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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

v.

STEVEN ANDREW DORSEY,

Defendant and Appellant.

E073648

(Super.Ct.Nos. INF1801983, 

 INM1901110 & INM901845)

OPINION

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 

participate in anger management counseling.

On appeal, Dorsey argues a change in the law requires us to strike the three prior 

prison offense enhancements. He further argues the court acted in excess of its 

jurisdiction by ordering him to participate in anger management counseling. The People 

agree the prior prison offense enhancements must be stricken, but argue the trial court 

merely suggested, rather than ordered, Dorsey to participate in counseling. We agree with 

the parties that the prison prior enhancements are no longer authorized. We also agree 

with Dorsey the trial court was not authorized to recommend anger management 

counseling. We therefore reverse Dorsey’s sentence and remand for resentencing as 

directed.

I

FACTS

Jane Doe and Dorsey dated for approximately 10 years and were living together in 

October 2018. On October 8, 2018, Doe went in person to a police department to report 

Dorsey for repeatedly abusing her, most recently just a few days earlier. When she

reported the abuse, she exhibited bruises, bumps, and skin redness. On October 25, 2018, 
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the court issued a criminal protective order prohibiting Dorsey from contacting Doe. On 

November 6, 2018, Dorsey called Doe while he was in custody and left her a voicemail.

On November 9, 2018, Doe received a handwritten letter in the mail from Dorsey.

On June 12, 2019, a jury convicted Dorsey of willfully inflicting corporal injury 

resulting in a traumatic condition upon a cohabitant. (Pen. Code, § 273.5, subd. (a), 

unlabeled statutory citations refer to this code) and two misdemeanor counts of violating 

a protective order (§ 166, subd. (c)(1)). The jury also found Dorsey had a prior conviction 

for a domestic violence crime within seven years of his new conviction. Dorsey admitted 

to having a prior strike conviction and three prior prison offenses.

The court sentenced Dorsey to the upper term of five years for the domestic 

violence conviction, doubled because of the prior strike conviction. It also imposed three 

one-year prior prison offense enhancements. Finally, it imposed two concurrent 364-day 

terms for each of the misdemeanor protective order violations, for a total aggregate 

term of 13 years. The court also considered a recommendation from the Riverside County 

Probation Department (Probation) that Dorsey “participate in a counseling or educational 

program having a substance abuse component.” However, the court concluded “the better

program here would be to participate in a[n] . . . antiviolence program . . . . [¶] So I’m 

going to strike that counseling or education, and I’m going to change it from program 

having a substance abuse component to program having an anger management program.” 

The court edited the report from the probation officer by hand to strike the words 
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“substance abuse” and add “anger management,” to the relevant recommendation. This 

was replicated in the sentencing minute order and abstract of judgment.

Dorsey timely appealed from the judgment.

II

ANALYSIS

Dorsey argues he is entitled to retroactive application of Senate Bill No. 136’s 

abolition of most prior prison offence enhancements, and all three of his one-year prior 

prison term enhancements must be stricken. He also argues the trial court’s order to 

participate in anger management counseling was unauthorized. The People agree 

Dorsey’s prior prison offense enhancements must be stricken but argue the trial court’s 

reference to anger management counseling was a suggestion rather than an order, and 

therefore permitted.

A. Prior Prison Offense Enhancements 

In October 2019, the Legislature enacted Senate Bill No. 136, which amended 

Penal Code section 667.5, subdivision (b). (2019-2020 Reg. Sess.) “Prior to this 

amendment, the statute provided for a one-year enhancement for each prior separate 

prison term, unless the defendant remained free from both prison custody and the 

commission of a new felony for a five-year period after discharge. [Citations.] After the 

amendment, ‘a one-year prior prison term enhancement will only apply if a defendant 

served a prior prison term for a sexually violent offense as defined in Welfare and 

Institutions Code section 6600, subdivision (b).’ ” (People v. Gastelum (2020) 45 
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Cal.App.5th 757, 772; People v. Lopez (2019) 42 Cal.App.5th 337, 340-341 (Lopez).) 

The amended statute became effective January 1, 2020. (Lopez, at p. 341; see Cal. Const., 

art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a).) It is undisputed Dorsey had no prior 

convictions for a sexually violent offense, so the trial court can no longer impose a oneyear enhancement for his three prior prison terms.

Dorsey’s conviction was not final as of the effective date of this change. (See 

People v. Vieira (2005) 35 Cal.4th 264, 306 [“ ‘[F]or the purpose of determining 

retroactive application of an amendment to a criminal statute, a judgment is not final until 

the time for petitioning for a writ of certiorari in the United States Supreme Court has 

passed.’ ”].) Because Dorsey’s conviction is not yet final, and because the amended 

statute leads to a reduced sentence, the amendment to section 667.5, subdivision (b),

applies retroactively. (People v. Jennings (2019) 42 Cal.App.5th 664, 681-682; Lopez, 

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.