Filed 10/28/20 P. v. Greenlee CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B299345
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA055428)
v.
CHRISTOPHER GREENLEE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Robert M. Martinez, Judge.
Conditionally reversed and remanded with instructions.
Lori Nakaoka, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, David E. Madeo and
Peggy Z. Huang, Deputy Attorney Generals, for Plaintiff and
Respondent.
__________________________________________________
INTRODUCTION
In 2002, appellant was convicted of first degree
burglary and other crimes arising from an incident in which
he served as a getaway driver for a companion who sprayed
and bludgeoned a man with a can of chemicals in order to
steal another man’s personal safe. Appellant’s sentence on
the burglary count included two five-year enhancements
under Penal Code section 667 for prior first degree burglary
convictions. In the most recent of our three prior opinions in
this case, we remanded to the trial court with instructions,
inter alia, to consider whether to strike these two five-year
enhancements pursuant to the court’s new discretion under
Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2) (S.B.
1393). (People v. Greenlee (Jan. 23, 2019, B268860) [nonpub.
opn.].)
On remand, appellant’s appointed counsel recognized
the need to conduct a factual investigation in order to
prepare to advocate for a favorable exercise of the court’s
discretion. For reasons not revealed by the record, however,
counsel failed to prepare. The day before the resentencing
hearing, appellant, complaining of his counsel’s failure to
prepare, made a Marsden motion for appointment of
2
substitute counsel, which the court denied.1 During the
Marsden hearing and the resentencing hearing the next day,
appellant’s counsel repeatedly and unequivocally admitted
he was wholly unprepared to assist appellant. Without
securing a waiver of appellant’s right to counsel, the court
engaged in extended colloquies with appellant, during which
appellant argued for a favorable exercise of the court’s
discretion; his counsel did not participate. The court
declined to strike the two five-year enhancements, relying in
part on its view that appellant had neither changed nor
matured in the 17 years since his underlying convictions.
On appeal, appellant contends: (1) the trial court
violated his right to counsel, requiring automatic reversal, in
denying his Marsden motion and resentencing him the next
day in the face of his counsel’s unequivocal acknowledgment
that he was unprepared to assist appellant, without securing
a waiver of his right to counsel; and (2) the court abused its
discretion in refusing to strike the two five-year
enhancements. The People dispute both contentions and
argue that even if we agree with the first, we should affirm
because the record shows the denial of appellant’s Marsden
motion was harmless beyond a reasonable doubt.
We agree with appellant’s first contention, finding the
court violated his right to counsel by resentencing him in the
face of his counsel’s repeated and unequivocal admissions
that he was wholly unprepared to assist appellant, without
1 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
3
securing a knowing and voluntary waiver of his right to
counsel. We further conclude reversal is required even
under the standard advanced by the People, as the record
does not show the court’s denial of appellant’s Marsden
motion was harmless beyond a reasonable doubt.
Accordingly, we conditionally reverse appellant’s sentence
and remand to the trial court with instructions to consider,
at a resentencing hearing at which appellant receives the
assistance of counsel (unless he knowingly and voluntarily
waives his right to counsel), whether to exercise its
discretion to strike the two five-year enhancements imposed
under Penal Code section 667.
PROCEEDINGS BELOW
A. Background to Our Prior Remand
On December 21, 2001, a contractor was working at a
house owned by Steve Williams, an acquaintance of
appellant’s through appellant’s wife. The contractor saw
appellant driving a small blue car, which appellant stopped
in front of the house. As appellant spoke to a passerby, a
man wearing a hoodie started walking up the house’s
driveway, but then walked away. Appellant drove away.
Soon, the man in the hoodie reappeared and asked the
contractor when he could see Williams. When the contractor
removed his safety glasses, the man sprayed the contractor’s
face with a chemical spray can, pushed him to the ground,
and struck his head and shoulders with the can. The man
took a personal safe owned by Williams and entered the
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passenger side of a small blue car, which sped off. The car
almost hit a nearby driver, who wrote down its license plate
number and gave it to the police. The police determined the
car was registered to appellant’s wife.
A jury convicted appellant of first degree burglary,
assault with a deadly weapon by means likely to produce
great bodily injury, and petty theft with five prior
theft-related convictions. The jury found true allegations
under Penal Code section 667, subdivision (a), that appellant
had sustained first degree burglary convictions in June 1991
and October 1992.
The trial court sentenced appellant to an aggregate
term of 38 years to life, comprising a 25-years-to-life term on
the burglary count, two five-year enhancements for the prior
first degree burglary convictions, and three one-year
enhancements for prior convictions (two of these, like the
five-year enhancements, were based on the prior first degree
burglary convictions, while the third was based on a 1997
felony conviction for receiving stolen property, later reduced
to a misdemeanor under Proposition 47). The court stayed
appellant’s sentence on the petty theft count. It ordered his
sentence on the assault count to run concurrently with his
sentence on the burglary count, explaining that the latter
sentence was long and that “the nature of the weapon and
the nature of the degree of force [were] substantially less
than other types of weapons that are typically used.”
On appellant’s initial appeal, we affirmed the judgment
as modified to strike the two one-year enhancements
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imposed for the same first degree burglary convictions
underlying the two five-year enhancements. (People v.
Greenlee (Dec. 3, 2003, B162012) [nonpub. opn.].) Years
later, appellant unsuccessfully petitioned the trial court
under Proposition 47 to strike the remaining one-year
enhancement, and we initially affirmed the denial of that
petition. (People v. Greenlee (Feb. 16, 2017, B268860)
[nonpub. opn.], cause transferred Oct. 10, 2018.) On remand
from our Supreme Court, however, we remanded to the trial
court with instructions to strike the remaining one-year
enhancement and to determine whether the two five-year
enhancements should be stricken pursuant to the court’s
new discretion under S.B. 1393. (People v. Greenlee (Jan. 23,
2019, B268860) [nonpub. opn.].) In so doing, we quoted our
Supreme Court’s statement of the rule that “when part of a
sentence is stricken on review, on remand for resentencing ‘a
full resentencing as to all counts is appropriate, so the trial
court can exercise its sentencing discretion in light of the
changed circumstances.’” (Ibid., quoting People v. Buycks
(2018) 5 Cal.5th 857, 893 (Buycks).) Under this rule, “the
resentencing court may consider ‘any pertinent
circumstances which have arisen since the prior sentence
was imposed.’” (Buycks, supra, at 893.)
B. Appellant’s In Pro. Per. Filings and
Appointment of Counsel
Shortly after we issued our most recent prior opinion,
but before issuance of the remittitur, appellant, acting in
6
propria persona, filed in the trial court a “notice of lodging of
exhibits” (dated February 3, 2019). The attached exhibits
included records of appellant’s completion -- mostly in recent
years -- of counseling and education on psychological and
substance abuse issues, vocational education, and
employment (to the satisfaction of eight supervisors who
provided him with letters of recommendation). Appellant
expressed his hope that the court would “consider the
records as a showing of appellant’s rehabilitation efforts and
in the Court[’s] consideration of striking appellant’s two
serious 667.5 [sic] enhancements imposed in his case,”
adding that the exhibits reflected “only some examples of
appellant’s rehabilitation efforts since being in prison.”
Soon thereafter, but still before issuance of the
remittitur, appellant filed two additional documents, each of
which raised various challenges to the proceedings
underlying his instant and prior convictions. In addition to
raising such challenges, appellant asked the court to “take
into consideration his behavior in prison for the past 19
years, where there hasn’t even been a remote question of any
violence, and as a matter of fact he’s stopped violence.”
Appellant asserted that all of his offenses were related to
substance abuse, and that when he was a child, his relatives
and their associates regularly used drugs around him and
allowed him to drink alcohol until he passed out.
The remittitur was issued on March 26, 2019, and filed
in the trial court on March 28, 2019. The court appointed
counsel for appellant, who first appeared on April 15, 2019.
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Appellant’s counsel requested copies of the trial transcripts,
explaining, “[I]f the court needs to consider [appellant’s]
background, his life, his . . . possibility of rehabilitating
himself, those are factual things that I’ll certainly want to
know everything about . . . that I can.” The court indicated
it would order the trial transcripts. The court scheduled a
status hearing for May 17, 2019, with the understanding
that a further hearing would be scheduled after that date.
At the May 17 hearing, without any substantive discussion
on the record, the court scheduled a further hearing for June
13, 2019.
C. The Marsden Hearing
At the outset of the June 13, 2019 hearing, appellant’s
counsel informed the court, “There is going to be a Marsden.”
The court held a Marsden hearing, inviting appellant to
specify his concerns with his counsel. Appellant responded,
“The concern is that I’ve been here [presumably, county jail]
for a couple of months now. My attorney here hasn’t even
bothered to get my file from my previous conflicted attorney.
I met with him last week for about ten minutes. He has no
idea what is going on with my case. . . . He’s not trying.”
Mentioning that he had been “down here three months from
prison,” appellant asked if the parties and court could “do
this,” to which the court responded, “I can do it right now.”
Appellant’s counsel interjected, “Does he want to
waive? For the record, Your Honor, we had an extensive
chambers conference. . . . I was in your chambers on behalf
8
of [appellant] advocating for as many records as I could
possibly get because the phrase ‘in the interest of justice’ is
very broad and I wanted to do the best I could to represent
[appellant] and his life, his possibility of rehabilitation for
the court’s consideration.[2] [¶] I see all that kind of is on the
table and the court has granted some of my requests and
denied some of my requests and I am ready to go to bat for
[appellant] to try to get as much information from the court
as I can that may influence your discretion but I walked into
court today and he presented me with a Marsden motion
right off the top of the bat so I haven’t had an opportunity to
do what I wanted to do. If he wants to waive that on the
record and have this hearing right now, that’s fine, but I just
want the court to know I am ready and willing to work this
case with whatever information I can to the court [sic] on
that limited issue.” Appellant responded that he wanted to
“get this done,” as he had been waiting for two months.
After indicating that it would trail the matter to the
next morning, the court asked appellant, “Do you want to get
involved with an attorney?” Appellant responded, “I would
like to have a new attorney, yes, absolutely.” His counsel
interjected, “Then there is nothing for me to do. I am totally
unprepared to -- I can be here just to -- as a matter of record,
but there is really not going to be much by way of advocacy
that I can update with [sic].” The court announced, “I will
2 The record includes no reporter’s transcript of a chambers
conference, or settled statement in lieu of such a transcript.
9
deny the Marsden hearing [sic]. He hasn’t set forth any
legitimate or legal basis for it. 10:30 [a.m.] tomorrow.”
D. The Resentencing Hearing
The morning after the Marsden hearing, the court held
a resentencing hearing. The court invited appellant’s
counsel to argue whether the court should strike the two
five-year enhancements. Appellant’s counsel responded, “I
don’t have anything further to say other than what I said
yesterday.” After the court asked him to clarify what he had
said the day before, he replied, “I have not had sufficient
time to prepare this case for the court to exercise its
discretion; however, if [appellant] wants to proceed with that
understanding, that’s his decision.”
The court invited a response from appellant, who again
complained that his counsel had not obtained his file after
two months of representation, and asked how much
additional time his counsel was requesting. Rather than ask
appellant’s counsel that question, the court delivered a brief
summary of the procedural history of the case to appellant’s
counsel and asked, “Can you think of any reason that the
court should strike the two prior serious felonies in the
interest of justice that would promote the interest of justice?”
Appellant’s counsel responded, “As I stand here today, I
don’t have anything, but I haven’t finished my
investigation.” After the court asked him to describe the
investigation he intended to conduct, he responded, “Do
more of a background check into his life. Perhaps the
10
reasons why these things happened to him. How they fit in
the context. [¶] The interest of justice is a very broad
concept. If the court is not going to look beyond just the
mere convictions, then I don’t have anything to present to
the court. But if the court is willing to listen to more than
just the legal convictions, then there might be something in
his past or in his life that the court may want to consider.”
The court prompted, “For example?” Appellant’s counsel
responded, “Mental health problem. Drug problem.
Anything that could show the court that perhaps he’s a
person that can be rehabilitated, become a productive
member of society. Those kind of things.”
The court then addressed appellant directly, asking
him whether there were additional facts the court should
consider. Appellant argued at length regarding his
challenges to the proceedings underlying his instant and
prior convictions, his history of substance abuse dating back
to his abusive childhood, and injuries he had sustained,
which he suspected had caused mental illness. After
appellant indicated he could think of nothing further to say,
the court invited appellant’s counsel to speak.
Appellant’s counsel responded, “What [appellant] just
said is a tall order. I think all of that would come within the
ambit of the interest of justice. Certainly his background,
how he was raised, his mental states, drug abuse, mental
health issues. [¶] If I were to investigate all that, it would
take months to do that. I would have to get an investigator,
subpoena documents. He would have to be examined
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medically and psychologically. [¶] If I were to do this job
right, that’s what I would be asking to do. But I don’t have
any information []or input at this point in time that would
influence the court one way or the other regarding its
exercise of its discretion.”
After further colloquy with appellant and without
addressing appellant’s counsel, the court announced that it
was denying appellant’s motion to strike the two five-year
enhancements. Addressing appellant directly, the court
explained that “based on your history, I do not see any
circumstances whatsoever that would promote the interest of
justice by striking your priors. [¶] You’ve demonstrated that
you are a danger. Your crimes of theft and receiving stolen
property go back to 1989 when you were 19 years old. And
the court is of the view that you have not changed. You have
not matured, nor have you accepted responsibility. All right.
And the court does not find any factors that would promote
the interest of justice by striking either of the five-year
priors. [¶] The motion to strike priors is denied.” Pursuant
to our instructions, the court struck the remaining one-year
enhancement.
Appellant, acting in propria persona, filed a
handwritten notice of appeal the same day.
DISCUSSION
Appellant contends the trial court violated his right to
counsel in denying his motion for substitute counsel and
resentencing him the next day in the face of his counsel’s
12
unequivocal admission that he was wholly unprepared to
assist appellant, without securing a knowing and voluntary
waiver of his right to counsel. We agree.
A. Principles
Criminal defendants have a right to counsel under the
federal and California Constitutions. (E.g., People v.
McKenzie (1983) 34 Cal.3d 616, 626 (McKenzie), abrogated
on another ground in People v. Crayton (2002) 28 Cal.4th
346.) “[T]he constitutional right to counsel mandates
diligent, substantial representation, not simply a pro forma
appearance.” (People v. Locklar (1978) 84 Cal.App.3d 224,
229 (Locklar).) A trial court has a duty “to assure, to the
extent possible under all the circumstances, that defendant
receives such diligent advocacy.” (McKenzie, supra, at 626;
accord, People v. Shelley (1984) 156 Cal.App.3d 521, 532
(Shelley) [in face of defense counsel’s nonparticipation at
trial, trial court had “duty to safeguard [defendant]’s right to
the effective assistance of counsel and to ensure the orderly
administration of justice”].)
To discharge this duty when faced with defense counsel
representing that he will not or cannot participate in the
defense of his client, a trial court has several options: “The
trial court has the option to order defense counsel to
participate in the defense of his client and to threaten to
hold him in contempt if he fails to do so, to warn counsel that
he will be reported to the State Bar for a determination of
whether disciplinary measures should be taken, or to impose
13
the sanction of contempt if he refuses to participate after
being ordered to do so and relieve counsel of his duties. If
counsel is relieved, the trial court must advise the defendant
that he may represent himself or have another attorney
appointed to represent him. Before, however, a defendant
may be allowed to exercise his right of self-representation,
‘the court must determine that he is competent to waive his
right to counsel and that any such election is knowing,
intelligent and understanding. [Citations.]’ (McKenzie,
supra, 34 Cal.3d at p. 628.) If the defendant requests
counsel, the trial court must appoint substitute counsel and
grant a continuance to allow adequate time to prepare for
trial.” (Shelley, supra, 156 Cal.App.3d at 531.) Though one
option, as noted, is to secure a knowing and voluntary
waiver of the right to counsel, “[e]very reasonable
presumption against the waiver of the right to counsel will
be indulged, and acquiescence in the loss of the right to
counsel will not be presumed.” (Id. at 532.) “There can be
no waiver of the right to effective assistance of counsel in the
absence of a waiver of the right to counsel. The two are not
mutually exclusive rights; each is part and parcel of the
other.” (Ibid., italics added.)
B. Analysis
The trial court violated appellant’s right to counsel by
resentencing him in the face of his counsel’s repeated and
unequivocal admissions that he was wholly unprepared to
assist appellant, without securing a knowing and voluntary
14
waiver of appellant’s right to counsel. During the Marsden
hearing the day before resentencing, appellant’s counsel
advised the court that he was “totally unprepared,”
emphasizing that if he were to appear the next day, it would
be “just . . . as a matter of record,” and there would be
“nothing for [him] to do” in terms of advocacy. At the outset
of the resentencing hearing, counsel reaffirmed that he was
incapable of adequately representing appellant on the sole
issue before the court, stating, “I have not had sufficient
time to prepare this case for the court to exercise its
discretion.” Recognizing the need for further investigation,
counsel candidly admitted that “As I stand here today, I
don’t have anything. But I haven’t finished my
investigation.” In his last words to the court before the
announcement of its ruling, counsel put his admission in
even plainer terms: “I don’t have any information []or input
at this point in time that would influence the court one way
or the other regarding its exercise of its discretion.” Though
appellant himself argued at length for a favorable exercise of
the court’s discretion, his counsel did not participate in his
client’s advocacy.3 “[C]ounsel’s nonparticipation was neither
3 The People misrepresent the record in asserting that
appellant’s counsel “urged the court to consider appellant’s
mental health, drug addiction, and social history,” and that
appellant merely “elaborate[d]” on his counsel’s submission. In
fact, counsel referenced appellant’s mental health, drug use, and
social history only as subjects of the months-long investigation he
“would be asking to do” if he “were to do this job right . . . .”
15
‘effective’ nor ‘assistance’ in any sense of those terms.”
(McKenzie, supra, 34 Cal.3d at 637.)
In the face of counsel’s admissions of total
unpreparedness and inability to proceed, the court had the
following options: (1) continue the proceedings a reasonable
period of time to enable counsel to prepare; (2) grant
appellant’s Marsden motion and continue the resentencing
hearing to enable substitute counsel to prepare; or (3) secure
from appellant a knowing and voluntary waiver of his right
to counsel. (See Shelley, supra, 156 Cal.App.3d at 531; cf.
Magana v. Superior Court (2018) 22 Cal.App.5th 840,
845-846, 862 [trial court acted within its discretion, after
continuing trial on account of defense counsel’s failure to
prepare, in relieving counsel against defendant’s wishes,
where counsel, “by his own admission, was not prepared on
the day set for trial to competently represent defendant”].)
In resentencing appellant without pursuing any of those
alternatives, the court violated appellant’s right to counsel.
(See In re Cassandra R. (1983) 139 Cal.App.3d 670, 676-677
[juvenile court deprived defendant of assistance of counsel in
denying defendant’s day-of-adjudication-hearing continuance
request and conducting hearing in face of defense counsel’s
nonparticipation, where counsel was “totally unprepared to
proceed”]; Locklar, supra, 84 Cal.App.3d at 227-229 [trial
court deprived defendant of assistance of counsel in denying
defendant’s day-of-trial continuance request to accommodate
defense counsel’s sudden illness and impaneling jury in face
16
of interim counsel’s nonparticipation, where interim counsel
was unfamiliar with case].)
The People imply that appellant invited the court’s
error, asserting that during the Marsden hearing, appellant
“insisted on proceeding with the resentencing.” Not so. In
making his Marsden motion, appellant sought new counsel
on the ground that his counsel had failed to investigate and
prepare a defense -- assuredly aware that new counsel’s
appointment, investigation, and preparation would require a
continuance. Though appellant did express a desire to
proceed with resentencing rather than languish in county
jail without the assistance of counsel, he never abandoned
his request for the assistance of prepared counsel. On the
contrary, even after the court announced its intent to
proceed with resentencing the next day, appellant affirmed
he “absolutely” wanted new counsel. Moreover, even had
appellant insisted on proceeding the next day, his insistence
would not have negated the court’s “duty to safeguard
appellant’s right to the effective assistance of counsel and to
ensure the orderly administration of justice.” (Shelley, supra,
156 Cal.App.3d at 532; see also id. at 533 [where court
“permitted the prosecutor to elicit from [defendant] his
consent to his trial counsel’s nonparticipation” at trial,
defendant’s “mere acquiescence in his trial counsel’s
handling of the case” did not waive his right to counsel];
People v. McGraw (1981) 119 Cal.App.3d 582, 587
[defendant’s “apparent approval” of retained counsel’s
nonparticipation in jury selection “did not meet even the
17
minimal constitutional requisites for a valid waiver of the
right to counsel”].)
We are not unsympathetic to the trial court’s position.
Faced with counsel who -- for reasons not revealed by the
record -- was unable to represent his client, and a defendant
frustrated with perceived undue delay in his resentencing,
the court’s alternatives were limited and imperfect. What it
could not do, however, was proceed to substitute appellant
for his admittedly unprepared counsel, without securing
from appellant a thorough and informed waiver of his right
to counsel.
While the parties dispute the appropriate standard of
review, we need not resolve that dispute. We conclude
reversal is required even under the standard advanced by
the People, as the record does not show the court’s denial of
appellant’s Marsden motion was harmless beyond a
reasonable doubt.4 The record includes relevant evidence
that appellant made efforts to rehabilitate himself after his
original sentencing, particularly in recent years, by
completing vocational education, employment, and
4 Appellant argues that the violation of his right to counsel
requires automatic reversal. (See, e.g., People v. Hall (1990) 218
Cal.App.3d 1102, 1109 [“If, at a deferred sentencing hearing
where the defendant represents himself or herself, there is a
complete absence of a waiver of the right to counsel and of any
self-representation warnings, reversal is required”]; Locklar,
supra, 84 Cal.App.3d at 229 [trial court’s proceeding with jury
selection in face of appointed counsel’s nonparticipation was
“reversible error per se”].)
18
counseling on psychological and substance abuse issues.
(See Buycks, supra, 5 Cal.5th at 893; cf. Pepper v. U.S.
(2011) 562 U.S. 476, 492 [evidence of defendant’s
post-sentencing rehabilitation, including evidence of
education, employment, and substance abuse recovery, was
“critical” part of history and characteristics federal district
court was required to consider at resentencing].) The court
exhibited no knowledge that such evidence existed. Had
appellant received assistance from prepared counsel,
however, such counsel might have secured the court’s
favorable consideration of this evidence, or of other evidence
of rehabilitation discovered through investigation. In
announcing its decision not to strike the enhancements, the
court relied, in part, on its view that appellant had neither
changed nor matured in the 17 years since his underlying
convictions. There is a reasonable doubt whether the
assistance of prepared counsel in presenting evidence of
rehabilitation would have changed that view. (Cf. People v.
Cutting (2019) 42 Cal.App.5th 344, 350 [violation of
defendant’s federal constitutional right to be present at
resentencing hearing, after remand with instructions to
strike enhancement for prior drug convictions, was not
harmless beyond a reasonable doubt, where defendant might
have offered mitigating evidence “that arose after his
original sentencing”]; People v. Rocha (2019) 32 Cal.App.5th
352, 355, 360 [defendant was prejudiced by violation of his
statutory right to be present with counsel at resentencing
hearing on remand for exercise of discretion to strike firearm
19
enhancement, where violation deprived defendant of
opportunity to “‘emphasize’” mitigating evidence].)5
5 Because we agree with appellant’s first contention, we need
not address his second, viz., that on the record before it the court
abused its discretion in refusing to strike the two five-year
enhancements. With respect to both arguments, appellant seeks
resentencing, not a determination that the court was compelled
as a matter of law to strike the enhancements.
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DISPOSITION
Appellant’s sentence is conditionally reversed, and the
matter is remanded to the trial court with instructions to
consider, at a resentencing hearing at which appellant
receives the assistance of counsel (unless he knowingly and
voluntarily waives his right to counsel), whether to exercise
its discretion to strike the two five-year enhancements
imposed under Penal Code section 667. If the court strikes
either enhancement, it shall resentence appellant, prepare
an amended abstract of judgment reflecting appellant’s new
sentence, and forward a certified copy of the amended
abstract of judgment to the California Department of
Corrections and Rehabilitation. If the court does not strike
either enhancement, it shall reinstate appellant’s sentence.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J.
We concur:
WILLHITE, J. COLLINS, J.
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