Opinion
B310101
09-13-2022
THE PEOPLE, Plaintiff and Respondent, v. JAMES JOHNSON, Defendant and Appellant.
Maura F. Thorpe, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and Heidi Salerno, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED.
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. BA458043 Renee Korn, Judge. Convictions affirmed, sentence vacated, and remanded for resentencing.
Maura F. Thorpe, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and Heidi Salerno, Deputy Attorney General, for Plaintiff and Respondent.
SEGAL, J.
INTRODUCTION
James Johnson approached Juan Orozco, punched him in the face, demanded Orozco's cell phone, and brandished a knife. After Orozco knocked the knife out of Johnson's hand, Johnson took a shotgun out of a backpack he was carrying and pointed it at Orozco. Johnson fled as police arrived and was arrested after a chase. A jury convicted Johnson of several offenses arising from the incident, including attempted second degree robbery, and the trial court sentenced him to a prison term of 24 years eight months.
Johnson, who asked to represent himself for sentencing (but not at trial), argues the trial court erred in revoking his right to represent himself for misconduct that occurred outside the courtroom. We conclude that the trial court erred in revoking Johnson's right to represent himself at sentencing. We also agree with Johnson and the People that Johnson is entitled to have the trial court resentence him under recent amendments to Penal Code sections 654 and 1170. Therefore, we affirm Johnson's convictions, vacate his sentence, and direct the trial court to resentence him.
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. The People File Multiple Charges Against Johnson After He Attempts To Steal Orozco's Phone
Orozco was looking through recycling bins one evening and collecting bottles and cans. Johnson approached Orozco, hit him in the face, and demanded his cell phone. When Orozco refused, Johnson brandished a large knife and continued to demand the phone.
Orozco retreated and called the 911 emergency operator on his cellphone. Orozco picked up a broom handle from a trash bin and, after a few attempts, knocked the knife out of Johnson's hand. Johnson opened a backpack he was carrying, pulled out a 13-inch, sawed-off shotgun, pointed it at Orozco, and again demanded the phone. Orozco heard sirens and a helicopter overhead, and Johnson put the shotgun back in his backpack and ran away.
Two officers arrived at the scene and chased Johnson on foot, while an officer in the helicopter tracked Johnson with a light beam. The officers eventually arrested Johnson, recovered the backpack with the shotgun, and found the shotgun's hammer was in the cocked position. When a different officer later handled the shotgun, it discharged.
The People charged Johnson with seven crimes: attempted second degree robbery (§§ 211, 664); assault with a deadly weapon (the knife) (§ 245, subd. (a)(1)); assault with a firearm (§ 245, subd. (a)(2)); making a criminal threat (§422, subd. (a));possession of a firearm by a felon (§ 29800, subd. (a)(1)); possession of ammunition by a felon (§ 30305, subd. (a)(1)); and possession of a short-barreled shotgun (§ 33215). On the count for attempted robbery the People alleged Johnson personally used a knife and a firearm. (See §§ 12022, subd. (b)(1), 12022.53, subd. (b).) The People also alleged Johnson had two prior serious or violent felony convictions within the meaning of the three strikes law. (See §§ 667, subds. (b)-(i), 1170.12)
When Johnson arrived at a detention facility on the night of the incident, a sergeant told Johnson that officers would have to strip search him. Johnson told the sergeant that he would remember the sergeant's face and that, when he got "out," he would find out what car the sergeant drove, follow him home from the police station, and kill him and his family.
2. Johnson Temporarily Delays the Trial by Misbehaving in Custody
One day during jury selection, Johnson refused to leave his cell in the court lockup facility. A sheriff's deputy explained to the court that he believed Johnson had "shared some words" with another deputy in the lockup and that Johnson "became agitated" and "said that he was going to be a problem" when he left. When Johnson eventually appeared in the courtroom, the court spoke with Johnson and determined the court was "at risk based upon his agitation."
The deputies took Johnson, in handcuffs, back to the holding cell. After one of the deputies inserted a key into the handcuffs to remove them, Johnson-according to the deputy- "yanked on the handcuffs as far as he could," injuring the deputy's hand. The deputy left and locked the cell, leaving Johnson inside with the handcuffs and the key. Johnson told a different deputy he had flushed the key down the toilet, and the court stated Johnson was "playing games with the court and with the deputies."
After a recess a deputy recovered part of the handcuff key from Johnson's cell and brought it into the courtroom, but the top portion of the key was broken. The trial court expressed concern Johnson could use the missing portion as a weapon. The trial judge went into the lockup area and told Johnson that, if he did not return the remainder of the key, the trial would proceed in the courtroom without him. After initially denying he had a piece of the key, Johnson eventually gave it to one of the deputies. The court stated Johnson was a "risk to the court based on his behavior" and ordered the deputies to tie Johnson to a chair during the trial with a "stealth belt."
The next day Johnson again briefly refused to leave his holding cell after the lunch recess, but eventually agreed to appear in court. The trial court warned Johnson that, if he continued his "antics," the court would conduct the trial without him. On two other trial days Johnson initially refused to leave his detention facility because he wanted the trial to start later, but he eventually appeared in court after the trial court issued extraction orders.
An extraction order is an "order to compel a defendant to attend proceedings." (People v. Gomez (2018) 6 Cal.5th 243, 294.)
C. The Jury Convicts Johnson, and the Court Grants Johnson's Request To Represent Himself for Sentencing
A jury convicted Johnson on all counts and found true the allegations he personally used a knife and a shotgun during the attempted robbery. At the first hearing after the verdict Johnson asked the court to appoint a different attorney to represent him, a request the court denied. Johnson then asked to represent himself.
The court appointed an expert to determine whether Johnson was competent to represent himself. The court told Johnson that, if the expert concluded Johnson was competent, "misbehavior of any kind, disruption of the proceedings of any kind, refusal to come to court of any kind, refusal to come out into the courtroom, and refusing to be transported, all . . . would cause the court to take away [his] pro per status."
The expert concluded Johnson was competent to represent himself, and the trial court granted Johnson's request. The court stated, however, it had "never seen a defendant behave worse in court" than Johnson had during the handcuff-and-key incident. The court admonished Johnson: "You cannot act . . . inappropriately either in our lockup or in this court.... If you want to act like a decent and competent person here in court, then the court certainly will treat you with the respect that you are due. But once your behavior is anything like this court has seen before, this court will take away your right to represent yourself."
D. The Court Revokes Johnson's Right To Represent Himself
During one of the hearings at which Johnson voluntarily appeared, the trial court learned that earlier in the day Johnson had covered the security cameras in his holding cell with wads of paper and somehow removed his handcuffs. The trial court reminded Johnson that the court had made it "pretty clear" that, "if there were any incidents," the court would revoke his right to represent himself. The court set a hearing on whether to revoke that right.
Three sheriff's deputies testified at the hearing. One deputy testified that on the day of the most recent incident the deputies originally placed Johnson in a cell with handcuffs. While Johnson was in the cell, the security cameras went dark. The deputy checked Johnson's cell and found that Johnson's handcuffs were attached to his waist chain, but that his hands were free of the handcuffs. The deputy also noticed wads of toilet paper covering the security cameras. Two other deputies corroborated this testimony. Johnson asked all three deputies on cross-examination whether he had ever been disrespectful to them, been a threat to them, or otherwise misbehaved during their interactions in the courthouse. All three stated he had not.
At the conclusion of the hearing the court revoked Johnson's right to represent himself. The court stated: "The court is not revoking your pro per privileges because of any rudeness or disrespect. The court at this time is revoking your pro per privileges for your failure to behave appropriately in lockup in conformity with your instructed duty.... Part of the court making its finding . . . [is] based specifically on the defendant's previous action before myself in jury trial, . . . in which the defendant manipulated the handcuff key from a deputy.... The court cannot have you be a security risk. It's not an issue of rudeness. It's an issue of, I am concerned about deputy security, about my staff's security, about counsel's security, about all of the audience's security, and my own security." The court also stated: "You are repeatedly someone who takes this court's time up to deal with your behavioral issues. And that ends now."
At the next hearing the court appointed counsel to represent Johnson. The court again stated it had revoked Johnson's right to represent himself because he "appears not to be able to follow the court's instructions and poses a security risk to the court and all persons in it."
E. The Court Sentences Johnson
At the sentencing hearing the trial court struck one of Johnson's two prior serious or violent felony convictions and sentenced Johnson to prison for a total of 24 years eight months. The court sentenced Johnson on his attempted robbery conviction to a prison term of 22 years, consisting of the upper term of three years, doubled under the three strikes law, plus 10 years for the firearm-use enhancement, one year for the deadly weapon enhancement, and five years for the prior serious felony conviction. The court sentenced Johnson, as a second strike offender, on his convictions for making a criminal threat and possession of a firearm by a felon to consecutive terms of one year four months. The court imposed and stayed pursuant to section 654 execution of the sentences on Johnson's other convictions.
"Although attempts to commit a felony punishable under the [determinate sentencing law] are normally punished by one-half of the term prescribed for a completed crime (§ 664, subd. (a)), the punishment for attempted second degree robbery is an exception to the rule. Section 213, subdivision (b), when combined with section 18, provides that attempted second degree robbery is punishable by 16 months, two years, or three years in state prison." (People v. Neely (2009) 176 Cal.App.4th 787, 797.)
DISCUSSION
A. The Trial Court Erred in Revoking Johnson's Right To Represent Himself
1. Applicable Law and Standard of Review
"The Sixth Amendment to the federal Constitution gives a defendant the right to self-representation." (People v. Becerra (2016) 63 Cal.4th 511, 517 (Becerra); see Faretta v. California (1975) 422 U.S. 806, 817 [95 S.Ct. 2525, 45 L.Ed.2d 562] (Faretta).) "That right is not without limits, however. [Citation.] '"[The] government's interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant's interest in acting as his own lawyer."'" (Becerra, at p. 518; see People v. Williams (2013) 58 Cal.4th 197, 253.) "A defendant's Faretta right is subject to termination whenever he engages in '"deliberate dilatory or obstructive behavior" [that] threatens to subvert "the core concept of a trial."' [Citation.] "'When determining whether termination is necessary and appropriate, the trial court should consider several factors in addition to the nature of the misconduct and its impact on the trial proceedings, including: (1) 'the availability and suitability of alternative sanctions,' (2) 'whether the defendant has been warned that particular misconduct will result in termination of in propria persona status,' and (3) 'whether the defendant has "intentionally sought to disrupt and delay his trial."'" (People v. Ng (2022) 13 Cal.5th 448, 494-495 (Ng); see People v. Carson (2005) 35 Cal.4th 1, 10 (Carson).)
Where a court terminates a defendant's right to self-representation, the court should "'explain how the misconduct threatened to impair the core integrity of the trial. Did the court also rely on antecedent misconduct and, if so, what and why? Did any of the misconduct occur while the defendant was represented by counsel? If so, what is the relation to the defendant's self-representation? Additionally, was the defendant warned such misconduct might forfeit his Faretta rights? Were other sanctions available? If so, why were they inadequate? In most cases, no one consideration will be dispositive; rather, the totality of the circumstances should inform the court's exercise of its discretion.'" (Ng, supra, 13 Cal.5th at p. 495; see Carson, supra, 35 Cal.4th at pp. 11-12.)
"The trial court has considerable discretion in determining whether termination of Faretta rights is necessary to maintain the integrity and fairness of proceedings," and the "court's decision will not be disturbed absent a strong showing of clear abuse." (Ng, supra, 13 Cal.5th at p. 495; see Becerra, supra, 63 Cal.4th at p. 518; People v. Welch (1999) 20 Cal.4th 701, 735.) However, "[t]ermination of the right of self-representation is a severe sanction and must not be imposed lightly ...." (Becerra, at p. 518; see Carson, supra, 35 Cal.4th at p. 7.) A court's erroneous decision to revoke a defendant's right to self-representation is reversible per se. (People v. Williams, supra, 58 Cal.4th at p. 253; People v. Butler (2009) 47 Cal.4th 814, 824 (Butler); Carson, at p. 11, fn. 1.)
2. The Court Abused Its Discretion in Revoking Johnson's Right To Represent Himself
Johnson contends the trial court erred in revoking his right to represent himself because his misconduct did not threaten the core concept or integrity of a trial or compromise the court's ability to conduct fair proceedings and because the court failed to consider less severe sanctions. He is largely correct.
The trial court's first rationale-that Johnson posed a security risk-may have been supported by the evidence. But the court abused its discretion in revoking Johnson's right to represent himself on this ground because "there was no showing that [Johnson's] pro. per. status increased the risk in any way." (Butler, supra, 47 Cal.4th at p. 826; see People v. Superior Court (George) (1994) 24 Cal.App.4th 350, 354 ["[t]here is simply no authority to deny a defendant the right of self-representation because the defendant poses a real or perceived threat"].) For example, in Butler the trial court initially revoked the defendant's right to represent himself because his misconduct outside the courtroom demonstrated he posed a security risk. (Butler, at p. 821.) The defendant was "repeatedly discovered with weapons," and on one occasion "concealed a shank in his rectum just before he was to be taken to the courtroom." (Id. at p. 826.) The defendant later filed a renewed motion to represent himself, which the court granted. The court again revoked the defendant's right to represent himself, however, after concluding the restrictions imposed on him in jail impeded his ability to prepare a defense. (Id. at pp. 822-823.)
The Supreme Court reversed the trial court's latter decision to revoke the defendant's right to represent himself, holding "inmates still have the right to represent themselves even when their ability to prepare is restricted in custody." (Butler, supra, 47 Cal.4th at p. 827.) The Supreme Court also acknowledged, however, the trial court likely erred when it first revoked the defendant's right to represent himself based on the stated safety concerns. The Supreme Court explained that, while the defendant "was an obvious security risk," the trial court failed to draw any connection between his security risk and self-representation: "Self-represented or not, defendant was going to be housed in the jail, transported to and from the court and in attendance for his trial." (Id. at p. 826.)
Johnson posed less of a security risk than the defendant in Butler did. While Johnson injured a deputy's hand while taking a handcuff key and removed his handcuffs and covered security cameras in his holding cell, there was no evidence he attempted to bring a weapon into the courtroom. Although Johnson misbehaved some in custody, unlike the defendant in Butler Johnson was never discovered with any weapons (other than half a handcuff key, which he surrendered). Most important, there was no evidence that Johnson's self-represented status increased his security risk or that revoking his right to represent himself would minimize any such risk. As Johnson points out, the court already had determined Johnson was a security risk during the trial (when Johnson was represented by counsel) and addressed that issue by requiring Johnson to wear a stealth belt. Nothing in the record suggests the court could not have used the same or similar measures to minimize Johnson's security risk while he represented himself in the courtroom during the sentencing hearings. (See Butler, supra, 47 Cal.4th at p. 826, fn. 5 ["A pro. per. defendant may be physically restrained during trial for security purposes."]; People v. Doss (2014) 230 Cal.App.4th 46, 56 ["even where a defendant is 'an obvious security risk, and safety precautions [are] justified both in the jail and the courtroom,' such considerations do not necessarily justify revoking [i]n propria persona status entirely"]; People v. Superior Court, supra, 24 Cal.App.4th at p. 355 ["potential for violence in the courtroom is not uncommon and a showing of manifest need will justify physical restraints," but "physical restrictions on a defendant do not preclude self-representation."].) Indeed, however great a security risk the court believed Johnson posed, the court continued to allow him to attend all court proceedings, including the sentencing hearing, even after the court had revoked his right to represent himself.
Whether the court's other stated rationale-that Johnson "appear[ed] not to be able to follow the court's instructions"- justified revoking Johnson's right to represent himself is a somewhat closer question. As discussed, a trial court may revoke a defendant's right to represent himself or herself if the defendant "is and will remain so disruptive, obstreperous, disobedient, disrespectful or obstructionist in his or her actions" (People v. Williams, supra, 58 Cal.4th at p. 253) that he or she "threatens to subvert 'the core concept of a trial' [citation] or to compromise the court's ability to conduct a fair trial" (Becerra, supra, 63 Cal.4th at p. 518; see Ng, supra, 13 Cal.5th at p. 494).
But Johnson's conduct was not so obstructive that it compromised the court's ability to conduct a fair trial or sentencing proceeding. Misconduct that justifies revoking a defendant's right to self-representation includes tactics intended to delay proceedings. (See, e.g., Ng, supra, 13 Cal.5th at pp. 495-496 [trial court did not err in finding the "defendant was using his pro se status to disrupt and delay trial" where the defendant frequently changed his positions "regarding representation" and filed 37 motions under People v. Marsden (1970) 2 Cal.3d 118 to replace his appointed counsel]; Williams, supra, 58 Cal.4th at pp. 254-255 [trial court did not err in revoking the defendant's right to self-representation for "delay tactics" where the defendant, among other things, requested multiple continuances, filed multiple motions to remove his standby counsel and to disqualify the trial judge, moved to disqualify the prosecutor, and filed a motion for a change of venue].) Other misconduct that may justify revoking a defendant's right to self-representation includes making "abusive and threatening remarks" in the courtroom (People v. Clark (1992) 3 Cal.4th 41, 116-117 &fn. 10) and engaging in "witness intimidation, which by its very nature compromises the fact finding process and constitutes a quintessential 'subversion of the core concept of a trial'" (Carson, supra, 35 Cal.4th at p. 9; accord, People v. Torres (2020) 47 Cal.App.5th 984, 989-990). Johnson did not do any of these things. The handcuff-and-key incident and the instances where he failed to promptly enter the courtroom may have caused minor delays in the trial or hearings, but they did not seriously impair the court's ability to conduct the proceedings. (See People v. Weber (2013) 217 Cal.App.4th 1041, 1060 ["although defendant made many frivolous objections, the record does not show that he was out of control, engaged in behavior that impaired the orderly progress of the trial, or did anything to justify terminating self-representation"].)
Other factors did not support the court's decision to revoke Johnson's right to represent himself. (See Ng, supra, 13 Cal.5th at p. 495 ["'the totality of the circumstances should inform the court's exercise of its discretion'"].) First, all of Johnson's misconduct, before and after he represented himself, occurred outside the courtroom. As the Supreme Court has explained: "Misconduct that is more removed from the trial proceedings . . . may not justify complete withdrawal of the defendant's right of self-representation.... Not every obstructive act will be so flagrant and inconsistent with the integrity and fairness of the trial that immediate termination is appropriate." (Carson, supra, 35 Cal.4th at p. 10; compare People v. Welch, supra, 20 Cal.4th at p. 735 [trial court did not err in revoking defendant's right to represent himself where, during trial, the defendant "belligerently denied awareness of a calendar date that was set in his presence," "interrupted the trial court several times to argue what the court had declared to be a nonmeritorious point," "accused the court of misleading him," and "refused to allow the court to speak" or "follow the court's admonishment of silence"].)
Second, all the misconduct that actually caused (a relatively minor) delay in the proceedings occurred while counsel still represented Johnson. (See Ng, supra, 13 Cal.5th at p. 495.) Johnson's only act of misconduct while representing himself- removing his handcuffs and covering the security cameras in his holding cell-did not cause a delay. Johnson appeared on time for the scheduled hearing the day of the incident. Moreover, Johnson's misconduct had no relation to the proceedings (apart from occurring inside a courthouse), much less to his status as a self-represented litigant. (See Becerra, supra, 63 Cal.4th at p. 519 [trial court erred in revoking the defendant's right to represent himself for purportedly delaying the trial, where the court did "make clear how defendant's behavior threatened to compromise its ability to conduct a fair trial"]; People v. Doss, supra, 230 Cal.App.4th at p. 56 ["if a defendant's out-of-court misconduct is unrelated to in propria persona status or privileges, the misconduct may not justify revoking pro. per. status"].)
Finally, even if the court was concerned Johnson might eventually misbehave in the courtroom in light of his prior inability to follow the court's instructions, the court could have employed other, less drastic measures to guarantee Johnson would not compromise the court's ability to control the proceedings. For example, the court could have appointed standby counsel to take over in the event Johnson began misbehaving in court. (See Carson, at p. 8 [a court "may-even over objection by the accused-appoint a 'standby counsel' to aid the accused . . . in the event that termination of the defendant's self-representation is necessary"]. Rather than considering whether Johnson's behavior seriously threatened the court's ability to conduct fair proceedings or how the court could minimize the potential for disruption, it appears the court was trying to make good on its prior warning that it would revoke Johnson's right to represent himself if he misbehaved in any way. That was an abuse of discretion. (See Becerra, supra, 63 Cal.4th at p. 520 ["Terminating a defendant's self-representation status should be considered a last resort, not a first impulse."].)
B. Recent Amendments to the Penal Code Apply to Johnson's Convictions
Johnson argues, the People concede, and we agree several amendments to the Penal Code, effective January 1, 2022, apply retroactively to his convictions. As amended, section 1170, subdivisions (b)(1) and (b)(2), "requires a court to 'order imposition of a sentence not to exceed the middle term,'" except where the defendant stipulates to, or the People prove to a jury beyond a reasonable doubt, the facts underlying the aggravating circumstances that justify imposing the upper term. (People v. Zabelle (2022) 80 Cal.App.5th 1098, 1108-1109.) Section 1170, subdivision (b)(6), as amended, requires a court to impose the lower term in some circumstances, such as where the defendant's psychological, physical, or childhood trauma "was a 'contributing factor' to the defendant's commission of the offense," unless "'the aggravating circumstances outweigh the mitigating circumstances [so] that imposition of the lower term would be contrary to the interests of justice.'" (People v. Gerson (2022) 80 Cal.App.5th 1067, 1095.) In addition, where section 654 applies, the statute as amended now "provides that judges have discretion to sentence a defendant to any of the convicted crimes rather than the one that provides for the longest term of punishment." (People v. Aguayo (Aug. 25, 2022, S254554) ___Cal.5th___,___, fn. 6 [2022 WL 3652056, p. 10; see People v. Lopez (2022) 78 Cal.App.5th 459, 468 [the Legislature amended section 654 "to remove the requirement that a court impose the longest sentence when a defendant is convicted of more than one offense arising from the same conduct, such that a court now has discretion to select a longer or shorter sentence"]; People v. Sek (2022) 74 Cal.App.5th 657, 673 [the amendment to section 654 "removes the requirement to impose the longest prison term"]; People v. Mani (2022) 74 Cal.App.5th 343, 379 ["section 654 now provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence"].)
Because these amendments are ameliorative changes that reduce punishment, and because Johnson's judgment was not yet final when the amendments went into effect, they apply to his convictions. (See People v. Zabelle, supra, 80 Cal.App.5th at p. 1109 ["section 1170's current statutory language applies retroactively in all non-final cases"]; People v. Mani, supra, 74 Cal.App.5th at p. 379 [because the amendment to section 654 "was enacted while defendant's appeal was not yet final and it provides the trial court new discretion to impose a lower sentence, defendant is entitled to its ameliorative benefit"]; People v. Flores (2022) 73 Cal.App.5th 1032, 1039 ["the amended version of section 1170, subdivision (b) that became effective on January 1, 2022, applies retroactively . . . as an ameliorative change in the law applicable to all nonfinal convictions on appeal"]; see also People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308 ["in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not"].) At resentencing, the trial court will have the opportunity to sentence Johnson under these new statutory provisions.
Johnson also argues the trial court erred in failing to stay under section 654 execution of the sentence on his conviction for possession of a firearm by a felon. According to Johnson, his conviction for that crime involved the same act and same intent and objective as his conviction for attempted second degree robbery. (See People v. Corpening (2016) 2 Cal.5th 307, 311.) Because there was substantial evidence Johnson arrived at the scene of the attempted robbery already in possession of the sawed-off shotgun, it appears the trial court did not err. (See People v. Jones (2002) 103 Cal.App.4th 1139, 1143, 1145 [section 654 does not preclude a court from imposing sentences for both possession of a firearm by a felon and an "'offense in which [the defendant] employs'" the firearm where "the evidence shows that the defendant arrived at the scene of his or her primary crime already in possession of the firearm"]; see also People v. Bradford (1976) 17 Cal.3d 8, 22; People v. Venegas (2020) 44 Cal.App.5th 32, 38; People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1413-1414.) Nevertheless, because the court made its sentencing decisions only after erroneously revoking Johnson's protected right to represent himself, Johnson should have an opportunity to present arguments on this issue at the resentencing hearing.
DISPOSITION
The convictions are affirmed. Johnson's sentence is vacated. The trial court is directed to resentence Johnson, including under the recent amendments to sections 654 and 1170.
We concur: PERLUSS, P. J. FEUER, J.