People v. Perez CA4/2

Filed 12/4/20 P. v. Perez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E073399

v. (Super.Ct.No. SWF1707851)

CHRISTOPHER DANIEL PEREZ, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Mark Mandio, Judge.

Affirmed with directions.

Donna L. Harris, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos and Joseph C.

Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.

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 I. INTRODUCTION

Defendant and appellant, Christopher Daniel Perez, was convicted by a jury of

three counts of willful infliction of corporal injury upon someone with whom he had a

dating relationship (Pen. Code,1 § 273.5, counts 1, 5, & 8); one count of rape (§ 261,

subd. (a), count 2); one count of dissuading a witness (§ 136.1, subd. (b)(1), count 3); one

count of false imprisonment (§ 236, count 4); one count of kidnapping (§ 207, subd. (a),

count 6); and one count of assault by means of force likely to produce great bodily injury

(§ 245, subd. (a)(4), count 7). In a bifurcated proceeding, the trial court found true

special allegations that defendant had sustained four prior prison sentences qualifying for

sentence enhancements (former § 667.5, subd. (b); Stats. 2018, ch. 423, § 65); a prior

conviction qualifying as a serious prior felony (§ 667, subd. (a)); and a prior conviction

qualifying as a strike offense (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)).

Defendant was sentenced to a total of 41 years eight months in state prison, which

included one-year enhancements for each of his four prior prison terms pursuant to

former section 667.5, subdivision (b).

On appeal, the only contested issue is defendant’s claim that his convictions must

be reversed and the matter remanded for a new trial because the trial court erred in

1 Undesignated statutory references are to the Penal Code.

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denying his motion for self-representation.2 We find no error on this issue and affirm

defendant’s convictions, but we remand the matter for the trial court to address

resentencing issues raised on appeal.

II. FACTS AND PROCEDURAL HISTORY

A. Facts and Charges

Defendant and H.Q. began a dating relationship in August 2017.

On November 17, 2017, defendant struck H.Q. multiple times in the head while

they were arguing inside a vehicle. When H.Q. tried to get out of the vehicle, defendant

punched her in the face, forced her back in, and drove her around for hours. Defendant

was charged with one count of willful infliction of corporal injury upon someone with

whom he had a dating relationship (§ 273.5, count 5) and one count of kidnapping (§ 207,

subd. (a), count 6) arising out of this incident.

On December 15, 2017, following an argument, defendant placed H.Q. into a

chokehold. As a result, H.Q. lost consciousness. When H.Q. regained consciousness,

she was lying on the floor, and defendant was yelling at her. H.Q. attempted to scream,

but defendant began to choke her again and threatened to continue choking her until she

stopped screaming. Defendant was charged with one count of willful infliction of

corporal injury upon someone with whom he had a dating relationship (§ 273.5, count 8)

2 Defendant also contends his sentence enhancements for prior prison terms
pursuant to former section 667.5, subdivision (b), should be stricken in light of recent
amendments to that statute, and the trial court exceeded its authority in “ordering”
defendant to participate in substance abuse counseling and education while serving his
term of imprisonment. However, the People do not contest these issues on appeal.

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and one count of assault by means of force likely to produce great bodily injury (§ 245,

subd. (a)(4), count 7) arising out of this incident.

On December 19, 2017, H.Q. ended her relationship with defendant and asked him

to leave her home. The two began to argue, and defendant took H.Q.’s phone from her.

While they were arguing, H.Q.’s pastor arrived at her front door and began knocking

loudly. H.Q. had texted her pastor earlier and had asked him to come check on her in 30

minutes if he did not hear from her. Defendant would not let H.Q. leave her bedroom to

answer the door. H.Q. tried to scream to get her pastor’s attention, but defendant began

strangling her to make her stop screaming. When H.Q. did not answer the door, her

pastor called 911.

Defendant shut the bedroom door, moved a dresser in front of the door, turned off

the lights, and told H.Q. he was going to stay there and watch her all night. After some

time, police officers arrived, announced their presence, and shouted for them to come out

of the apartment. While the officers were outside, defendant pulled down H.Q.’s pants

and underwear and began to have sex with her. H.Q. did not resist because she was

afraid.

Police officers eventually entered the apartment after obtaining a key from H.Q.’s

apartment manager. They discovered H.Q., shaking and crying, with bruises on both

sides of her neck, and red marks on her carotid arteries. Defendant was escorted out of

the apartment and taken into custody. He was charged with one count of willful infliction

of corporal injury upon someone with whom he had a dating relationship (§ 273.5,

subd.(f)(1), counts 1), one count of rape (§ 261, subd. (a)(2), count 2), one count of

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dissuading a witness (§ 136.1, subd. (b)(1), count 3), and one count of false imprisonment

(§ 236, count 4), arising out of this incident.

B. Relevant Procedural History

During defendant’s preliminary hearing in this matter, he submitted a petition to

proceed in properia persona, which was granted. After repeated attempts to seek

guidance from the court regarding relevant procedures, the court strongly advised

defendant to request appointment of counsel at the time of the arraignment.

On the date defendant’s trial was originally scheduled to commence, defendant

requested a continuance on the ground he needed more time to prepare. As a result, his

trial was continued more than two months to September 17, 2018. On

September 6, 2018, defendant requested counsel be appointed for him, and the trial court

granted the request. Thereafter, the trial was continued multiple times to allow newly

appointed counsel to prepare.

In February 2019, defendant’s appointed counsel declared a conflict, and new

defense counsel was appointed, causing defendant’s trial to be continued yet again to

May 17, 2019.

On May 21, 2019, during pretrial motions, defendant again requested to represent

himself, purportedly over a disagreement with his counsel regarding whether to call

H.Q.’s minor children as witnesses. Following an in camera hearing, the trial court

allowed defense counsel to add H.Q.’s two minor children to the defense witness list, and

defendant withdrew his request to represent himself.

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 On May 22, 2019, jury voir dire commenced. During a break in the proceedings,

defendant again requested to represent himself. Defense counsel objected, noting that the

reason for defendant’s request was again a disagreement over trial strategy. The trial

court proceeded to question defendant on the record to ensure that his request was

knowing, intelligent, and voluntary.3 During this exchange, the trial court admonished

defendant that he would have to abide by many technical rules of evidence and criminal

procedure during trial, and defendant admitted that he previously had problems

attempting to do so while trying to represent himself during his preliminary hearing.

After questioning defendant, the trial court requested the prosecutor state her

position with respect to defendant’s motion to represent himself. The prosecutor objected

on the ground that the request was untimely, appeared motivated by an attempt to

improperly influence witnesses by allowing defendant to question them directly, and

would be disruptive at this stage in the proceedings. The prosecutor also requested that,

should the trial court grant defendant’s request to represent himself, advisory counsel be

appointed given defendant’s past proclivity to switch from self-representation and

appointed counsel. In response, defendant stated he was not trying to delay the trial, and

he would be willing to proceed immediately without a continuance.

Following argument, the trial court denied defendant’s request, stating:

“This trial—so this trial has numerous witnesses. The charges are serious. In my

opinion, the case is complex. It involves a substantial amount of 1101(b), 1108, and

3 Faretta v. California (1975) 422 U.S. 806, 835 (Faretta).

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1109 evidence. It’s also not the best case for somebody to represent themselves who is

not a qualified lawyer . . . . [¶] I’m going to find that the motion is untimely. The jury—

the venire has been sworn in. We’re ready to pick a jury. We have done the motions

with this counsel. The case is complex, as I mentioned. [Defendant] has already sought

to represent himself and then afterwards got counsel again, and I’m not going to go

through this back and forth thing. And I believe this will be disruptive to the trial. It’s

already—we’re already burning into time set aside to select jurors, which means there are

real people out there who are being pulled out of their lives and the important things they

do, and they’re waiting on us. [¶] Again, I was ready to address this yesterday . . . and

now we’re back to it again. So I believe this is untimely because of the place we’re in at

trial and because of the potential disruption, and because of the complexity of the case.

So I’m going to deny the motion.”

C. Conviction and Sentencing

The jury convicted defendant on three counts of willful infliction of corporal

injury upon someone with whom he had a dating relationship (§ 273.5, counts 1, 5, & 8);

one count of rape (§ 261, subd. (a), count 2); one count of dissuading a witness (§ 136.1,

subd. (b)(1), count 3); one count of false imprisonment (§ 236, count 4); one count of

kidnapping (§ 207, subd. (a), count 6); and one count of assault by means of force likely

to produce great bodily injury (§ 245, subd. (a)(4), count 7).

In a bifurcated proceeding, the trial court found true allegations that defendant had

sustained four prior prison sentences qualifying for a sentence enhancement (former

§ 667.5, subd. (b)); a prior conviction qualifying as a serious prior felony (§ 667,

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subd. (a)); and a prior conviction qualifying as a strike offense (§§ 667, subds. (c), (e)(1),

1170.12, subd. (c)(1)).

Defendant was sentenced to a total of 41 years eight months in state prison, which

included one-year enhancements for each of defendant’s four prior prison terms pursuant

to former section 667.5, subdivision (b).

III. DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion in Denying Defendant’s Request for

Self-Representation

The only contested issue raised on appeal is defendant’s claim that the trial court

erred in denying his motion for self-representation. Defendant argues that (1) his motion

was timely, and therefore the trial court’s denial was per se erroneous, and (2) even if

discretionary, the trial court abused its discretion. We do not believe the record supports

either of these contentions.

1. The Trial Court Did Not Err in Concluding Defendant’s Motion Was Untimely

“ ‘ “A criminal defendant has a right to represent himself at trial under the Sixth

Amendment to the United States Constitution.” ’ ” (People v. Jackson (2009) 45 Cal.4th

662, 689 (Jackson).) However, “[i]n order to invoke an unconditional right of self-

representation, a defendant must unequivocally assert the right within a reasonable time

prior to commencement of trial.” (People v. Scott (2001) 91 Cal.App.4th 1197, 1203

(Scott).) “ ‘[T]imely’ means ‘within a reasonable time prior to commencement of trial.’ ”

(People v. Rivers (1993) 20 Cal.App.4th 1040, 1048 (Rivers).)

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 Here, defendant’s request to represent himself was made after both sides had

represented that they were ready for trial; pretrial motions had been heard and resolved;

and the process of jury voir dire was underway. The California Supreme Court has “held

on numerous occasions that Faretta motions made on the eve of trial are untimely.”

(People v. Johnson (2019) 8 Cal.5th 475, 499 (Johnson).) It has also held that requests

made in the midst of trial are clearly not timely for purposes of invoking an absolute right

to self-representation. (Jackson, supra, 45 Cal.4th at p. 690 [request made in the middle

of jury voir dire untimely]; People v. Barnett (1998) 17 Cal.4th 1044, 1105 (Barnett)

[request made during trial untimely].) Based upon these authorities,4 the trial court did

not err in finding defendant’s request to be untimely and denial of that request is not

reversible per se.

2. The Trial Court Did Not Abuse Its Discretion in Denying Defendant’s

Untimely Motion For Self-Representation

“ ‘ “When a motion for self-representation is not made in a timely fashion prior to

trial, self-representation no longer is a matter of right but is subject to the trial court’s

discretion.” ’ ” (People v. Valdez (2004) 32 Cal.4th 73, 103 (Valdez).) “In exercising

that discretion, a trial court is required to consider (1) the quality of counsel’s

representation, (2) the defendant’s prior proclivity to substitute counsel, (3) the reasons

4 The California Supreme Court has not articulated what standard of review
applies in determining whether a defendant’s request for self-representation is timely and
has recently declined to resolve that issue. (Johnson, supra, 8 Cal.5th at p. 501.)
However, we need not resolve the issue here in light of the fact that our Supreme Court
has already held that motions made on the eve of trial or during jury voir dire are
untimely. (Ibid.; Jackson, supra, 45 Cal.4th at p. 690.)

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for the request, (4) the length and stage of the proceedings, and (5) the disruption or delay

which might reasonably be expected to follow the granting of such a motion.” (Scott,

supra, 91 Cal.App.4th at pp. 1203-1204; see Valdez, at p. 103.)

Here, in arguing the trial court abused its discretion, defendant places great weight

on the alleged low quality of defense counsel’s representation. We need not discuss this

point in detail. Even assuming defense counsel’s representation did not meet the quality

of representation desired by defendant,5 this is not sufficient to show an abuse of

discretion where the record shows the trial court could reasonably conclude the remaining

four factors all weighed against granting defendant’s untimely request to represent

himself.

First, the trial court could reasonably conclude defendant had some proclivity to

vacillate with respect to representation by counsel. Defendant had already discharged his

original counsel and opted to represent himself at the time of his preliminary hearing,

only to change his mind shortly before his originally scheduled trial date. Further,

defendant requested to represent himself during pretrial motions, only to withdraw the

request shortly thereafter. Thus, the trial court could reasonably conclude this factor

weighed against granting defendant’s request. (People v. Jenkins (2000) 22 Cal.4th 900,

962 [The trial court “could reasonably conclude that defendant . . . had some proclivity to

5 We note that on appeal, defendant does not contend his counsel’s performance
was deficient to the point that it amounted to ineffective assistance. We also note that the
alleged deficient performance dealt with not subpoenaing H.Q.’s two daughters. The
record amply demonstrates that the daughters were not material witnesses to the alleged
criminal activity. See footnote eight, post.

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vacillate with respect to representation by counsel” based solely on one prior request and

withdrawal.].)

Second, the trial court could reasonably conclude that defendant’s reason for

requesting self-representation was not sufficiently compelling. Defense counsel

represented that the reason for defendant’s request was a disagreement over trial tactics

and strategy. On appeal, defendant confirms the reason for his request was a

disagreement over whether to call H.Q.’s minor children to testify as witnesses. Whether

to call certain witnesses is generally a matter of trial tactics (People v. Williams (1970)

2 Cal.3d 894, 905 [“Whether to call certain witnesses is generally a matter of trial

tactics.”]; People v. Mitcham (1992) 1 Cal.4th 1027, 1059 [same]) and “disagreement

over trial tactics . . . is ‘an insufficient reason to grant an untimely Faretta request’ ”

(Scott, supra, 91 Cal.App.4th at p. 1206). The record does not disclose defendant offered

any other reason for his untimely request. As such, the trial court could reasonably

conclude that this factor weighed against granting defendant’s untimely request for self-

representation.

Third, the trial court could reasonably conclude that the length and stage of the

proceedings weighed against granting defendant’s request. Defendant’s trial had already

been continued on multiple occasions due to his prior request to represent himself and

subsequent request that counsel be reappointed for him. Additionally, defendant waited

until after counsel and the trial court had already extensively discussed and resolved

numerous evidentiary issues before even suggesting a renewed desire to represent

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himself. Thus, the trial court could reasonably conclude that this factor weighed against

granting defendant’s untimely request.

Finally, the trial court could reasonably conclude that granting defendant’s request

would represent a substantial disruption in the proceedings, notwithstanding defendant’s

representation that a continuance was not necessary.6 Defendant’s motion was made at a

time when the venire of prospective jurors had already been sworn, jury voir dire was

already in process, and the parties had already stipulated to dismissal of 12 prospective

jurors based upon the voir dire conducted thus far. Prior to that time, counsel for both

sides, and the trial court, had reached an agreement regarding the trial length; and the trial

court had already time-qualified the prospective pool of jurors based upon this

understanding. In light of defendant’s acknowledgment that he had previously struggled

with the rules of evidence and criminal procedure when attempting to represent himself,

the trial court could reasonably conclude that granting of defendant’s request for self-

6 The fact that defendant did not request a continuance does not render the trial
court’s determination unreasonable, if other facts in the record support a finding that
granting a request for self-representation would still be disruptive. (Barnett, supra,
17 Cal.4th at p. 1106 [“That defendant did not seek a continuance is not
determinative.”].)

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representation would create unwarranted disruption and delay in the proceeding.7

The record discloses a reasonable basis for the trial court to conclude a majority of

the relevant factors weighed against granting defendant’s untimely motion for self-

representation. As such, we cannot conclude on this record that the trial court abused its

discretion in denying defendant’s motion, and we decline to reverse his convictions on

this ground.

3. Defendant Has Not Established Prejudice Warranting Reversal

Additionally, even if we had found error, we do not believe defendant has

established prejudice warranting reversal. “Once trial has commenced, the right to self-

representation is no longer based on the Constitution.” (Rivers, supra, 20 Cal.App.4th at

p. 1050.) Because the grant or denial of an untimely request is a matter of the trial

court’s discretion, “error is not automatically reversible, but is reviewed under the

‘harmless error’ test of [People v. Watson (1956) 46 Cal.2d 818] . . . [defining] the

standard as whether in the absence of the error, it is ‘reasonably probable’ that a result

more favorable to the appellant would have been reached.” (Ibid.)

7 Defendant’s argument on appeal that his lack of technical knowledge is not
relevant is misplaced. A defendant’s lack of technical knowledge or skill is not a basis
for denying the timely assertion of his constitutional right to represent himself. (Faretta,
supra, 422 U.S. at pp. 834-835.) However, an untimely request for self-representation is
no longer a matter of right, and the trial court is entitled to consider the potential
disruption to proceedings that may be caused by a defendant’s lack of skill or ability.
(See People v. Bradford (2010) 187 Cal.App.4th 1345, 1354 [“[T]he court could
reasonably determine that notwithstanding appellant’s ability to speak cogently, he was
likely to get sidetracked on tangential issues . . . [or] ‘might not comply with procedural
rules during self-representation’ ” in denying untimely motion for self-representation.].)

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 Here, defendant sought to represent himself because he disagreed with defense

counsel’s decision to refrain from calling H.Q.’s minor children as witnesses. However,

during his own testimony on the stand, defendant admitted one of the children was never

present and never witnessed any of the incidents. Defendant further testified that the

other child witnessed only a brief part of the December 15, 2018 incident, and even then,

the child did not witness anything that would have allowed her to directly contradict or

corroborate H.Q. or defendant’s differing versions of what transpired.8 Other than

calling these two witnesses, defendant has not identified anything else that he would have

done differently, if given the opportunity to represent himself.

It was defendant’s burden to show a reasonable probability that the results would

have been different had he been given the opportunity to represent himself. Where the

only act complained of is the failure to call witnesses who, by defendant’s own

admission, had no personal knowledge of the actual matters in dispute before the jury,

defendant has not met his burden. Thus, even if defendant had shown an abuse of

discretion in the trial court’s denial of his request for self-representation, defendant would

not be entitled to reversal on this record.

8 H.Q. testified that on December 15, 2017, defendant placed her into a
chokehold; she lost consciousness; and she was lying on the bathroom floor when she
regained consciousness. Defendant testified that he discovered H.Q. on the bathroom
floor, “out of it,” and called H.Q.’s daughter to the bathroom; but H.Q.’s daughter left
after H.Q. told her to “run.” According to defendant, H.Q.’s daughter dismissed H.Q.’s
warning and went back to her room or prior activity. Thus, according to defendant’s own
testimony, H.Q.’s daughter did not witness the events that caused H.Q. to end up on the
bathroom floor or the events that transpired after. Instead, H.Q.’s daughter only briefly
witnessed H.Q. lying on the bathroom floor—a fact that was not in dispute between H.Q.
and defendant’s differing version of events.

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B. The Matter Should Be Remanded To Address Resentencing Issues

1. Defendant’s Prison Prior Enhancements Should Be Stricken

Defendant argues that his four, one-year sentence enhancements imposed as the

result of a prior felony convictions involving terms in state prison should be stricken in

light of recent amendments to section 667.5, subdivision (b) (Stats. 2019, ch. 590, § 1)

embodied in Senate Bill No. 136 (2019-2020 Reg. Sess.). The amendment became

effective January 1, 2020, and precludes the imposition of one-year sentence

enhancements for a prior prison term, unless the prior offense was sexually violent in

nature. (§ 667.5, subd.(b).) The People concede that the prior convictions underlying

defendant’s sentence enhancements here would not qualify for enhancements under the

amended statute. Because the amendment is ameliorative in nature and defendant’s

conviction was not yet final at the time the amendment took effect, we agree that

defendant’s one-year sentence enhancements pursuant to section 667.5, subdivision (b),

should be stricken.

2. Unauthorized Sentence on Count 3

Defendant was sentenced to a consecutive term of one-third the middle term on

count 3 for dissuading a witness in violation of section 136.1, subdivision (b). The

People and defendant note that the trial court incorrectly used three years as the middle

term when calculating this portion of defendant’s sentence. According to the People and

defendant, this resulted in an unauthorized sentence because the statutory middle term is

actually two years and “the most the trial court could have imposed for count 3 was one-

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third the middle term of two years (eight months).” We agree defendant’s sentence on

this count is unauthorized, but not for the reasons advanced by the People and defendant.

It is true that the middle term for a violation of section 136.1, subdivision (b), is

two years. (§ 136.1, subd. (b); § 1170, subds. (a)(3), (h).) However, defendant’s

conviction on count 3 was for dissuading H.Q. from reporting felonies for which

defendant was also convicted. “When the sentence on a violation of section 136.1 is

ordered to run consecutively to the sentence for the felony to which the dissuading

pertained, section 1170.15 authorizes the imposition of a full strength middle term,

notwithstanding the one-third of the middle term limitation on subordinate counts under

section 1170.1, subdivision (a).” (People v. Fernandez (2003) 106 Cal.App.4th 943, 946

fn. 2; see § 1170.15) Where the trial court exercises its discretion to impose a

consecutive term for violation of section 136.1 under such circumstances, the imposition

of a full middle term pursuant to section 1170.15 is mandatory. (People v. Woodworth

(2016) 245 Cal.App.4th 1473, 1479 [“[I]f the trial court chooses consecutive sentencing

it must impose a full-term sentence for the witness dissuasion count.”].)

Thus, once the trial court chose to impose a consecutive sentence on count 3, it

was required by statute to impose the full middle term under section 1170.15. Contrary

to the position taken by the People and defendant on appeal, the trial court’s sentence on

count 3 was unauthorized because it failed to impose the mandatory term required by

statute in light of its discretionary sentencing decision to run the sentence

consecutively—not because it imposed a term in excess of its authority.

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 Generally, “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.’ ” (People v.

Buycks (2018) 5 Cal.5th 857, 893.) Thus, we believe it appropriate to remand the matter

for a full resentencing in this case.

If upon remand, the trial court again exercises its discretion to impose a

consecutive term on count 3, it is required to impose the full middle term on that count,

pursuant to section 1170.15. We acknowledge that this may result in a sentence greater

than that originally imposed on count 3 without running afoul of constitutional principles.

While “the California Supreme Court has held that ‘a valid sentence may not be increased

after formal entry in the minutes,’ because doing so would implicate double jeopardy

concerns . . . the Supreme Court has also held that an unauthorized sentence, such as

when the court is required to impose a certain minimum term but imposes a lesser term

instead, ‘is considered invalid or “unlawful” and may be increased even after execution

of the sentence has begun.’ ” (People v. Roth (2017) 17 Cal.App.5th 694, 702; see

People v. Vizcarra (2015) 236 Cal.App.4th 422, 438 [Where unauthorized sentence was

the result of failure to impose statutorily mandated provisions, defendant can be

resentenced to a greater term upon remand.].)

Because the error here involves the trial court’s failure to impose a mandatory

statutory term given its decision to impose a consecutive sentence for violation of

section 136.1, upon remand, the trial court is not prohibited from imposing the actual

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term required by statute on count 3, even if doing so results in a greater sentence.9 The

trial court is, of course, also free to exercise its discretion to impose a concurrent term

upon remand, if it deems the mandatory term required under section 1170.15 too harsh.

We express no opinion as to how the trial court should exercise its discretion in this

regard.

3. Correction of The Abstract of Judgment

Finally, both defendant and the People draw our attention to inconsistencies in the

abstract of judgment. Since the matter is being remanded for resentencing, we will direct

the trial court to address the following issues upon remand:

(1) The trial court purportedly ordered defendant to participate in counseling and

substance abuse education as part of his sentence. Appellant contends, and the People

agree, that the trial court did not have authority to do so. We agree that the trial court has

authority only to recommend such counseling and education and may not order it as part

of defendant’s sentence. (§ 1203.096) The trial court will have the opportunity to clarify

any of its recommendations with respect to substance abuse counseling and education

upon remand.

(2) The People note that the abstract of judgment incorrectly reflects that

defendant was convicted on count 3 for a violation of section 136.1, subdivision (c)(1),

despite the fact that the jury instructions on this charge pertained to section 136.1,

9 Although, as a practical matter, since defendant’s four one-year prison prior
enhancements under section 667.5, subdivision (b), will be stricken, the aggregate term
on defendant’s sentence on remand would not exceed the aggregate term of his original
sentence, regardless of the trial court’s sentencing choices as to count 3.

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subdivision (b)(1). Upon remand, the trial court will have an opportunity to ensure that

any new abstract of judgment correctly reflects the offense for which defendant was

convicted.

(3) Finally, the People note that the trial court stated defendant’s total term of

imprisonment was to be 40 years eight months during oral pronouncement, while the

abstract of judgment reflects a total term of 41 years eight months. Normally, “[w]here

there is a discrepancy between the oral pronouncement of judgment and the abstract of

judgment, the oral pronouncement controls.” (People v. Whalum (2020) 50 Cal.App.5th

1, 15.) However, the People note that it is the trial court’s oral pronouncement that

appears to be a mathematical error. Since defendant’s matter is being remanded for a full

resentencing that will presumably result in a different aggregate term than originally

imposed, the issue is moot. We are confident the trial court’s new pronouncement of

judgment and new abstract of judgment will take care to avoid any such discrepancies

upon resentencing.

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 IV. DISPOSITION

Defendant’s sentence is vacated, and the matter is remanded to allow the trial

court to exercise its discretion in resentencing defendant on all counts. Upon

resentencing, the trial court is directed to strike defendant’s four, one-year sentence

enhancements pursuant to section 667.5, subdivision (b). If the trial court exercises its

discretion to impose a consecutive sentence for defendant’s conviction on count 3 for

violation of section 136.1, the trial court is further directed to impose the full, middle

term on that count as required by section 1170.15. The court is further directed to amend

the abstract of judgment to show that defendant was convicted in count 3 of a violation of

section 136.1, subdivision (b)(1), not section 136.1, subdivision (c)(1). Finally, the trial

court is directed to clarify in any subsequent sentencing and abstract of judgment that any

recommendations with respect to counseling and education are not orders. In all other

respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.
We concur:

CODRINGTON
Acting P. J.

SLOUGH
J.

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