California Court of Appeal Sep 3, 2020 No. E073648Unpublished
Filed 9/3/20 P. v. Dorsey 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E073648
v. (Super.Ct.Nos. INF1801983, INM1901110 & INM901845) STEVEN ANDREW DORSEY, OPINION Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John M. Davis, Judge.
Affirmed in part, remanded in part 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 Pulos and Robin
Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury found Steven Andrew Dorsey guilty of two counts of violating a protective
order and one count of domestic violence resulting in a traumatic condition while having
a previous domestic violence conviction. The court sentenced Dorsey to 13 years in
prison, which included three one-year enhancements for prior prison offenses. It also
included in its minute order and abstract of judgment a recommendation that Dorsey
supra, 42 Cal.App.5th at p. 341; see generally In re Estrada (1965) 63 Cal.2d 740, 745.)
Accordingly, the three one-year sentence enhancements must be stricken.
In general, when an error affects part of a sentence, we must remand for a full
resentencing on all counts and allegations, unless the court already imposed the
maximum allowable term. (People v. Buycks (2018) 5 Cal.5th 857, 893, 896, fn. 15.) The
trial court imposed the maximum possible sentence for Dorsey’s felony conviction but
chose to impose concurrent sentences for his two misdemeanor convictions. On remand
for resentencing a trial court is “[n]ot limited to merely striking illegal portions” of a
sentence but “may reconsider all sentencing choices,” “because an aggregate prison term
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is not a series of separate independent terms, but one term made up of interdependent
components.” (See People v. Hill (1986) 185 Cal.App.3d 831, 834; People v. Hubbard
(2018) 27 Cal.App.5th 9, 13.) This applies equally to sentences involving mixed custody
periods between consecutive felony and misdemeanor sentences. (See People v. Brown
(2016) 247 Cal.App.4th 1430, 1433 [finding trial courts may impose full consecutive
terms for misdemeanor convictions, as statute limiting the length of subordinate
consecutive terms to one-third the midterm for the relevant conviction only apply to
consecutive felony sentences].) The decision whether to impose a concurrent term or a
consecutive term is within the discretion of the sentencing court. Thus, the trial court may
reconsider Dorsey’s overall sentence on remand. (§ 669; People v. Bradford (1976) 17
Cal.3d 8, 20.)
B. Anger Management Counseling
Dorsey also argues the trial court had no statutory authority to order him to
participate in anger management classes in prison. The People concede the trial court
could not order such classes but argue there’s no need to modify or strike any portion of
the minute order and abstract of judgment because the court was free to recommend the
classes. We agree the trial court did not have authority to order or recommend anger
management counseling.
At sentencing, Probation recommended the court exercise its authority under
section 1203.096 to have Dorsey participate in substance abuse counseling while
imprisoned. Section 1203.096, subdivision (a), says a trial court may “recommend in
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writing that the defendant participate in a counseling or education program having a
substance abuse component while imprisoned.” (§ 1203.096, subd. (a).) Other courts
have found this plain language to mean exactly what it says: that a court can only
recommend, not order, a defendant participate in substance abuse counseling. (People v.
Peel (1993) 17 Cal.App.4th 594, 599-600 (Peel).)
However, in sentencing Dorsey the trial court substituted “anger management” for
“substance abuse” in the relevant recommendation from Probation, so that the minute
order and abstract of judgment stated, “[Dorsey] to participate in a counseling or
educational program having [an] Anger Management component [through] the Division
of Adult Institutions.” The People concede there is no statutory authority supporting a
court’s ability to recommend, let alone order, a defendant to participate in anger
management counseling. Instead, the People argue the court may make such a
recommendation using its broad discretionary authority in sentencing, and that in any
case prison authorities are free to disregard the trial court’s recommendations. (Peel,
supra, 17 Cal.App.4th at p. 599 [finding “[w]hen a trial court makes the findings
called for in subdivision (b) of section 1203.096, it must make a written
recommendation . . . . However, there apparently is no corresponding requirement the
appropriate authorities heed the recommendation.”].) Given this, the People assert the
trial court’s minute order and abstract do not need correcting.
A court has discretion in sentencing, but this discretion must be based on
punishment prescribed by statute. (§ 12; People v. Lara (1984) 155 Cal.App.3d 570,
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574.) Indeed, “[a] court is without authority to impose a sentence not prescribed by
statute.” (In re Andrews (1976) 18 Cal.3d 208, 212.) We cannot identify, and the People
haven’t provided, any statute authorizing the trial court to either recommend or order
Dorsey to attend anger management classes. Nor have the People provided authority to
support their claim that the trial court’s sentencing discretion includes the discretion to
make recommendations in the absence of statutory authority. If anything, the existence of
statutory authorization for trial courts to recommend substance abuse counseling implies
trial courts lack the discretionary authority to recommend anger management classes as
part of a sentence absent statutory authorization. We note that trial courts do have the
discretion to impose anger management classes as a term or condition of probation, and
nothing in our holding here should be read as limiting trial court discretion in that distinct
setting. (See People v. Cota (2020) 45 Cal.App.5th 786, 793.) That prison authorities are
free to ignore the recommendation does not mean the trial court has the power to make it.
We therefore strike the relevant provision from both the minute order and abstract of
judgment.
III
DISPOSITION
We strike the three one-year prison prior term enhancements imposed under
section 667.5, subdivision (b), and remand for resentencing. We also strike the portions
of the sentencing minute order and abstract of judgment stating “[Dorsey] to participate
in a counseling or educational program having [an] Anger Management component
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[through] the Division of Adult Institutions.” The clerk of the superior court is directed to
forward a certified copy of the amended abstract of judgment to the Department of
Corrections and Rehabilitation. In all other respects, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH J. We concur:
RAMIREZ P. J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant's three one-year prior prison term enhancements must be stricken due to a change in law, and that the trial court lacked statutory authority to order or recommend anger management counseling.
Issues
Whether the defendant is entitled to retroactive application of Senate Bill No. 136 regarding prior prison term enhancements.
Whether the trial court had the authority to order or recommend that the defendant participate in anger management counseling while imprisoned.
Disposition. Affirmed in part, remanded in part.
Quotations verified verbatim against the opinion
“We also agree with Dorsey the trial court was not authorized to recommend anger management counseling.”
“We cannot identify, and the People haven’t provided, any statute authorizing the trial court to either recommend or order Dorsey to attend anger management classes.”