of solicitation of murder" because "[t]he record supports no more than a single solicitation to murder two people," namely, A.B. and P.N. Additionally, he claims that even if he was properly convicted of two counts of solicitation of murder (in counts 22 & 23), the trial court erroneously imposed consecutive rather than concurrent terms on the two counts and also erred in failing to stay the term on one of the counts pursuant to section 654. We disagree with each of these claims.
1. Defendant Was Properly Convicted in Counts 22 and 23
The information charged defendant in counts 22 and 23 with soliciting Harrison to commit the crime of murder, and neither the information nor the verdict forms identified the intended victims in counts 22 and 23. But the court's unanimity instruction told the jury that defendant was charged in count 22 with soliciting the murder of A.B. "sometime during August of 2014," and that defendant was charged in count 23 with soliciting the murder of P.N. "sometime during August 2014."
Any person who asks another to commit murder with the intent that the murder be committed is guilty of solicitation of murder. (§ 653f, subd. (b); People v. Cook (1984) 151 Cal.App.3d 1142, 1145 (Cook).) "The crime is complete once the request is made, and no steps need to be taken to consummate the target offense. [Citation.]" (People v Miley (1984) 158 Cal.App.3d 25, 33.) "It is immaterial that the [murder] is never accomplished, that no overt acts are taken toward its accomplishment, or even that the crime is impossible to accomplish." (Cook, supra, at p. 1145.) "'[T]he harm is in asking'" and the crime of solicitation is complete even if the person solicited rejects the solicitation. (People v. Wilson (2005) 36 Cal.4th 309, 328.)
Whether a defendant has committed one or several counts of murder solicitation is a question of fact which depends on the circumstances. (Cook, supra, 151 Cal.App.3d at p. 1146.) The focus is on the number of solicitations, not solely on the number of intended victims, but "if the evidence and the reasonable inferences from that evidence establish that the solicitee has been asked to commit separate and distinct acts of murder, that evidence is sufficient to establish separate solicitations." (Ibid.) Whether the solicitee has been asked to commit separate and distinct acts of murder is a factual inquiry requiring consideration of several factors, including whether the solicited murders involved different motives and were to occur at different times or by different means. (Id. at pp. 1146-1147; People v. Morocco (1987) 191 Cal.App.3d 1449, 1452.) As an appellate court, our task is to determine whether substantial evidence supports the jury's determination that the defendant committed not one but several counts of solicitation. (Cook, supra, at p. 1146; People v. Morocco, supra, at p. 1453.)
The jury was instructed on the elements of murder solicitation pursuant to CALCRIM No. 441. Among other things, the instruction told the jury that there were three elements to the crime: "To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant requested another person to commit or join in the commission of the crime of murder; [¶] 2. The defendant intended that the crime of murder be committed; [¶] AND [¶] 3. The other person received the communication containing the request."
The instruction also told the jury that if it found defendant guilty of murder solicitation, it then had to "decide how many crimes he solicited" and to consider several factors in determining this question: (1) whether the crimes solicited were "part of a plan with a single objective or motive," or whether "each crime solicited [had] a different objective or motive," (2) whether the crimes solicited were to be committed at the same time, (3) in the same place, (4) were to be committed in the same way, and (5) whether "the payment, if any, for the crimes solicited [was] one amount or were different amounts solicited for each crime?" The jury was instructed to "[c]onsider all of these factors when deciding whether the defendant's alleged acts were a single crime or two separate crimes of solicitation."
In Cook, the defendant solicited a person to kill four victims, and "[t]he reasonable inference from all the evidence was that these killings might have to occur at different times and places, and perhaps by different means." (Cook, supra, 151 Cal.App.3d at pp. 1146-1147.) Thus, in Cook, sufficient evidence supported the defendant's four convictions for murder solicitation. (Id. at p. 1147.) Here, too, substantial evidence shows, and the jury reasonably determined, that defendant committed two distinct solicitations and two counts of murder solicitation. Through the solicitation letter and his recorded jail calls, defendant solicited Harrison to murder two victims, A.B. and P.N., and the record shows that the two murders were to be committed at different times and places, and possibly by different means. Defendant also had independent motives for soliciting each murder: to eliminate both A.B. and P.N. as witnesses against defendant. As noted, counts 1 through 9 involved A.B., and counts 10 through 18 involved P.N. A.B. and P.N. each had distinct testimony to offer on these separate charges.
In the solicitation letter and in his jail calls, defendant outlined two plans for murdering A.B. and P.N., denoted "Plan B" and "Plan C." Harrison was to pursue Plans B and C if "Plan A" did not work. Plan A was to confront P.N. and A.B. at their separate homes, on separate occasions, and threaten to kill their family members unless each of them agreed to retract incriminating statements they had each made against defendant. Plan B was to get a container of methamphetamine (i.e., a "tener of shit"), mix it with poison (i.e., a "tener of [poison]"), split the mixture in two, put it in baggies, put one baggy by the "Tripp Flats" property gate, where P.N. lived and would find it before he went to work, and to put the second baggie by A.B.'s vehicle, a 5.0 Mustang, outside A.B.'s home, in a different location. The baggies were to contain enough poison "to end them with one line." Plan C was simply: "Put them deep never to be found." It is unclear whether Plan C was an alternative to Plan B or was to be executed in addition to Plan B. In any event, the murders would necessarily have occurred at different times and places, and defendant had separate and independent motives for soliciting each murder.
Relying on Morocco, defendant argues, "solicitation to murder more than one intended victim with a single motive encompassing each intended victim constitutes a single crime." (Bolding omitted.) Morocco is distinguishable. There, the appellate court concluded that insufficient evidence supported the jury's guilty verdict on two counts of murder solicitation. (People v. Morocco, supra, 191 Cal.App.3d at p. 1454.) The court reasoned: "The potential victims were a husband and wife. They were to be killed at the same time, presumably by the same means. The record is very unclear as to Morocco's motive in soliciting the killings, but there is certainly no suggestion of an independent motive or objective as to each victim. Whatever the distorted plan Morocco fashioned, it appears to have encompassed both [the husband and wife]." (Ibid.) Indeed, the evidence in Morocco showed that the defendant's motive for killing the husband was that the defendant believed the husband was responsible for the defendant's having been severely beaten in connection with a business deal. (Id. at p. 1451 & fn. 2.) Although the wife was the defendant's former wife, the defendant ostensibly had no motive for killing the wife—independent of his motive for killing the husband. In contrast to Morocco, the murders of A.B. and P.N. would necessarily have occurred at different times and places, and possibly by different means. Moreover, defendant had independent motives for soliciting the murders of A.B. and P.N., because each of them had independent testimony to offer against defendant which supported different charges.
2. Separate, Consecutive Terms Were Properly Imposed on Counts 22 and 23
Defendant next argues that the court erroneously imposed separate, consecutive terms on his two convictions for murder solicitation in counts 22 and 23. He argues the record shows the court did not understand that it had discretion to impose concurrent terms on these counts, and one of these imposed terms should have been stayed under section 654. These claims are unavailing.
The record does not show that the court did not understand that it had discretion to impose concurrent rather than consecutive terms on counts 22 and 23. Thus, we presume that the court understood it had this discretion. (See People v. Martinez (2017) 10 Cal.App.5th 686, 728 [a judgment or order is presumed correct on appeal, and error must be affirmatively shown].) Nor has defendant shown that the court abused its discretion in imposing consecutive terms on these counts.
3. The Term on Count 22 or 23 Was Not Required to Be Stayed
Defendant alternatively claims the court was required to stay either the 12-year consecutive term on count 22, or on count 23, pursuant to section 654. We disagree. The Cook court rejected the same argument regarding the defendant's four convictions for murder solicitation, and its reasoning applies here: "Section 654 does proscribe double punishment where there is an indivisible course of conduct which gives rise to more than one violation of the same Penal Code section. [Citations.] However, the section is not applicable where an act or course of conduct results in crimes of violence against separate persons, because the purpose of the protection against multiple punishment is to insure that punishment is commensurate with criminal liability. 'A defendant who commits an act of violence with the intent to harm more than one person . . . is more culpable than a defendant who harms only one person.' [Citation.] We conclude that the same principle should govern here. Although appellant did not actually commit an act of violence, he solicited the commission of four separate violent acts. Surely he is more culpable than would be a person who solicited only one such act. Accordingly, whether or not appellant engaged in an indivisible course of conduct, multiple punishment is appropriate and not prohibited by section 654." (Cook, supra, 151 Cal.App.3d at p. 1147.) Likewise here, defendant solicited the commission of two separate violent acts—the violent murders of A.B. and P.N., at different times and in different places—and he is more culplable than a person who solicited only one such violent act, even if he engaged in an indivisible course of conduct in soliciting the two violent acts. C. Resentencing on Defendant's Prior Serious Felony Conviction Would Be Futile
Defendant next claims the matter must be remanded for resentencing on his prior serious felony conviction (§ 667, subd. (a)) in light of the enactment of Senate Bill No. 1393 which, effective January 1, 2019, amended sections 667, subdivision (a) and 1385, subdivision (b) to give trial courts discretion, which they previously did not have, not to impose a five-year term on a prior serious conviction. (Stats. 2018, ch. 1013, §§ 1-2.)
As the parties agree, Senate Bill No. 1393 applies retroactively to all cases not yet final when it became effective on January 1, 2019. (People v. Garcia (2018) 28 Cal.App.5th 961, 971-972.) This includes defendant's case. But as the People argue, remand for resentencing on defendant's prior serious felony conviction is unnecessary because it would be futile. The court's comments at sentencing show it would not have declined to impose a five-year term on defendant's prior serious felony conviction, nor would it have stricken the conviction for sentencing purposes in the interests of justice, had it had the discretion to do so when defendant was sentenced on January 4, 2018. (§ 1385, subd. (b).)
It is unnecessary to remand a matter to allow the trial court to exercise its discretion to strike a sentencing enhancement, or decline to impose punishment on the enhancement if, as here, "the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] enhancement" had it had the discretion to do so. (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) Additionally, "[t]he trial court need not have specifically stated at sentencing it would not strike the enhancement if it had the discretion to do so. Rather, we review the trial court's statements and sentencing decisions to infer what its intent would have been." (People v. Jones (2019) 32 Cal.App.5th 267, 273.)
Near the outset of defendant's sentencing hearing on January 4, 2018, before the court imposed sentence on any of defendant's 22 convictions and various enhancements, the court pointed out that "[d]efendant's conduct over the course of these years with regard to each of these victims [A.B. and P.N.] indicates to the Court that the defendant's behavior and actions toward these victims was predatory. He has shown absolutely no remorse. After victimizing each of these young men, he then sought to victimize them once again and attempted to garner, by bullying and cajoling and threatening other witnesses to then try and kill these two victims. [¶] The defendant's conduct was egregious. After listening to the defendant for what seemed like hours on various jail calls, it is clear to the Court that this is someone who operates out of a clear manipulative and malignant pattern of behavior that clearly indicates to the Court he will continue to be a danger to society. [¶] And so the Court, having heard the various unspeakable crimes that this defendant has inflicted on these two young men, . . . is going to select the upper term. . . ." The court also recognized that it had discretion to strike defendant's section 12022.5 firearm enhancement on count 2, pursuant to Senate Bill No. 620, which became effective on January 1, 2018. But the court declined to strike the firearm enhancement, explaining that "defendant's conduct shows a high degree of callousness and viciousness in the use of the weapon . . . ."
The court's comments at sentencing clearly indicate that the court would not have stricken defendant's prior serious felony conviction, in the interests of justice, had it had the discretion to do so. Nor does the record reveal any reason to believe the court would, on remand, exercise its new discretion to strike the enhancement for sentencing purposes, now that it has the discretion to do so. (§ 1385, subd. (b).) D. Defendant Is Entitled to an Additional 15 Days of Presentence Custody Credits
Lastly, defendant argues, and the People and we agree, that the court miscalculated defendant's presentence custody credits by relying on an incorrect date of defendant's arrest, and the judgment must be modified to award defendant an additional 15 days of presentence custody credits.
At the sentencing hearing on January 4, 2018, defendant was awarded 1,479 days of presentence custody credits, consisting of 1,286 days actually served, plus 193 days of conduct credits. (§ 2933.1.) This calculation was based on an arrest date for defendant of June 27, 2014, which was reflected in the probation officer's sentencing memorandum. But the evidence at trial showed that defendant was arrested in Sacramento on June 16, 2014, and remained in custody there until he was transferred to the custody of the Riverside County Sheriff's Department on June 27, 2017.
A defendant is entitled to custody credits for the day of his or her arrest, for the day he or she is sentenced, and for all days in between. (§ 2900.5; People v. Browning (1991) 233 Cal.App.3d 1410, 1412; People v. Smith (1989) 211 Cal.App.3d 523, 525-527.) Defendant was in presentence custody from June 16, 2014, to January 4, 2018, a total of 1,299 days, not 1,286 days. He was also entitled to 195 days, not 193 days, of conduct credits (1,299 x 15% = 195), or total credits of 1,494 days (1,299 + 195 = 1,494).
III. DISPOSITION
The judgment is modified to award defendant a total of 1,494 days of presentence custody credits (1,299 actual days, plus 195 conduct days). The matter is remanded to the trial court with directions to prepare a supplemental sentencing minute order and an amended abstract of judgment reflecting this modification, and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. McKINSTER
J.