Filed 11/9/20 P. v. Rush CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

PERRY J. RUSH,

Defendant and Appellant.

 H045678

 (Santa Clara County

 Super. Ct. No. C1764145)

Following a trial, a jury found defendant Perry J. Rush guilty of assault with a 

deadly weapon other than a firearm (Pen. Code, § 245, subd. (a)(1))1(245(a)(1)) 

(count 1) and battery with infliction of serious bodily injury (§ 243, subd. (d)) (243(d)) 

(count 2). As to each count, the jury found true the allegation that in the commission of 

the crime, defendant personally inflicted great bodily injury upon the victim, D.M.,

within the meaning of sections 12022.7, subdivision (a) (12022.7(a)) and 1203, 

subdivision (e)(3).

On appeal, defendant argues that (1) his trial counsel rendered ineffective 

assistance of counsel by telling the jury in his opening statement that defendant would 

testify at trial but then, without the occurrence of any unforeseeable events, not 

presenting defendant’s testimony; (2) the trial court violated section 654 by imposing a 

sentence on count 2 and not staying the punishment; and (3) the enhancement imposed

under section 12022.7(a) must be stricken because such enhancement does not apply 

1 All further statutory references are to the Penal Code.
2

where “infliction of great bodily injury is an element of the offense” (§ 12022.7, 

subd. (g)) and “great bodily injury” is an element of battery with infliction of serious 

bodily injury (§ 243(d)).

Defendant has not established his claim of ineffective assistance of counsel. In 

addition, although the People concede sentencing error, the record does not actually 

reflect that the trial court orally pronounced sentence on any count of which defendant 

was found guilty and the associated enhancement allegations found true by the jury. 

Accordingly, we reverse with directions for the trial court to clarify whether it intended to 

pronounce sentence and suspend execution of sentence and if that was the court’s intent, 

to properly orally pronounce sentence.

I

Procedural History

By information, defendant was charged with committing two counts of felony 

assault upon D.M. on May 21, 2017: assault with a deadly weapon and instrument other 

than a firearm, namely a hammer and a “pool cue stick” (count 1) (§ 245(a)(1)) and 

assault by means of force likely to produce great bodily injury (count 2) (§ 245,

subd. (a)(4)). The information further alleged as to each count that in the commission or 

attempted commission of the offense, defendant personally inflicted great bodily injury 

upon D.M., a person not an accomplice to the offense, within the meaning of 

sections 12022.7(a), and 1203, subdivision (e)(3).

A first amended complaint was filed on November 21, 2017. The reference to a 

hammer in count 1 was omitted, so that defendant was charged with committing felony

“assault . . . with a deadly weapon and instrument other than a firearm, a pool stick”

(§ 245(a)(1)). Count 2 was amended to charge felony battery with infliction of serious 

bodily injury (§§ 242, 243(d)). An allegation of personal infliction of great bodily injury 

was attached to each count (see §§ 12022.7(a), 1203, subd. (e)(3)).
3

Following a trial, the jury found defendant guilty of both counts, and it found the 

associated enhancement allegations to be true. Under section 245(a)(1), “[a]ny person 

who commits an assault upon the person of another with a deadly weapon or instrument 

other than a firearm shall be punished by imprisonment in the state prison for two, three, 

or four years, or in a county jail for not exceeding one year, or by a fine not exceeding 

ten thousand dollars ($10,000), or by both the fine and imprisonment.” Under 

section 243(d), “[w]hen a battery is committed against any person and serious bodily 

injury is inflicted on the person, the battery is punishable by imprisonment in a county 

jail not exceeding one year or imprisonment pursuant to subdivision (h) of [s]ection 1170 

for two, three, or four years.” Section 12022.7(a), provides: “Any person who 

personally inflicts great bodily injury on any person other than an accomplice in the 

commission of a felony or attempted felony shall be punished by an additional and 

consecutive term of imprisonment in the state prison for three years.” (Italics added.)

The probation report prepared for sentencing confusingly recommended that the 

court commit defendant to the California Department of Corrections and Rehabilitation 

for eight years and suspend execution of the sentence and that the court suspend 

imposition of sentence and place defendant on formal probation for three years. The 

report suggested a six-year term for count 1 and its associated enhancement, consisting of 

a middle term of three years (§ 245(a)(1)) and a consecutive three-year enhancement term 

(§ 12022.7(a)). The report also suggested that the court impose a consecutive two-year 

term on count 2 and its associated enhancement, but it did not separately specify a 

recommended term for count 2 or its enhancement. The report further stated: “This 

officer recommends the midterm sentence of three years state prison as to [c]ount one, 

with the enhancement of three (3) years for personally inflict[ing] great bodily injury to 

be imposed. . . . [C]onsecutive sentencing is further recommended as to [c]ount [t]wo, 

along with the enhancement for personally inflict[ing] great bodily injury to be imposed, 

for a total of eight (8) years.” The report did not discuss section 654.
4

At the sentencing hearing on January 19, 2019, the trial court indicated that 

“the suspension of the state prison sentence accomplishes more of what the Court wishes 

to accomplish here, which is that Mr. Rush needs to get on top of the anger issues that led 

to this incident.” The court stated that it was going to impose the midterm because the 

victim’s injuries were serious, but it did not specify the count or conviction. The court 

stated: “The defendant is committed to the California Department of Corrections and 

Rehabilitation for a period of eight years. The execution of said sentence is suspended. 

Imposition of sentence [is] suspended, formal probation is granted for a period of 

three years.” It further stated with regard to probation: “A county jail sentence is 

imposed as follows: As to Count 1, the defendant will serve one year in the county jail; 

as to Count 2 the defendant will serve . . . one year in the county jail, those counts will 

run consecutive to one another.”

At the January 19, 2018 sentencing hearing, the court did not separately impose 

terms of imprisonment on each count and its associated enhancement or expressly state 

whether any sentence ran concurrently or consecutively. Neither did the court mention 

section 654’s proscription against multiple punishment.

II

Evidence

Number One Broadway was a bar on the top floor of a two-story building on the 

corner of South Santa Cruz Avenue and Broadway in Los Gatos. Its front entrance was 

located off South Santa Cruz Avenue. An exterior balcony, accessible by patrons of the 

bar, wrapped around the outside of the bar.

Number One Broadway had live music and dancing on weekends. The bar had a 

pool table near a rear exit, which opened onto the balcony. G.A. worked weekends as a 

bouncer at the bar, and he had a different weekday job. At the time of trial, G.A. had 

worked at Number One Broadway for close to 13 years. G.A. knew defendant as a 

regular at the bar.
5

On the evening of May 20, 2017, the bar was three-quarters full and people were 

dancing. G.A. recalled that defendant arrived shortly before 10:00 p.m. At some point, 

the bouncer’s attention was drawn to defendant and another man, D.M. The men were 

staring at each other, and defendant appeared angry and was pointing. D.M. was 

shrugging his shoulders. People were moving away from them. The bouncer approached 

them and “asked, ‘What’s the problem?’ ” Defendant complained that D.M. had been 

bumping into him all night, and he wanted the bouncer to do something about it. At trial, 

the bouncer testified that it was common for people to bump into each other on the dance 

floor but that he had not personally seen D.M. bump into defendant.

On the night of the incident, the bouncer asked D.M. to give defendant some 

“distance,” and D.M. backed off. Defendant went toward the pool table and stood there. 

The bouncer told defendant to “just leave it alone.” But defendant “continued to wave at 

[D.M.] with his hands saying, come over here.” The bouncer discouraged D.M. from 

walking across the room to defendant. Sometime later, the bouncer noticed D.M. 

walking across the dance floor toward defendant, and the bouncer followed. Defendant 

and D.M. headed to the rear exit. Defendant walked out first, and D.M. followed.

Watching out a window, the bouncer saw the two men on the balcony; defendant 

had a pool stick in his hand. He could not hear what was being said, if anything. The 

bouncer witnessed defendant turn and raise the pool stick. As the stick was being raised, 

D.M. began to back up and raise his arm to block it. Defendant struck D.M. on the left 

forearm with the center of the stick. At trial, the bouncer testified that based on “the arc” 

of the pool stick, it appeared that the stick would have struck the center of D.M.’s head if 

he had not blocked it.

The bouncer, who was out on the balcony by this point, took the pool stick from 

defendant. The stick belonged to the bar, and the bouncer believed it was made of oak 

wood or some other hardwood. The bouncer testified that defendant had seemed upset 

and that D.M. had looked confused. Although at the time it did not appear to the bouncer 
6

that D.M. needed immediate medical attention, D.M. was holding his arm. At trial, the 

bouncer testified that defendant had been “the aggressor.”

The bouncer told both men to leave, and he had them go out by different doors. 

Defendant went out the rear, and D.M. left through the front.

Later that night, the bouncer discussed the incident with police. At a subsequent 

time, he spoke with Detective James Wiens.

At trial, D.M. testified that on May 20, 2017, he arrived at Number One Broadway 

at 9:30 p.m. While D.M. was dancing, another man on the dance floor, identified at trial

as defendant, complained that D.M. had bumped into him. D.M. testified that he 

apologized and said that he was “just there to have a good time.” Defendant was “still 

angry” and argumentative, and he complained about D.M. bumping into him. This initial 

encounter ended when the bouncer intervened. At trial, D.M. admitted that on the dance 

floor, he had bumped into defendant once or twice and that he had probably bumped into 

others.

D.M. acknowledged that later that night, he had gone out through the bar’s rear 

door near the pool table. D.M. indicated that defendant had not gestured for him, or 

otherwise encouraged him, to come out onto the balcony. D.M. denied that when he 

went out onto the balcony, he was mad at defendant or trying to fight defendant.

D.M. testified that when he went outside, defendant immediately “swung a pool 

stick” at his head, and he raised his arm to block it. According to D.M., the stick struck 

his forearm and the side of his neck, but most of the force landed on his arm. D.M. 

described the resulting arm pain as “very painful” and a “10” on a pain scale of one to 10, 

with 10 being the worst pain he had felt in his whole life. The bouncer told them both to 

leave, and he sent them out by separate doors.

D.M. testified that he complied, and after leaving the bar through the front door, 

he walked down Santa Cruz Avenue toward his car. D.M. recalled hearing someone 

talking, but testified that he did not hear the words said or see anyone. According to 
7

D.M., when he turned his head, he saw defendant approximately 50 feet away, standing 

in front of his pickup truck. Its door was open. As D.M. walked over to defendant’s 

truck, defendant was looking directly at D.M. At trial, D.M. testified that the truck had 

been parked on the corner where Number One Broadway was located, beneath the bar’s 

balcony, toward the back of the building. According to D.M., at that time he approached 

defendant, he believed that defendant was going to apologize to him.

But in fact defendant was still angry about D.M. bumping into him, and defendant 

began arguing with D.M. They began to scuffle and grab each other in front of 

defendant’s pickup truck. According to D.M., they accidently fell “halfway” into the 

truck. But D.M. conceded that it had been his “force” that had caused them to fall. 

Defendant had fallen backward into the truck, and D.M. had fallen partially on top of 

defendant.

At trial, D.M. initially testified that after they fell into the truck, defendant hit him 

with his fist, and then D.M. hit defendant back with his free right hand. But later, D.M. 

admitted that at the preliminary hearing he had been unable to recall who had hit whom 

first and that he still did not specifically recall defendant hitting him first. D.M. 

acknowledged that during this confrontation, he hit defendant three or four times in the 

face. Defendant repeatedly hit D.M.’s head with “a metal object that looked like a 

hammer.” D.M. became scared and ran across the street to a park. At trial, D.M. 

maintained that there was no possibility that his left arm had been injured by the hammer 

rather than the pool stick.

On cross-examination, D.M. admitted that on the night of the incident, he had had 

approximately four vodka sodas. He conceded that he had “some memory problems” 

concerning that night.

After the clash with defendant, D.M. called his former girlfriend—with whom he 

later reconciled—and asked her to pick him up. He did not call police and report an 
8

assault. But he was not surprised when the police showed up since he was “bleeding 

severely” and he figured somebody would call the police.

At approximately 12:16 a.m. on May 21, 2017, Frank Bazzar, an officer with the 

Town of Los Gatos, was dispatched to a park, which was across the street from Number 

One Broadway. It was the officer’s understanding that defendant’s girlfriend had called 

the police.

When Officer Bazzar found D.M. wandering in the park, he activated his body 

camera. The officer had D.M., who appeared to be in pain, sit down. The officer noticed 

several lumps on D.M.’s head. D.M. was bleeding from several small cuts on his head, 

and the blood was dripping down his face and onto his shirt, arms, and pants. D.M. was 

“babying his left arm.” Officer Bazzar took a statement from D.M. while he was being 

treated by paramedics, who also had been dispatched to the park. D.M. was taken to 

Valley Medical Center for further treatment.

Defendant was identified as a potential suspect by police. Officer Bazzar called 

defendant’s phone number, and when someone answered, he identified himself as a 

police officer and said he wished to speak with defendant. There was silence, and then 

the call was disconnected. Officer Bazzar then called again, and the call went straight to 

voicemail.

Officer Bazzar testified that he located blood in the first parking stall in the alley 

behind Number One Broadway and followed the trail along the sidewalk on Broadway to 

the corner of Broadway and Santa Cruz and across the street. He noticed a pool of blood 

but then lost the trail. On his next shift, Officer Bazzar located D.M.’s car, which was 

parked on the “west curb line” of South Santa Cruz Avenue, pointing southbound 

towards Number One Broadway, near 20 South Santa Cruz Avenue. The car was parked 

roughly 125 feet to the north of Number One Broadway’s entrance.

Detective Wiens, who was assigned to investigate the assault at Number One 

Broadway, went to Valley Medical Center, where he took a statement from D.M., who 
9

was in a hospital bed and heavily medicated. D.M. indicated that he had been confronted 

by a man on the dance floor after he had bumped into the man, and they had been 

separated. D.M. told the officer that he had gone outside, where the man had hit him 

once with a pool stick, striking his arm and neck. D.M. told the officer that after that, the 

man and he were ejected from the bar. D.M. indicated that he then encountered the same 

man outside the bar, and a scuffle had ensued. The man had reportedly hit D.M. in the 

head multiple times with “a metal object similar to a hammer.”

Detective Wiens had conducted a follow-up interview with the bouncer. The 

bouncer told the officer that he had “seen them arguing on the dance floor,” and he had 

“split them up.” D.M. had seemed dumbfounded by the situation; he had apologized and 

said, “[H]ey, you know, I’m just here to have a good time.” The bouncer also told the 

officer that he had seen defendant standing at the pool table and gesturing for or taunting 

D.M. to come and fight. The bouncer had seen D.M. walking toward defendant and then 

the two of them go outside. He had then seen defendant strike D.M. with a pool stick. 

The bouncer had gone outside, taken the pool stick from defendant, and broken them up. 

The bouncer told Detective Wiens that defendant had been “the dominant aggressor.”

Dr. Tiffany Chao, a general and trauma surgeon at Santa Clara Valley Medical 

Center, treated D.M. when she came into work on the morning of May 21, 2017. It was 

her understanding that D.M. had come in with scalp lacerations, a broken nose, and a 

broken arm and that he had been hit on the head with a hammer and on the arm with a 

pool stick. X-rays revealed a broken ulna, which is a forearm bone. It had been broken 

transversely. This type of fracture generally occurs “when someone’s arm is over [his or 

her] head and . . . then [an] item comes across it.” A CT scan showed a hematoma in his 

right scalp and a broken left nasal bone.
10

III

Discussion

A. Alleged Ineffective Assistance of Counsel: Promise Made in Opening Statement

1. Background

During his opening statement on November 28, 2017, defense counsel said in part, 

“[T]he evidence will show that [D.M.] was dishonest when he told the police that my 

client came around and hit him with a hammer. But, in fact, what he did, he walked all 

the way around. He punched my guy in the jaw. And he had to have surgery on that 

jaw. . . . Mr. Rush is gonna testify to this. Mr. Rush will testify. . . . And he’ll tell you 

what happened. He’ll tell you that he was punched violently in the jaw, knocked back 

into his vehicle, and pummeled -- pummeled by [D.M.].” Defense counsel asserted that 

“[t]his was a violent fight that was initiated by [D.M.].” Defense counsel indicated that 

defendant would state that “[h]e was in a bar where there was an unprovoked attack.” 

Defense counsel told the jury, “[I]t will be clear to you that anything Mr. Rush did this 

night was self-defense,” and “it will be clear to you based on those facts that there’s only 

one verdict you’ll be able to reach in this case, and that verdict will be not guilty.”

After the prosecution called its final witness in its case-in-chief, and outside the 

jury’s presence, the court discussed various matters with counsel and denied defense 

counsel’s section 1118.1 motion. The trial court spoke with counsel and defendant about 

defendant’s decision whether to testify.

The trial court reminded defendant that he had a constitutional right to testify and 

a separate constitutional right not to testify and to remain silent. On the record, the trial 

court reported that there had been an off-the-record conference on jury instructions. 

The trial court stated that defense counsel had informed the court that he would be 

requesting a self-defense instruction and that the court had indicated it was disinclined to 

grant such a request because it did not see any evidence to support such instruction. 

Defense counsel had said that he wanted to speak with defendant “specifically about that 
11

in terms of [defendant’s] analysis and decision to testify.” When then questioned by the 

court on the record, defense counsel indicated that he had had an “adequate opportunity 

to discuss the self-defense issue, as well as any other potential issues with respect to [his]

client’s right to testify or not testify.” Defense counsel said that he was deferring to 

defendant “in terms of how he feels about [testifying].” In response to the court’s 

questions, defendant indicated that he had had an opportunity to think about exercising 

one of those constitutional rights and speak to his counsel and that his decision was “[n]ot 

to testify.”

In the presence of the jury, the prosecution rested its case. The trial court asked 

defense counsel whether he had any evidence or witnesses that he wished to present. 

Defendant counsel stated, “Your Honor, in spite of my comments in opening argument, 

the Defense has decided to rely on the state of the evidence as it exists, and we will rest.”

In closing argument, the prosecutor said among other things, “[T]here’s a very 

good reason the judge told you at the very begin[ning], before we stood up for opening 

statements, that [what] the attorneys say is not evidence because we can get up and say 

anything we want.” He said, “[The] trial itself is where the rubber meets the road and all 

of the evidence comes out.” He pointed out that “the Defense ha[d] the same subpoena 

power as [he did.]”

Defense counsel responded in his closing argument. He said, “I’m not as good 

[as] I used to be. I’m getting to that age where I’m slipping.” He acknowledged, “I made 

some mistakes. Some things got by me.” He told the jury, “Like [the prosecutor is] 

saying, in opening argument you were misled. Hey, I should not have said my client was 

going to testify. What I should have said is, my client will testify if [the prosecutor] 

makes a case. Because I have an absolute right to rely on the state of the evidence, and I 

had to the fight the urge to go for a knockout and take the decision.” Defense counsel 

also told jury, “But you can’t blame what I say on my client. And nothing we say is 

evidence.”
12

In closing argument, defense counsel also reminded the jury that the prosecution

had the burden of proving defendant’s guilt beyond a reasonable doubt, that the defense 

had no burden of proof, and that defendant was presumed innocent. Defense counsel 

emphatically faulted himself for promising that defendant would testify, and he stressed 

that defendant had “an absolute constitutional right not to testify.” He suggested that the 

defense case “came in through the district attorney.” He argued that the prosecutor 

“brought in the photos of my client injured through the officer [who testified].”

During rebuttal, the prosecutor stated, “I want to be clear when I talk about what 

defense counsel promised in opening. I’m talking about the things he said about the 

defendant’s injuries. I am not . . . commenting on his failure to take the stand. That’s 

completely his right. And I won’t say a word about that. You shouldn’t consider that 

one way or another.”

2. Governing Law

The standard for evaluating a claim of ineffective assistance of counsel is well 

established. It requires a two-prong showing of deficient performance and resulting 

prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) “Failure to 

make the required showing of either deficient performance or sufficient prejudice defeats 

the ineffectiveness claim.” (Id. at p. 700.)

As to deficient performance, a defendant “must show that counsel’s representation 

fell below an objective standard of reasonableness” measured against “prevailing 

professional norms.” (Strickland, supra, 466 U.S. at p. 688.) “Judicial scrutiny of 

counsel’s performance must be highly deferential.” (Id. at p. 689.)

“On direct appeal, a conviction will be reversed for ineffective assistance only if

(1) the record affirmatively discloses counsel had no rational tactical purpose for the 

challenged act or omission, (2) counsel was asked for a reason and failed to provide one, 

or (3) there simply could be no satisfactory explanation. All other claims of ineffective 

assistance are more appropriately resolved in a habeas corpus proceeding. [Citations.]” 
13

(People v. Mai (2013) 57 Cal.4th 986, 1009, italics added.) Usually, “[a] claim of 

ineffective assistance [of counsel] . . . is more appropriately decided in a habeas corpus 

proceeding. [Citations.]” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

The prejudice prong requires a defendant to show that “there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” (Strickland, supra, 466 U.S. at p. 694.) “A reasonable 

probability is a probability sufficient to undermine confidence in the outcome.” (Ibid.) 

“It is not enough ‘to show that the errors had some conceivable effect on the outcome of 

the proceeding.’ [Citation.] Counsel’s errors must be ‘so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable.’ [Citation.]” (Harrington v. 

Richter (2011) 562 U.S. 86, 104 (Harrington).)

3. Analysis

a. Alleged Deficient Performance

The appellate record in this case sheds little light on defense counsel’s interactions 

with defendant outside the record, including counsel’s advice to defendant about 

testifying at trial at any given time or defendant’s own thinking on whether he should 

testify prior to ultimately telling the court that he had decided not to testify. Defense 

counsel’s opening statement must be evaluated deferentially, based on what he knew or 

reasonably should have known at the time. (See Strickland, supra, 466 U.S. at pp. 688 

[“defendant must show that counsel’s representation fell below an objective standard of 

reasonableness”], 689 [“Judicial scrutiny of counsel’s performance must be highly 

deferential.”], 690 [counsel’s acts or omissions must be considered “in light of all the 

circumstances”]; see In re Thomas (2006) 37 Cal.4th 1249, 1257 [“We consider counsel’s 

performance from his perspective, analyzing counsel’s decisions based on what he knew 

or should have known at the time. [Citations.]”].)

“Counsel was entitled to formulate a strategy that was reasonable at the time . . . .” 

(Harrington, supra, 562 U.S. at p. 107.) “A fair assessment of attorney performance 
14

requires that every effort be made to eliminate the distorting effects of hindsight, to 

reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the 

conduct from counsel’s perspective at the time.” (Strickland, supra, 466 U.S. at p. 689.) 

“[A] court must indulge a strong presumption that counsel’s conduct falls within the wide 

range of reasonable professional assistance.” (Ibid.)

“The reasonableness of counsel’s actions may be determined or substantially 

influenced by the defendant’s own statements or actions. Counsel’s actions are usually 

based, quite properly, on informed strategic choices made by the defendant and on 

information supplied by the defendant.” (Strickland, supra, 466 U.S. at p. 691.) For 

example, “[a] defendant in a criminal case has the right to testify in his or her own behalf. 

[Citations.] The defendant may exercise the right to testify over the objection of, and 

contrary to the advice of, defense counsel. [Citations.]” (People v. Bradford (1997) 15 

Cal.4th 1229, 1332; see Harris v. New York (1971) 401 U.S. 222, 225 [“Every criminal 

defendant is privileged to testify in his own defense, or to refuse to do so”].) A counsel’s 

“strategic choices made after thorough investigation of law and facts relevant to plausible 

options are virtually unchallengeable.” (Strickland, supra, 466 U.S. at p. 690.)

In People v. Frye (1998) 18 Cal.4th 894 (Frye), disapproved on another point in 

People v. Doolin (2009) 45 Cal.4th 390, 421, the defendant argued that his counsel was 

“ineffective for failing to deliver on two promises made to the jury during the opening 

statement.” (Frye, supra, at p. 983.) One of those promises was that “defendant would 

testify and wanted to take the witness stand to tell what he remembered.” (Ibid.) The 

other promise was that a neurologist and a psychologist would testify that “defendant 

suffered neurological and psychiatric impairments affecting his ability to recapture 

memory and process words.” (Ibid.)

On the record before it in Frye, the Supreme Court could not conclude that trial 

counsel had acted deficiently by ultimately “advising [the] defendant against taking the 

witness stand notwithstanding having told the jury in opening statement that defendant 
15

would testify.” (Frye, supra, 18 Cal.4th at p. 983.) The court found that “[i]n light of 

[the] defendant’s initial desire and willingness to testify, counsel’s statement was an 

appropriate exercise of his decisionmaking responsibilities at trial. (Cf. People v. Hines

(1997) 15 Cal.4th 997, 1032 [counsel not ineffective for informing jury during opening 

statement defendant would testify, given defendant’s indication to counsel of willingness 

to do so].)” (Id. at pp. 983-984.) The court determined that “counsel’s [subsequent] 

advice against testifying also fell within the realm of tactical considerations” because 

“[a]s the trial progressed,” “counsel observed [the] defendant’s increasing inability to 

remember.” (Id. at p. 984.)

In this case, defendant may have given an account to his counsel consistent with a 

claim of self-defense and expressed his willingness and desire to testify. The testimony 

adduced at trial and the trial court’s stance on giving a self-defense instruction may have 

reasonably altered defense counsel’s advice.

In People v. Burnett (2003) 110 Cal.App.4th 868 (Burnett), a case that came 

before this court, the defendant was convicted of felony animal cruelty. (Id. at p. 873.) 

After a “driver behind [the defendant] tapped his car with her bumper, [the defendant] 

snatched [the driver’s] little white dog . . . out of her car and threw him onto a crowded 

roadway where he was run over by a minivan and killed.” (Id. at p. 870.) On appeal, the 

defendant claimed, among other things, that “defense counsel was ineffective . . . for 

failing to call [the] defendant to testify after promising that he would in his opening 

statement.” (Id. at p. 883.)

In Burnett, this court recognized that “[m]aking promises about the defense 

evidence in opening statement and then failing to deliver does not constitute ineffective 

assistance per se.” (Burnett, supra, 110 Cal.App.4th at p. 885.) We described the 

circumstances in that case: “[The] [d]efendant apparently led defense counsel to believe 

that [a dog] bit him and his tooth snagged on [the] defendant’s finger. When all of the 

witnesses testified that this did not happen, including the only defense witness . . . whom 
16

defense counsel told the jury he expected to corroborate the testimony of defendant but 

who instead testified consistently with prosecution witnesses, defense counsel was 

compelled to change course.” (Id. at p. 884.) We reasoned that it was “not defense 

counsel’s fault that defendant lied to him” (ibid.) or that counsel “told the jury that he 

would present evidence which, apparently during the course of the trial, he discovered 

was a lie.” (Id. at pp. 884-885.) We concluded that “[c]ounsel’s advice ‘was an 

appropriate exercise of his decisionmaking responsibilities at trial.’ [Citation.]” (Id. at 

p. 885.)

As defendant notes, some federal courts have held that a defense counsel rendered

ineffective assistance by promising evidence in an opening statement and then failing to 

deliver at trial. (See, e.g., United States ex rel. Hampton v. Leibach (7th Cir. 2003) 347 

F.3d 219, 258; Ouber v. Guarino (1st Cir. 2002) 293 F.3d 19, 27.) But counsel does not 

invariably render ineffective assistance by making such a promise. Moreover, the results

reached in other cases do not dictate the outcome here. We assess whether a counsel’s 

conduct amounts to deficient performance on a case-by-case basis. (People v. Stanley

(2006) 39 Cal.4th 913, 955 (Stanley).) Further, “[t]he question is whether an attorney’s 

representation amounted to incompetence under ‘prevailing professional norms,’ not 

whether it deviated from best practices . . . . [Citation.]” (Harrington, supra, 562 U.S. at 

p. 105.)

Here, defendant claims that “reasonably competent counsel would not have 

promised his client’s testimony and then failed to present it.” Defendant acknowledges 

that “ ‘unexpected developments’ during a trial may justify changes in [a counsel’s] 

previously announced trial strategies.” But defendant asserts that in this case defense 

counsel “should have realized the folly of committing to [defendant’s testifying in] an 

opening statement” and “should have anticipated” that the prosecutor would emphasize 

any broken promise during closing argument. Defendant suggests that defense counsel’s 

promise of his testimony and the subsequent failure to present such testimony were not 
17

justified by some intervening “unforeseeable event.” He maintains that there was “no 

plausible tactical explanation” for defense counsel giving “an opening statement 

promising to present [defendant’s] version of the events before [counsel] had resolved . . . 

whether [defendant] was going to testify.” We are not persuaded by this reasoning, 

which we find faulty.

In this case, some trial testimony turned out to be favorable to defendant. There 

was evidence that D.M. had bumped into defendant and that D.M. had been told by the 

bouncer to distance himself from defendant. Nevertheless, D.M. had followed defendant 

out onto the bar’s balcony. D.M.’s own testimony had debunked the idea that after 

defendant and D.M. had been ejected from Number One Broadway, defendant had 

pursued and attacked D.M. with a hammer as D.M. walked to his car. Rather, D.M. 

admitted that it was he who had approached defendant, who had been merely standing in 

front of his truck. D.M. also acknowledged that after he approached defendant, a scuffle 

ensued. D.M. indicated at trial that his own force had caused them to fall into the truck 

and that he had ended up partially on top of defendant. D.M. ultimately conceded at trial 

that he was unsure who punched first. D.M. admitted that he had been drinking and that 

he had trouble remembering what happened the night of the incident. Officer Bazzar

described the blood evidence as beginning in the first parking stall in the alley behind 

Number One Broadway. D.M.’s car was parked to the north of the bar on South Santa 

Cruz Avenue. On the other hand, the eyewitness testimony of the bar’s bouncer seems to 

have likely eliminated any viable claim of self-defense to the pool stick incident.

The actual evidence adduced appears to have diminished the potential benefit of 

defendant taking the stand. (Cf. Pray v. Farwell (9th Cir. 2015) 620 Fed.Appx. 561, 

562-564.) In addition, the trial court stated that it was disinclined to give a self-defense 

instruction. Those were intervening events that may have affected defense counsel’s 

calculus concerning the potential value and downsides of defendant’s possible testimony 

and defendant’s willingness and desire to testify.
18

Defendant ultimately told the court that he had decided not to testify. As the 

People suggest, it is conceivable that defense counsel had a valid tactical reason for 

initially indicating in his opening statement that defendant would testify and for later 

advising him against testifying, assuming that was in fact what occurred. Although in 

closing argument defense counsel took the blame for indicating that defendant would 

testify, those remarks do not conclusively establish ineffective assistance of counsel. 

Defense counsel also strongly suggested in closing argument that the prosecution had not 

proved its case, which it made it unnecessary to call defendant. The court’s instructions 

and defense counsel’s closing argument made it clear to the jury that defendant had the 

absolute constitutional right not to testify.

A fatal flaw in defendant’s analysis is that he has not demonstrated deficient 

performance on direct appeal by establishing that (1) the record affirmatively discloses 

that his counsel had no rational tactical reasons for telling the jury that defendant would 

testify at trial but then not presenting his testimony; (2) defense counsel was asked for an 

explanation of his conduct but gave no reason; or (3) under the circumstances of this 

case, there simply could have been no satisfactory explanation for counsel’s conduct. 

“[C]ertain practical constraints make it more difficult to address ineffective assistance 

claims on direct appeal rather than in the context of a habeas corpus proceeding. 

[Citations.] The record on appeal may not explain why counsel chose to act as he or she 

did. Under those circumstances, a reviewing court has no basis on which to determine 

whether counsel had a legitimate reason for making a particular decision, or whether 

counsel’s actions or failure to take certain actions were objectively unreasonable.

[Citation.]” (People v. Mickel (2016) 2 Cal.5th 181, 198.) “Rarely is ineffective 

assistance of counsel established on appeal since the record usually sheds no light on 

counsel’s reasons for action or inaction. [Citation.]” (People v. Woodruff (2018) 5 

Cal.5th 697, 736.) This is not one of those rare instances where deficient performance is 

established by the record on appeal.
19

b. Inadequate Showing of Prejudice

Defendant argues that his counsel’s deficient performance was prejudicial because 

“[w]hen [his] second version [of what happened] never materialized, the jury inevitably 

concluded that, in fact, there was no alternate version of the events that took place, and 

that [D.M.’s] version was essentially correct.” “As with all applications of the Strickland

test, the question whether a given defendant has made the requisite showing [of 

prejudice] will turn on the facts of a particular case. [Citation.]” (Roe v. Flores-Ortega

(2000) 528 U.S. 470, 485.)

“In assessing prejudice under Strickland, the question is not whether a court can be 

certain counsel’s performance had no effect on the outcome or whether it is possible a 

reasonable doubt might have been established if counsel acted differently. [Citations.] 

Instead, Strickland asks whether it is ‘reasonably likely’ the result would have been 

different. [Citation.] This does not require a showing that counsel’s actions ‘more likely 

than not altered the outcome,’ but the difference between Strickland’s prejudice standard 

and a more-probable-than-not standard is slight and matters ‘only in the rarest case.’ 

[Citation.] The likelihood of a different result must be substantial, not just conceivable. 

[Citation.]” (Harrington, supra, 562 U.S. 86, 111-112.)

In Stanley, the California Supreme Court stated: “Whether the failure to produce a 

promised witness amounts to ineffective assistance of counsel is a fact-based 

determination that must be assessed on a case-by-case basis. [Citation.] Forgoing the 

presentation of testimony or evidence promised in an opening statement can be a 

reasonable tactical decision, depending on the circumstances of the case. [Citations.]” 

(Stanley, supra, 39 Cal.4th at p. 955.) In Stanley, a jury convicted the defendant of first 

degree murder, attempted murder, and six robberies, and it found true a robbery-murder 

special circumstance and allegations of personal use of a deadly weapon (knife). (Id. at 

p. 919.) The defendant “fault[ed] his counsel for failing to follow through on a 

representation made in his opening statement to present the testimony of an Oakland 
20

police officer regarding the robbery of another cab driver that allegedly was committed in 

[the] defendant’s neighborhood, by someone matching his description, while he was in 

custody.” (Id. at pp. 954-955.)

The Supreme Court concluded in Stanley: “On this record, even were we to 

conclude counsel’s failure to present the witness and testimony described in his opening 

statement had no tactical justification and fell below the normal range of competency, we 

would find such error nonprejudicial. [Citation.] There is no reason to assume the jury 

necessarily concluded counsel was unable to produce the witness, or that the failure to 

produce the witness meant defendant was the only possible suspect in the robberies . . . , 

or that the jury indeed based its guilty verdicts on the failure of the defense to produce the 

witness, contrary to the instructions they were sworn to follow.” (Stanley, supra, 39 

Cal.4th at p. 955.) Similarly, in this case, defendant has not demonstrated that prejudice 

resulted from his defense counsel’s opening statement.

At the beginning of the trial, the trial court gave the jury some initial instructions. 

The court told the jury, among other things, that “[y]our verdict must be based only on 

the evidence presented during trial in this court and the law as I provide it to you.” 

It instructed in part: “A defendant in a criminal case is presumed to be innocent. This 

presumption requires that the People prove a defendant guilty beyond a reasonable 

doubt. . . . [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding 

conviction that the charge is true. . . . In deciding whether the People have proved their 

case beyond a reasonable doubt, you must impartially compare and consider all of the 

evidence that was received throughout the entire trial. Unless the evidence proves the 

defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must 

find him not guilty.” The court told the jury: “You must decide what the facts are in this 

case. You must use only the evidence presented in this courtroom. Evidence is the 

sworn testimony of witnesses, the exhibits admitted into evidence, an[d] anything else 

I tell you to consider as evidence.” The court stated: “Nothing that the attorneys say is 
21

evidence. In their opening statements and closing arguments the attorneys will discuss 

the case, but their remarks are not evidence.”

The trial court’s final jury instructions reiterated: “In deciding whether the People 

have proved their case beyond a reasonable doubt, you must impartially compare and 

consider all the evidence that was received throughout the entire trial. Unless the 

evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an 

acquittal and you must find him not guilty. [¶] Evidence is the sworn testimony of 

witnesses, the exhibits admitted into evidence, and anything else I told you to consider as 

evidence. Nothing that the attorneys say is evidence. In their opening statements and 

closing arguments, the attorneys discussed the case, but their remarks are not evidence.”

In addition, the trial court instructed: “A defendant has an absolute constitutional 

right not to testify. He or she may rely on the state of the evidence and argue that the 

People have failed to prove the charges beyond a reasonable doubt. Do not consider for 

any reason at all, the fact that the defendant did not testify. Do not discuss that fact 

during your deliberations or let it influence your decision in any way.”

As indicated above, in closing argument, defense counsel admitted that he had 

made a blunder during his opening statement by indicating defendant would testify. 

However, defense counsel also reminded the jury that his statements were not evidence. 

Counsel stressed that defendant had “an absolute constitutional right not to testify.” The 

prosecutor also told the jury that defendant had a right not to testify and that it should not 

consider the fact he did not testify “one way or another.”

Under the circumstances, defendant has not demonstrated prejudice. The jury was 

repeatedly told that counsel’s remarks were not evidence, defendant had a constitutional 

right not to testify, and the fact that defendant did not testify could not be considered by 

jury. There is nothing in the record to suggest that defense counsel’s opening statement 

influenced the jury’s evaluation of the credibility of any witnesses, including the bouncer 

who was an eyewitness to defendant striking D.M. with a pool stick. Defendant has not 
22

shown that it is reasonably probable that, but for defense counsel’s opening statement

promise that defendant would testify, “the result of the proceeding would have been 

different.” (Strickland, supra, 466 U.S. at p. 694.)

B. Section 654’s Proscription against Multiple Punishment

Defendant argues that the trial court violated section 654 by imposing and not 

staying a sentence on count 2 because he was convicted of both counts 1 and 2 “for 

committing the same physical act of striking [D.M.] once with a pool stick and breaking 

his arm.” Defendant explains that “[a]lthough there was evidence introduced during trial 

of a separate incident of violence, [which] involve[ed] a hammer [and] occurred after the 

pool stick incident, the prosecution opted not to prosecute this second act.”2 Defendant 

asserts that since he was not prosecuted for the subsequent incident of violence outside 

the bar, the sentence imposed on count 2 must be stayed.

2 The record reflects that in closing argument, the prosecutor asserted that 

defendant was guilty of the charged offenses because defendant struck D.M.’s arm with a 

pool stick, which broke his arm. The prosecutor described whatever happened 

subsequently, outside the bar, as a “mutual fight.” He referred to a “second encounter” in 

which “defendant was hitting the victim over the head with a hammer or some type of 

metal object.” The prosecutor told the jury, “We’ve made this easier for you. You don’t 

have to decide what happened out there. . . . And you don’t have to make any decisions 

about what happened outside. . . . This case is about the defendant hitting the victim with 

the pool stick.” In closing argument, defense counsel told the jury: “[I]t’s much more 

likely that the hammer broke [D.M.’s] arm than the pool stick. And [defendant’s] not 

charged with that because of the brilliant strategy of the district attorney.” “The injuries 

in the photo [of D.M.] are completely unrelated to the charge because the fight is not 

charged.” He argued: “If the charge was assault with a pool stick and not a hammer, you 

can’t convict. You don’t have the pool stick. You don’t know the pool stick injured 

him. . . . Reasonable doubt, folks. Clear-cut, unquestionable, reasonable doubt. Why is 

there no charge based on the hammer? Why is there no charge based on these photos?” 

In rebuttal, the prosecutor repeated that during the fight that followed the pool stick 

incident, defendant repeatedly hit D.M. in the head with a hammer. The prosecutor said 

that unlike the pool stick incident, there was no independent witness to the hammer 

incident. He indicated that the jurors “shouldn’t think about” why defendant was not 

charged for the hammer incident.
23

On appeal, the People agree that section 654 requires a stay of the sentence for 

battery with infliction of serious bodily injury (count 2) “[b]ecause the assault and battery 

were based on the same blow to [D.M.].”

a. Section 654

Under section 654, subdivision (a), “[a]n act or omission that is punishable in 

different ways by different provisions of law shall be punished under the provision that 

provides for the longest potential term of imprisonment, but in no case shall the act or 

omission be punished under more than one provision.” “ ‘It is well settled that 

section 654 protects against multiple punishment, not multiple conviction. [Citation.]’ 

[Citation.]” (People v. Correa (2012) 54 Cal.4th 331, 336, fn. omitted.) “[T]he accepted 

‘procedure is to sentence defendant for each count and stay execution of sentence on 

certain of the convictions to which section 654 is applicable.’ [Citations.]” (People v. 

Jones (2012) 54 Cal.4th 350, 353.) Thus, “[w]hen section 954 permits multiple 

conviction, but section 654 prohibits multiple punishment, the trial court must stay 

execution of sentence on the convictions for which multiple punishment is prohibited. 

[Citations.]” (People v. Reed (2006) 38 Cal.4th 1224, 1227.)

“Whether a defendant may be subjected to multiple punishment under section 654 

requires a two-step inquiry, because the statutory reference to an ‘act or omission’ may 

include not only a discrete physical act but also a course of conduct encompassing several 

acts pursued with a single objective. [Citations.] We first consider if the different crimes 

were completed by a ‘single physical act.’ [Citation.] If so, the defendant may not be 

punished more than once for that act. Only if we conclude that the case involves more 

than a single act—i.e., a course of conduct—do we then consider whether that course of 

conduct reflects a single ‘ “intent and objective” ’ or multiple intents and objectives. 

[Citations.]” (People v. Corpening (2016) 2 Cal.5th 307, 311-312.)
24

b. Threshold Problem: No Sentence was Pronounced

Both parties appear to believe that the trial court pronounced judgment in this 

case. But neither has, by specific citation to the record, directed us to any oral 

pronouncement of separate terms on each count of which defendant was found guilty or 

on any associated enhancement allegation that was found true by the jury, which terms 

add up to an aggregate eight-year sentence.

According to defendant, the court suspended execution of a total eight-year state 

prison sentence and placed him on probation for a term of three years. He acknowledges 

that the trial court did not state on the record how it calculated the aggregate eight-year 

sentence and refers us to the probation report’s sentencing recommendations. Defendant 

accurately recounts that the trial court then ordered him to serve as a condition of 

probation, two years in county jail, consisting of one year on count 1 and a consecutive 

year on count 2. (See § 19.2 [“In no case shall any person sentenced to confinement in a 

county . . . jail . . . as a condition of probation upon conviction of either a felony or a 

misdemeanor . . . be committed for a period in excess of one year . . . .”]; People v. 

Jeffrey (2004) 33 Cal.4th 312, 317 [recognizing that section 19.2 imposes a “one-year cap 

on the time that can be served in county jail as a condition of probation for any single 

violation”].)

The People claim that the trial court followed the probation officer’s 

recommendations and imposed an eight-year aggregate prison sentence. They suggest

that the total eight-year sentence consisted of (1) a three-year midterm for the conviction 

of assault with a deadly weapon (count 1); (2) a consecutive three-year enhancement term 

for personal infliction of great bodily injury as to count 1; (3) a consecutive one-year 

term for the conviction of battery with infliction of serious bodily injury (count 2); and

(4) a consecutive one-year enhancement term for personal infliction of great bodily injury 

as to count 2. That may well have been what the trial court intended to do, but it did not 

actually pronounce those terms.
25

“In a criminal case, judgment is rendered when the trial court orally pronounces 

sentence. (§§ 1191 and 1202; People v. Mesa (1975) 14 Cal.3d 466, 471; People v. 

Thomas (1959) 52 Cal.2d 521, 529, fn. 3; 6 Witkin & Epstein, Cal. Criminal Law [(2d ed. 

1989) Judgment and Attack in Trial Court], § 3101, p. 3825.)” (People v. Karaman

(1992) 4 Cal.4th 335, 344, fn. 9.) It is a trial court’s duty to pronounce judgment on each

count of which a defendant is convicted. (People v. Morrow (1969) 275 Cal.App.2d 507, 

516; see § 12 [“The several sections of this [Penal Code] which declare certain crimes to 

be punishable as therein mentioned, devolve a duty upon the court authorized to pass 

sentence, to determine and impose the punishment prescribed”].)

“The trial court is generally required to include all aspects of a judgment in its oral 

pronouncement of judgment. (See People v. Mesa (1975) 14 Cal.3d 466, 471.) Any 

discrepancy between the judgment as orally pronounced and as recorded in the clerk’s 

minutes or abstract of judgment is presumed to be the result of clerical error. (Ibid.) The 

abstract of judgment [or minute order] ‘does not control if different from the trial court’s 

oral judgment and may not add to or modify the judgment it purports to digest or 

summarize.’ (People v. Mitchell (2001) 26 Cal.4th 181, 185.)” (People v. Leon (2020) 

8 Cal.5th 831, 855.)

“When a judgment of imprisonment is to be imposed and the statute specifies 

three possible terms, the choice of the appropriate term shall rest within the sound 

discretion of the court.” (§ 1170, subd. (b).) The court must “set forth on the record the 

reasons for imposing the term selected.” (Ibid.) In contrast, no term of imprisonment is 

specified if imposition of sentence is suspended. (Ibid.)

Section 1170.1, subdivision (a), states: “Except as otherwise provided by law, and 

subject to [s]ection 654, when any person is convicted of two or more felonies . . . and a 

consecutive term of imprisonment is imposed under [s]ections 669 and 1170, the 

aggregate term of imprisonment for all these convictions shall be the sum of the principal 

term, the subordinate term, and any additional term imposed for applicable enhancements 
26

for prior convictions, prior prison terms, and [s]ection 12022.1. The principal term shall 

consist of the greatest term of imprisonment imposed by the court for any of the crimes, 

including any term imposed for applicable specific enhancements. The subordinate term 

for each consecutive offense shall consist of one-third of the middle term of 

imprisonment prescribed for each other felony conviction for which a consecutive term of 

imprisonment is imposed, and shall include one-third of the term imposed for any 

specific enhancements applicable to those subordinate offenses.” (See § 1170.11.)

California Rules of Court, rule 4.433(c) states: “If a sentence of imprisonment is 

to be imposed, or if the execution of a sentence of imprisonment is to be suspended 

during a period of probation, the sentencing judge must: [¶] (1) Determine, under 

section 1170(b), whether to impose one of the three authorized terms of imprisonment 

referred to in section 1170(b), or any enhancement, and state on the record the reasons for 

imposing that term; [¶] (2) Determine whether any additional term of imprisonment 

provided for an enhancement charged and found will be stricken; [¶] (3) Determine 

whether the sentences will be consecutive or concurrent if the defendant has been 

convicted of multiple crimes; [¶] (4) Determine any issues raised by statutory 

prohibitions on the dual use of facts and statutory limitations on enhancements . . . ; 

and [¶] (5) Pronounce the court’s judgment and sentence, stating the terms thereof and 

giving reasons for those matters for which reasons are required by law.”

Here, the trial court did not orally pronounce the constituent terms of an aggregate 

eight-year sentence. Further, in granting probation, the court inconsistently indicated that 

it was suspending an eight-year state prison sentence and that it was suspending 

imposition of sentence. Even if we could retroactively reconstruct the intended sentence, 

it is the trial court that must orally pronounce it.

We will remand the matter to the trial court to clarify whether it had intended to 

orally pronounce sentence and suspend its execution and, if that was its intent, to do so. 
27

If the trial court pronounces sentence upon remand, it may in the first instance resolve 

any section 654 claim that is raised.

C. Allegation that Infliction of Great Bodily Injury is Element of Count 2 Offense

In this case the jury impliedly found that D.M.’s forearm fracture was both a 

“serious bodily injury” within the meaning of section 243(d) (count 2) and a “great bodily 

injury” within the meaning of section 12022.7(a). Defendant argues that a statutory 

limitation—section 12022.7, subdivision (g) (12022.7(g))—precluded an enhancement 

under section 12022.7(a) and that therefore the section 12022.7(a) enhancement attached 

to count 2 must be stricken. Under section 12022.7(g), section 12022.7(a) does not 

“apply if infliction of great bodily injury is an element of the offense.” The People 

concede error.

As the trial court did not orally impose that enhancement, there is nothing to 

strike, even if we assume for the sake of argument that defendant’s contention is correct. 

If the trial court pronounces judgment upon remand, it should address whether a 

section 12022.7(a) enhancement may be applied to a conviction of battery with infliction 

of serious bodily injury (§ 243(d)). (See 12022.7(g).)

DISPOSITION

The January 19, 2016 order is reversed. The matter is remanded to the trial court 

with directions to (1) clarify whether its intent was to pronounce sentence and suspend its 

execution or to suspend imposition of sentence and (2) orally pronounce sentence and 

suspend its execution, if that was the court’s intent.
_________________________________

ELIA, J.

WE CONCUR:

_______________________________

GREENWOOD, P.J.

_______________________________

PREMO, J.

People v. Rush

H045678