Filed 12/6/19 P. v. Rivera CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

ARNULFO RIVERA, JR.,

Defendant and Appellant.

A151733

(Contra Costa County

Super. Ct. No. 05-161310-8)

A jury convicted defendant Arnulfo Rivera, Jr. of corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)), assault with a deadly weapon (a knife) (§ 245, subd. (a)(1)), making criminal threats (§ 422, subd. (a)), including one count involving the personal use of a deadly weapon (§ 12022, subd. (b)(1)), and dissuading a witness by force or threat (§ 136.1, subd. (c)(1)). The jury also found prior felony conviction allegations to be true. Sentenced to an aggregate prison term of 35 years to life, defendant appeals. He contends the trial court erred in denying his motion for new trial based on juror misconduct, there was insufficient evidence of a criminal threat, and the court erred in failing to instruct on the lesser included offense of attempted criminal threat. He also asserts that the court failed to award conduct credits at sentencing and that the case must be remanded for resentencing in light of Senate Bill No. 1393 (2017 2018 Reg. Sess.) (Senate Bill 1393), which gives trial courts the discretion to strike sentencing enhancements under section 667, subdivision (a). We reverse one of the criminal threat convictions for failure to instruct on the lesser included attempt offense. The People acknowledge, and we agree, that defendant is entitled to conduct credits and that the matter should be remanded for resentencing in accordance with the new legislation. We otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2016, the district attorney filed an amended information charging defendant with the following counts: corporal injury on a cohabitant (§ 273.5, subd. (a); count 1); assault with a deadly weapon (§ 245, subd. (a)(1); counts 2 & 6); criminal threats (§ 422, subd. (a)) with the personal use of a deadly weapon (§ 12022, subd. (b)(1); count 3); dissuading a witness by force or threat (§ 136.1, subd. (c)(1); count 4); and criminal threats (§ 422, subd. (a); count 5.) It was further alleged that he had two prior serious felony convictions (§ 667, subd. (a)(1)), two prior strike convictions (§§ 667, subds. (d), (e); 1170.12, subds. (b), (c)), and three prior prison term convictions (§ 667.5, subd. (b)).

The majority of the counts related to a violent incident which occurred on July 15, 2016. B.F. testified at trial that she met defendant when they were attending a recovery program. They had been in a relationship for four and a half years at the time of the offense. They moved in together in December 2011. Defendant was violent with her on a couple of occasions during their first year, but in general the relationship was okay. After they moved to Oakley in January 2013, defendant’s violence increased. B.F. estimated he had physically assaulted her around 25 to 40 times.

B.F. said she and defendant had been drinking alcohol on the day of the incident. They argued about money and he eventually demanded her ATM debit card. He threw her purse and then threw her to the floor and pulled her by her hair. After she picked up her purse and sat on the couch he began “ranting and raving,” kicking her a few times and slapping her face about five to 10 times. He wrapped his hands around her neck as if to choke her. He then went to the kitchen and got a knife and pointed it at her throat, telling her that he wanted to slice her and kill her. He soon calmed down and went outside.

B.F.’s friend, H.L., testified that B.F. had called her several times that day. During one conversation, H.L. overheard defendant say something like: “ ‘If you’re calling the cops, and I go to jail, I’m going to kill your kids, your mother and you, to make it worth my time.’ ” Defendant took B.F.’s phone and she told him she had been talking to her daughter. B.F. called H.L. a few hours later and said defendant had just beaten her. She sounded nervous and fearful. She said he had dragged her by her hair and had kicked her so severely that she feared for her life. H.L. called 911.

B.F. testified at trial she had called H.L. after defendant went outside to let her know what had just happened. Defendant came back inside and demanded to know who was on the phone. B.F. said it was her daughter. The police arrived soon thereafter. The jury was shown photographs taken that day which revealed bruising and swelling on the left side of B.F.’s face. Injuries to the right side of her face occurred the night before when she accidentally bumped into a door frame. The jury also saw photographs of injuries to her arms and her abdomen. B.F. described several prior incidents in which defendant had beaten or kicked her.

Officer Amber McCrea-Cook arrived at B.F.’s house on the night of the incident. B.F. repeatedly stated that she was afraid defendant was going to kill her. She had swelling to her left cheek and eye area, swelling to her right forearm, bruises to both arms and two faint red lines across the front of her neck. B.F. repeated to McCrea-Cook that defendant had punched her multiple times in the face, pulled her to the ground by her hair, kicked her, and strangled her. He also held a kitchen knife to her neck and said that if she called the police he would kill her.

Detective Scott Griggs met with B.F. a few days after the incident. She told him that they argued over money and defendant had slapped her, kicked her, choked her, and had pressed a knife against her neck and threatened to cut her. Griggs also spoke with H.L., who told him that she had heard defendant threatening B.F. over the phone.

Defendant stipulated at trial to several prior convictions, including a 2007 conviction for felony criminal threats against a former girlfriend (§ 422), a 2000 conviction for felony false imprisonment by violence or menace against an ex-spouse (§§ 236/237), a 1998 conviction for misdemeanor spousal battery (§ 243, subd. (e)(1)), another 1998 conviction for misdemeanor injuring a spouse (§ 273.5), and a 1995 conviction for misdemeanor assault likely to produce great bodily injury (§ 245, subd. (a)(1)).

On December 6, 2016, a jury convicted appellant on counts 1 through 5, acquitting him on count 6. The next day, the jury found true the 2007 prior conviction for criminal threat and found one of the prior prison term allegations to be not true. The jury was unable to reach unanimous verdicts on the remaining prison priors and the strike/serious prior felony allegation. The court declared a mistrial as to those enhancements. The following month, defendant moved for a new trial based on allegations of juror misconduct. The court denied the motion.

The prosecution elected not to retry the two remaining prior prison term allegations. Retrial commenced on the remaining strike/serious prior felony allegation. On March 2, 2017, the jury found the allegation to be true. The trial court sentenced defendant on count 2 to a term of 25 years to life as a third strike offense. Sentences of 25 years to life on the remaining counts were imposed but stayed under section 654. A consecutive 10-year sentence was imposed comprised of five years each for the two serious felony enhancements. The total sentence was thus 35 years to life. Defendant was awarded 341 days of presentence credits for actual time served but was not awarded any conduct credits. This appeal followed.

DISCUSSION

I. Motion for New Trial

Defendant’s motion for a new trial was supported by a declaration of the juror foreperson. The foreperson addressed comments made by several jurors during deliberations, but only one comment is relevant to this appeal. The foreperson declared: “Juror #10 told the other jurors during deliberations that she once had a family member pull a knife on her and she (Juror #10) purposely did not tell the police this piece of information because she knew what the consequences would be for that family member. Juror #10 told this story in the context of trying to convince other jurors why [B.F.] did not initially report certain things to the police that she later testified to during the trial.”

Defendant emphasized to the trial court that Juror No. 10 did not disclose that she had been the victim of domestic violence involving a knife in the juror questionnaire or during voir dire. The prosecution opposed the motion, contending that the questions posed to the jurors were not specific enough to elicit this particular information and that Juror No. 10’s omissions were not, in any event, intentional or evidence of prejudice. Following a hearing, the trial court found no prejudicial misconduct had occurred and denied the motion. Because the voir dire transcript was not available at the time the motion was heard, the court declined to make factual findings.

Defendant contends two types of misconduct occurred in this case, both involving Juror No. 10. The first claim of misconduct relates to the concealment of information during voir dire. The second claim relates to the sharing of improper information with other jurors during deliberations. Defendant contends reversal is warranted because the credibility of B.F.’s and H.L.’s trial testimony was a central focus for the defense. We disagree.

a. Relevant Law
b.
The law concerning juror concealment at voir dire is well settled. “We begin with the general proposition that one accused of a crime has a constitutional right to a trial by impartial jurors. [Citations.] ‘ “The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to trial by jury guaranteed by the Constitution.” ’ ” (In re Hitchings (1993) 6 Cal.4th 97, 110 (Hitchings).) Our Supreme Court has recognized that voir dire is essential to safeguarding the constitutional right to fair and unbiased proceedings. “ ‘Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored. Without an adequate voir dire the trial judge’s responsibility to remove prospective jurors who will not be able impartially to follow the court’s instructions and evaluate the evidence cannot be fulfilled. [Citation.] Similarly, lack of adequate voir dire impairs the defendant’s right to exercise peremptory challenges where provided by statute or rule.’ ” (Hitchings, at p. 110.)

“ ‘A juror who conceals relevant facts or gives false answers during the voir dire examination . . . undermines the jury selection process and commits misconduct.’ ” (In re Boyette (2013) 56 Cal.4th 866, 889 (Boyette), citing Hitchings, supra, 6 Cal.4th at p. 111.) “Such misconduct includes the unintentional concealment, that is, the inadvertent nondisclosure of facts that bear a ‘ “ ‘substantial likelihood of uncovering a strong potential of juror bias.’ ” ’ ” (In re Manriquez (2018) 5 Cal.5th 785, 797 (Manriquez), citing Boyette, at p. 889.) “An unintentional concealment caused by an honest mistake during voir dire, however, ‘cannot disturb a judgment in the absence of proof that the juror’s wrong or incomplete answer hid the juror’s actual bias. Moreover, the juror’s good faith when answering voir dire questions is the most significant indicator that there was no bias.’ ” (Manriquez, at pp. 797–798, citing In re Hamilton (1999) 20 Cal.4th 273, 300; see People v. Wilson (2008) 44 Cal.4th 758, 823 [“ ‘Although intentional concealment of material information by a potential juror may constitute implied bias justifying his or her disqualification or removal [citations], mere inadvertent or unintentional failures to disclose are not accorded the same effect’ ” and should be analyzed based upon “whether the juror is sufficiently biased to constitute good cause” for removal of the juror.].)

“Although juror misconduct raises a presumption of prejudice [citations], we determine whether an individual verdict must be reversed for jury misconduct by applying a substantial likelihood test. That is, the ‘presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant.’ [Citation.] In other words, the test asks not whether the juror would have been stricken by one of the parties, but whether the juror’s concealment (or nondisclosure) evidences bias.” (Boyette, supra, 56 Cal.4th at pp. 889–890.) Finally, a juror evidences actual bias if he or she has “a state of mind . . . in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.” (Code Civ. Proc., § 225, subd. (b)(1)(C); see Manriquez, supra, 5 Cal.5th at p. 799.)

c. No Evidence of Juror Misconduct
d.
Defendant first contends the trial court erred because it held that he had failed to establish prejudicial misconduct. Defendant argues this was error because a defendant is not required to establish prejudice if misconduct is shown. Rather, misconduct raises a presumption of prejudice that the prosecution is required to rebut. Defendant has skipped a step in the analysis. He bears the initial burden of demonstrating that Juror No. 10 failed to disclose material information that had been requested of her in voir dire. If he can establish a material nondisclosure amounting to juror misconduct, only then is he entitled to a rebuttable presumption of prejudice. Whether juror misconduct has been established and whether the defendant was prejudiced by any misconduct are questions subject to our independent review, accepting the trial court’s credibility determinations and findings of historical fact when supported by substantial evidence. (People v. Gamache (2010) 48 Cal.4th 347, 396; People v. Ault (2004) 33 Cal.4th 1250, 1261–1263; People v. Nesler (1997) 16 Cal.4th 561, 582.)

We conclude defendant has not carried his burden of showing any juror misconduct had occurred in this case. Our analysis begins with the observation that the parties have presented a very muddled account of what Juror No. 10 actually stated in response to voir dire questioning. While the parties make reference to Juror No. 10’s jury questionnaire, neither defendant nor the People have cited to the portion of the record containing the actual questionnaire that she filled out. Because the questionnaires filled out by the empaneled jurors are not identified by name or juror number, we are unable to independently verify that she answered the questionnaire inappropriately. Similarly, while the record includes the voir dire transcript, defendant does not direct us to any of Juror No. 10’s responses. The absence of such evidence is significant, as responses to questions that fail to make clear “what information counsel was soliciting . . . or how it could be answered” may not reasonably be construed as concealment. (People v. Jackson (1985) 168 Cal.App.3d 700, 705.) Because it is defendant’s burden to prove misconduct occurred (In re Carpenter (1995) 9 Cal.4th 634, 657), and a court will not presume greater misconduct than the evidence shows (People v. Lewis (2001) 26 Cal.4th 334, 390), defendant’s evidentiary showing is inadequate to show misconduct.

Defendant argues that the questions from the jury questionnaire “were sufficiently specific to elicit a response from Juror No. 10 that a family member pulled a knife on her.” He asks us to conclude that since no juror disclosed a knife incident involving a family member in response to a questionnaire or during voir dire, this nondisclosure amounts to juror misconduct. In order to make out a case of concealment, however, the voir dire questioning must be “sufficiently specific to elicit the information which is not disclosed.” (People v. Blackwell (1987) 191 Cal.App.3d 925, 929 (Blackwell).) The questioning here falls short of the mark. Question 24 of the jury questionnaire asked, “Have you, a family member, or friend ever been the victim of any violent crime?” Other questions asked whether the potential jurors or anyone close to them had ever been a victim of domestic violence, or witnessed domestic violence or any crime of violence. Defendant asserts that since Juror No. 10’s experience “involved an assailant pulling a knife on her,” and that assailant was a family member, she was the victim of a violent crime and her experience constituted “domestic violence.” As the People point out, however, neither “violent crime” nor “domestic violence” was ever defined or explained to the jury venire in any way that would suggest a one-time incident with a family member (and one that appears not to have resulted in injury) would be experienced by Juror No. 10 as a violent crime or a domestic violence incident.

Questioning during voir dire was similarly nonspecific as to the alleged omission. The charges presented to the jury venire described an assault and other offenses committed by defendant against his romantic partner. Questions that touched upon the subject of domestic violence referred to partner-on-partner abuse, and potential jurors who disclosed an experience with domestic violence all discussed incidents between domestic partners. Nothing about this line of questioning would seem to prompt a disclosure about a family member—not one’s significant other or partner—once brandishing a knife on a juror.

The cases relied upon by appellant, People v. Diaz (1984) 152 Cal.App.3d 926 (Diaz) and Blackwell, supra, 191 Cal.App.3d 925, illustrate the paucity of evidence of juror misconduct in this case as compared to those examples. The defendant in Blackwell was a woman convicted of murdering her husband, who presented a defense of “ ‘battered wife syndrome.’ ” (Id. at p. 927.) After the verdict was rendered, it was discovered that a female juror (juror R.) had not disclosed in voir dire questioning that she had been the victim of an abusive relationship by a former husband who became physically violent when he drank. (Id. at p. 928.) In response to general and collective questions about alcoholism and domestic violence followed by individual questions posed to juror R., she specifically and repeatedly denied that she had experienced domestic or spousal violence in her family and denied that anyone in her family had difficulties with alcohol. (Ibid.) In support of a new trial motion, the defendant submitted a declaration from juror R., who revealed her domestic violence history and declared, “ ‘Based upon my personal experiences, it is my opinion that [followed by a description of juror R.’s personal views on battered wives].’ ” (Ibid.) The appellate court found that the questioning by counsel and the trial court during voir dire was sufficiently clear to alert juror R. to provide information about her own experiences. (Id. at p. 929–930.) Having failed to do so, she committed prejudicial misconduct. “[The defendant’s] defense was that her husband’s abusive conduct caused her to entertain an honest, even if unreasonable, belief in the necessity to defend herself against imminent bodily injury. [Citation.] Juror R.’s affidavit reveals her bias: when confronted with a situation similar to [the defendant’s], she was able to escape an abusive husband without resort to physical violence or self-defense. She felt that if she could do so appellant should have governed herself accordingly. As a consequence, the presumption of prejudice is even stronger.” (Id. at p. 931.)

In Diaz, the defendant was convicted of assault with a deadly weapon (§ 245, subd. (a)), a knife. On appeal he claimed he was denied an impartial jury because the trial court did not discharge the jury foreperson upon learning she had concealed her history of having been assaulted at knifepoint during an attempted rape. (Diaz, supra, 152 Cal.App.3d at pp. 929–930, 931.) During voir dire, the court informed the prospective jurors that the defendant was alleged to have assaulted a victim with a knife by means of force likely to produce great bodily injury. The court then asked if anyone has been “ ‘a victim in a case of this kind?’ ” (Id. at p. 930, italics omitted.) The offending juror did not respond. Later it was discovered that the juror had been a victim of an attempted rape in which the assailant held a knife on her, gashed her chin, and she escaped and hunted the assailant down, stabbing him in retaliation. (Id. at p. 931.) The reviewing court held “the juror’s failure to correctly respond to voir dire questions having a substantial likelihood to disclose facts showing a strong potential for juror bias prevented [the defendant] from intelligently inquiring into an area of potential bias upon which to base a challenge for cause or to knowingly exercise one of his remaining peremptory challenges.” (Id. at p. 930.) Judgment was reversed “[b]ecause the concealment of the fact the juror had been a victim of the same crime with which [the defendant] was charged is so directly related to potential juror bias and because the presumption of prejudice arising from the jury misconduct has not been rebutted.” (Ibid.)

Diaz and Blackwell are clear examples in which material information was concealed by jurors in response to specific questioning during voir dire. The same cannot be said for the instant appeal, where Juror No. 10’s actual responses to questions have not been identified in the record and where questions about domestic violence or violent crime would not necessarily prompt disclosure of a one-time incident with a family member. It is true that one of the charges read to the jury venire involved an assault with a deadly weapon, a knife, and the trial court asked: “Is there anything about the subject matter of any of those charges which has touched on your own life or the life of anyone close to you in any significant way?” While this presents a closer question, we conclude defendant has not carried his initial burden of establishing concealment.

There is no evidence that the circumstances surrounding the encounter with Juror No. 10 bore any similarity to the facts underlying defendant’s charges. More to the point, nothing in the record discloses the time, place, or circumstances giving rise to the incident involving Juror No. 10, no information regarding the assailant’s relationship to the juror, his or her motivation in brandishing a knife, or whether it resulted in any law enforcement activity. In short, there is no way to know whether Juror No. 10 might have perceived the incident as an assault with a deadly weapon.

Even assuming Juror No. 10 should have disclosed her prior experience with her family member, prejudice against the defendant cannot reasonably be inferred from her failure to do so. The touchstone of juror concealment analysis is whether there is a substantial likelihood that the juror in question was actually biased against the defendant. Lacking supporting evidence, defendant’s claim of bias is wholly speculative. Defendant argues that “Juror No. 10 failed to disclose that she was a female abuse victim subjected to a loved one pulling a knife on her, and during her police interview she withheld this information to protect her abuser whom she loved.” There is no evidence that the assault was based on abuse, that the perpetrator was a “loved one,” or that the juror was actually interviewed by police. There also is no indication that her personal experience influenced her decision regarding defendant’s guilt. (Cf. Blackwell, supra, 191 Cal.App.3d at p. 928 [juror’s affidavit revealed bias against the defendant based on shared experience of domestic violence].) The foreperson’s declaration does not state that Juror No. 10 indicated she was biased against defendant, and nothing in the record suggests she was predisposed to convict or was unable to act as an impartial juror. In sum, our independent review of the record satisfies us that there is no substantial likelihood Juror No. 10 was actually biased against defendant.

Defendant next asserts he was prejudiced when Juror No. 10 acted as an expert during deliberations by introducing evidence to support B.F.’s credibility. He asserts the juror’s comments constituted expert testimony on intimate partner battering. The People argue that the claim has been forfeited for failure to raise it below. We have the discretion to overlook the forfeiture and decide the matter on the merits, and do so here to forestall a nonmeritorious claim of ineffective assistance of counsel. (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.)

There is no evidence that Juror No. 10 held herself out as an expert witness on abused women, or that the other jurors would have perceived her as such. The Supreme Court has consistently held that a juror sharing a life experience during deliberations does not constitute an impermissible opinion based on personal expertise. (People v. Linton (2013) 56 Cal.4th 1146, 1195.) We find no error.

II. Reversal of Count 5—Criminal Threat

Defendant contends the evidence is insufficient to support the guilty verdict on criminal threat in count 5, and that the trial court erred in failing to instruct on a lesser included offense of attempted criminal threat. We agree reversal is warranted.

In order to prove the crime of criminal threat under section 422, the prosecution must establish the following elements: (1) the defendant willfully threatened to commit a crime that will result in death or great bodily injury; (2) the defendant made the threat with specific intent that the statement was to be taken as a threat, even if there was no intention of carrying it out; (3) the threat on its face and under the circumstances was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat; (4) the threat actually caused the person threatened to be in sustained fear for his or her own safety or for his or her immediate family’s safety; and (5) the threatened person’s fear was reasonable under the circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 227–228 (Toledo).)

H.L. testified that while she was on the phone with B.F., she heard defendant’s voice in the background saying: “If you’re calling the cops, and I go to jail, I’m going to kill your kids, your mother and you, to make it worth my time.” This was the conduct charged in count 5. B.F. testified she could not recall defendant making the threat on this occasion; however, when asked on cross-examination about why she had not called the police regarding prior violent incidents, B.F. stated: “I was afraid. And like, he always said, ‘If I’m going to go to jail this time, it’s going to be for something worth it.’ ” Defendant argues a person cannot be in sustained fear from a threat that he or she did not hear and therefore the prosecution did not prove this crime.

We need not decide whether the evidence was sufficient to sustain the conviction because we agree that the trial court should have instructed on the lesser included offense of attempted criminal threat. The People concede that a sua sponte instruction was required, but they contend the defendant was not prejudiced by the failure to instruct. They reason that “[w]hile [B.F.] did not recall the threat having been made on July 15,” he had made the threat on numerous occasions and those prior threats had caused B.F. “such fear that she had not reported the prior instances of abuse.” It is not reasonably probable, the People argue, that the jury would have convicted on the lesser offense of attempted criminal threat even if so instructed. We are not persuaded.

A trial court’s failure to instruct on a lesser included offense in a noncapital case is evaluated “under the generally applicable California test for harmless error, that set forth in [People v. Watson (1956) 46 Cal.2d 818, 836].” (People v. Breverman (1998) 19 Cal.4th 142, 176; People v. Hayes (2006) 142 Cal.App.4th 175, 182.) Under Watson, reversal is required if absent the error, there is a reasonable probability of a more favorable result. (Watson, at p. 836.) Trial testimony established that defendant made the threat in question, as overheard by H.L., but that B.F. had not heard it. Although defendant acted with the specific intent to commit a criminal threat, “only a fortuity, not intended by the defendant, has prevented the defendant from perpetrating the completed offense of criminal threat itself.” (Toledo, supra, 26 Cal.4th at p. 231.) Applying the Watson standard, it is reasonably probable that defendant would have obtained a more favorable outcome if the jury had not been presented with a binary choice between conviction of the charged offense or complete acquittal. Had the jury been properly instructed, it likely would have found that defendant’s conduct constituted an attempted criminal threat. Conviction on count 5 must therefore be reversed.

III. Defendant Is Entitled to Presentence Conduct Credits

The trial court awarded defendant 341 days of actual presentence custody credits, but made no mention of conduct credits. Defendant contends, and the People concede, that he is entitled to such credits. The People also agree that his calculation of an additional 340 days of conduct credits is accurate. The abstract of judgment and the trial court’s minute order of the sentencing hearing must be corrected to reflect 341 actual days of presentence custody credits and 340 days of conduct credits, for a total of 681 days of presentence credit. (People v. Little (1993) 19 Cal.App.4th 449, 452 [“[I]f the minutes or abstract of judgment fails to reflect the judgment pronounced by the court, the error is clerical and the record can be corrected at any time to make it reflect the true facts.”].)

IV. The Case Must Be Remanded for Resentencing

Defendant’s sentence includes two five-year enhancements under section 667, subdivision (a)(1). At the time of sentencing, the court had no discretion “to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.” (Former § 1385, subd. (b).) While this case was pending, the Governor signed Senate Bill 1393 (eff. Jan. 1, 2019) which amends sections 667, subdivision (a) and 1385, subdivision (b) to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1, 2.) “Senate Bill 1393 applies retroactively to all cases or judgments of conviction in which a five-year term was imposed at sentencing, based on a prior serious felony conviction, provided the judgment of conviction is not final.” (People v. Garcia (2018) 28 Cal.App.5th 961, 971–972.)

In a supplemental brief, defendant argues, and the People effectively concede by not stating an opposition, that the case must be remanded to the trial court for resentencing. Because defendant was convicted and sentenced for two prior serious felony enhancements under section 667, subdivision (a) and his conviction is not yet final, remand is required to allow the court to exercise its discretion whether to strike the enhancements in accordance with the legislative amendments.

DISPOSITION

The judgment is affirmed in part and reversed in part as follows: We reverse the conviction for criminal threat as charged in count 5. We remand for the limited purpose of enabling the trial court to modify the judgment to award defendant a total of 681 days of presentence custody credit and to exercise its discretion whether to strike the prior serious felony enhancements. We direct the trial court to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. As so modified, and in all other respects, the judgment is affirmed.

_________________________

Sanchez, J.

WE CONCUR:

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Humes, P. J.

_________________________

Margulies, J.

A151733 People v. Rivera