Filed 1/7/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

ERNEST JIM CHOI,

Defendant and Appellant.

 B301093

 (Los Angeles County

 Super. Ct. No. BA465222)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Leslie A. Swain, Judge. Affirmed in part and 

remanded with directions.

Alex Coolman, under appointment by the Court of Appeal, 

for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Noah P. Hill and Thomas C. Hsieh, 

Deputy Attorneys General, for Plaintiff and Respondent.

__________________________
2

After representing himself at trial, Ernest Choi was 

convicted of three counts of stalking (Pen. Code, § 646.9, subd. 

(a))1 and two counts of criminal threats (§ 422). He was 

sentenced to seven years, which included two one-year prior 

prison enhancements pursuant to section 667.5, subdivision (b). 

He appeals the judgment, arguing (1) the evidence was 

insufficient to sustain the criminal threats counts; (2) the trial 

court abused its discretion and denied his right to present a 

defense by excluding a defense witness; and (3) the court abused 

its discretion by applying a blanket practice of denying requests 

for advisory counsel because, in the court’s words, “That’s not the 

way it’s done in this courthouse.” 

We find sufficient evidence underlies the criminal threats 

counts, the trial court properly excluded one witness, and that, 

despite the court’s initial statement, the record reflects it did 

exercise its discretion to deny Choi’s request for advisory counsel 

based upon the characteristics of this defendant and this case. 

We remand for the trial court to strike Choi’s two one-year 

enhancements pursuant to Senate Bill No. 136 (SB 136) and 

resentence him. We will also order a correction to the criminal 

conviction assessment in the abstract of judgment. In all other 

respects, we affirm.

BACKGROUND

Prosecution Case

In 2017, Choi was a paralegal student at Los Angeles City 

College (LACC). Victims Kareem Williams and Leslie Castillo, as 

well as Carolyn Delgado, were also students in the program. 

The four formed a study group and socialized outside of class. 

1 Undesignated statutory citations refer to the Penal Code.
3

They frequently texted and emailed each other in group 

messages. In the fall of 2017, victim Andrianna Martirosyan 

joined the paralegal program and became friends with Choi and 

the others. She worked as a legal assistant in the Los Angeles 

County District Attorney’s Office. 

While they were friends, Williams went to Choi’s 

apartment several times. During one visit, Choi mentioned there 

were military guns in his brother’s bedroom, although Williams 

never saw them.2 Choi’s brother did indeed own several 

firearms, including an AR-15, but he did not keep them in the 

apartment. He told Choi about them. 

A month or two before final exams scheduled for December 

16, 2017, Choi missed class for two weeks. When he returned, his 

behavior changed. He mentioned his criminal history and tried 

to show his study group documents related to his criminal record. 

He told Martirosyan to stay away from Williams, Delgado, and 

Castillo because they were “not good people.” According to 

Delgado, in November 2017, Choi’s behavior became erratic: he 

started missing classes and would “say like gibberish stuff” in 

phone calls and in text messages. 

In the days leading up to final exams, Choi sent several 

strange texts to Castillo. A December 12 text said, “For you 

maybe I got 99, but you ain’t one.” Castillo understood this to 

refer to a song with the lyric “having 99 problems . . . ‘but a bitch 

2 Williams admitted at trial that he incorrectly told a 

detective he saw guns in Choi’s apartment. Williams explained

he was “frazzled” and “loopy” during that interview due to Choi’s 

later actions, as we will describe them. Williams said he was 

losing sleep and watching his door to ensure Choi “wasn’t 

coming.”
4

ain’t one.’ ” Choi said in a text on December 14, “But things 

change and now you’re a hundredth.” Castillo texted him that 

she didn’t need distractions, and he responded, “Okay, nigger.”3 

She responded that he needed to relax and he was “beginning to 

scare” her. Choi later texted her, “Hey Les, for the record, I’ll 

break you like Jason Derulo. Play with me at your own risk,” 

with the word “you” in all capital letters, “and read it out loud 

loudly.” To Castillo, this felt like a threat. She responded, “Are 

you threatening me? Because this is not a joke.” She also texted 

him, “How about you just leave me alone like I asked you to?” 

According to Williams, Choi did not sit with him in class on 

December 13 and bobbed his head up and down. Two days later 

on December 15, Choi called Williams mumbling, giggling, and 

speaking rapidly. Williams thought Choi was “on some sort of 

substance.” 

Also on December 15, Martirosyan woke up from a nap to 

find three missed calls and a voicemail from Choi. On the 

voicemail, Choi said her full name very slowly in a “creepy 

different tone.” Martirosyan called him back. On the call, he was 

mumbling, slurring, and screaming at her; he “couldn’t put a 

sentence together.” She thought he was stressed about finals and 

might harm himself. During the call, he said he knew she

worked for the District Attorney’s Office and she knew his 

history, which she thought was an accusation that she looked up 

his criminal background. He told her she “looked good.” He also 

said, “I’m a naughty boy. I’m evil,” and repeated four or five 

times, “I don’t want to snap. I don’t want to cause harm to 

3 Although Castillo is Hispanic, she interpreted Choi’s text 

as an insult. 
5

anyone.” Martirosyan was scared. She interpreted his comments 

to mean LACC was in danger, given they had final exams the 

next day. She called the LACC campus Sheriff’s department and 

contacted LACC professor Wilhelm Vargas to alert them to her 

safety concerns about Choi. 

Final exams were held on December 16. Around 8:30 a.m., 

Martirosyan told Williams about the prior day’s phone call from 

Choi. She was scared. Williams revealed he had received a 

similar call and was also scared. That morning, Professor Vargas 

saw an email from Martirosyan alerting him to her safety 

concerns, so he met with Williams, Martirosyan, and another 

student. He called Choi and told him not to come to school that 

day. 

Distressed, Choi called Delgado as she was driving to 

LACC to take final exams. He told her Professor Vargas told him 

not to come for final exams that day. He thought Delgado had 

“snitched” on him and told Professor Vargas his behavior was 

unacceptable. He said, “I need to end. I need to end Kareem and 

Leslie,” referring to Williams and Castillo. Then he repeated the 

word “end” three times. Scared, she asked what he meant, and 

he said, “I didn’t mean it that way.” Still, Delgado interpreted it 

as a threat. Choi did not tell her to relay his comments to 

Williams or Castillo. 

Nonetheless, Delgado called Castillo and told her about her 

conversation with Choi. Delgado said he seemed crazy and said 

he was going to “end” her and Williams. Castillo was scared and 

interpreted the comment as a threat. At school, Castillo and 

Delgado told Professor Vargas about Choi’s “very weird call” and 

said they were afraid. 
6

Around 9:30 a.m., Choi called Williams to say he wasn’t 

coming to school, and he asked Williams to give two Scantron 

forms to another student, Patrick Seaton. Choi then sent a text 

to Castillo and Delgado saying he had been instructed not to 

come to class. Choi later texted Castillo saying that Williams 

and Martirosyan said something about him and he would be 

expelled. 

After finishing the first final exam that day, Delgado told 

Williams about Choi’s comment on the call with her that he 

would “end” Williams. Williams was scared and “freaked out,” 

believing Choi would “shoot up the school” because Choi had 

previously mentioned his brother had guns and Choi had some 

sort of special military training. Martirosyan overheard this 

conversation. Williams had previously told Castillo he had seen 

guns in Choi’s apartment, so Castillo believed Choi could carry 

out his threats. 

At 1:27 p.m. on exam day, Choi texted Williams, “Just 

know we can fade this at my place,” which Williams interpreted 

as a challenge to a fist fight. 

Also at some point that day, a text from Choi was 

forwarded to Martirosyan stating: “Now you’re responsible for 

Andrianna [Martirosyan] because you took my prison 

prior . . . info told in confidence, to look me up at the D.A. office, 

why? She doesn’t have the authority to be looking into my data. 

Only official police business . . . . That’s grounds for 

termination . . . . Not fired. Terminated.” Martirosyan was 

worried Choi would kill her. 

Choi never showed up for exams at LACC on December 16. 

Choi’s erratic behavior continued. On December 17, he 

texted Williams the word “Exterm87.” Williams believed it 
7

meant “Exterminate 187,” a reference to the criminal law final 

exam they took a few days earlier involving Penal Code section 

187, the statute prohibiting murder. Castillo received a similar 

text saying “Exterminate” and “T87,” which she interpreted as a 

threat. 

On January 10, 2018, Choi sent Martirosyan text messages 

with photographs of an axe and stated, “FYI: from now on no 

more bullshit. You want respect, give first. That’s a principle” 

and “Seethe if I’m joking.” A friend forwarded images of the axe 

to Castillo. 

A search of Choi’s apartment did not uncover any guns, but 

law enforcement found the axe depicted in Choi’s photographs. 

A forensic search of Choi’s phone revealed an internet search for 

“confirm kill count” on December 15, 2017, the day before final 

exams. 

Evidence was introduced that Choi pled no contest to 

stalking another person, Christine Yoon, in 2015. Yoon testified 

to the circumstances surrounding Choi’s similar conduct at that 

time. In January 2018, Choi sent Yoon strange text messages, 

including a photograph of an axe. 

Defense Evidence

A deputy testified he received a complaint about a possible 

shooter on the LACC campus, so he stood outside the classroom 

to ensure Choi did not show up. 

Choi was suspended from LACC on December 20, 2017 due 

to his behavior. He was on probation at the time of the incidents 

in this case, and he was prohibited from accessing firearms. 

During the proceedings in Choi’s 2015 stalking case, his 

mother shook Yoon’s hand in the courthouse. On the day Choi 
8

pled no contest, Yoon called Choi’s mother and said, “Miss Choi, 

I’m so sorry.” 

The trial court precluded Choi from calling Patrick Seaton 

as a defense witness, but the parties stipulated that he would 

testify Choi was in a study group with Seaton and another 

student, in addition to his group with Delgado, Castillo, and 

Williams. The parties also stipulated that Martirosyan accessed 

Choi’s prior stalking case in 2015 in the regular course of her 

duties at the District Attorney’s Office. 

DISCUSSION

I. Sufficient Evidence Supported Choi’s Criminal

Threats Convictions

Williams and Castillo were named as victims in the two 

criminal threats counts. The prosecution based the counts on 

Choi’s statement in his December 16 phone call to Delgado, 

“I need to end Kareem and Leslie,” i.e., Williams and Castillo. 

Choi contends insufficient evidence demonstrated his comment 

was a criminal threat in violation of section 422. We disagree.

Because Choi has not raised any free speech arguments, 

we review his contention for substantial evidence. (People v. 

Wilson (2010) 186 Cal.App.4th 789, 804 (Wilson).) “ ‘In assessing 

the sufficiency of the evidence, we review the entire record in the 

light most favorable to the judgment to determine whether it 

discloses evidence that is reasonable, credible, and of solid value 

such that a reasonable trier of fact could find the defendant 

guilty beyond a reasonable doubt. [Citations.] Reversal on this 

ground is unwarranted unless it appears “that upon no 

hypothesis whatever is there sufficient substantial evidence to 

support [the conviction].” [Citation.]’ ” (Id. at p. 805.)
9

To show a criminal threat pursuant to section 422, the 

prosecution must prove “ ‘(1) that the defendant “willfully 

threaten[ed] to commit a crime which will result in death or great 

bodily injury to another person,” (2) that the defendant made the 

threat “with the specific intent that the statement . . . is to be 

taken as a threat, even if there is no intent of actually carrying it 

out,” (3) that the threat—which may be “made verbally, in 

writing, or by means of an electronic communication device”—

was “on its face and under the circumstances in which it [was] 

made, . . . so unequivocal, unconditional, immediate, and specific 

as to convey to the person threatened, a gravity of purpose and 

an immediate prospect of execution of the threat,” (4) that the 

threat actually caused the person threatened “to be in sustained 

fear for his or her own safety or for his or her immediate family’s 

safety,” and (5) that the threatened person’s fear was 

“reasonabl[e]” under the circumstances.’ ” (In re George T. (2004) 

33 Cal.4th 620, 630.)4

4 Section 422 provides in relevant part: “Any person who 

willfully threatens to commit a crime which will result in death 

or great bodily injury to another person, with the specific intent 

that the statement, made verbally, in writing, or by means of an 

electronic communication device, is to be taken as a threat, even 

if there is no intent of actually carrying it out, which, on its face 

and under the circumstances in which it is made, is so 

unequivocal, unconditional, immediate, and specific as to convey 

to the person threatened, a gravity of purpose and an immediate 

prospect of execution of the threat, and thereby causes that 

person reasonably to be in sustained fear for his or her own 

safety or for his or her immediate family’s safety, shall be 

punished by imprisonment in the county jail not to exceed one 

year, or by imprisonment in the state prison.” (§ 422, subd. (a).)
10

Choi contends his comment, “I need to end Kareem and 

Leslie,” was too “facially ambiguous” to constitute a criminal 

threat. Not so. True, when Delgado questioned him about what 

he meant, he told her, “I didn’t mean it that way.” But the jury 

could have rejected his apparent equivocation and found his 

comment was an unambiguous threat to harm Williams and 

Castillo. “ ‘[T]he nature of the threat cannot be determined only 

at face value. Section 422 demands that the purported threat be 

examined “on its face and under the circumstances in which it 

was made.” The surrounding circumstances must be examined to 

determine if the threat is real and genuine, a true threat,’ and 

such threats must be ‘judged in their context.’ ” (Wilson, supra, 

186 Cal.App.4th at p. 807.) Thus, “[a] communication that is 

ambiguous on its face may nonetheless be found to be a criminal 

threat if the surrounding circumstances clarify the 

communication’s meaning.” (In re George T., supra, 33 Cal.4th at 

p. 635.)

First and perhaps most important, the three members of 

Choi’s close-knit study group didn’t think Choi’s comment was 

ambiguous. They saw it as a threat. Delgado, who spoke directly 

with Choi, thought his statement was a threat to Castillo and 

Williams, despite Choi’s comment that he “didn’t mean it that 

way.” She was concerned enough to call Castillo right away. 

Castillo became scared and believed the comment was a threat. 

When Williams heard about Choi’s comment, he “freaked out,” 

believing Choi would “shoot up the school” because Choi had 

previously mentioned his brother had guns and Choi had some 

sort of special military training. 

Second, Choi’s threat fell into a pattern of threats and 

disturbing comments before and after his phone call with 
11

Delgado. Two days before the call, he sent a series of texts to 

Castillo saying she essentially became his “hundredth” problem; 

he called her the n-word; and he said he would “break” her and 

she would “play with me at your own risk.” She asked him if he 

was threatening her and told him to leave her alone. Several 

hours after he made the threat on the call with Delgado, he 

challenged Williams to “fade” at Choi’s apartment, which 

Williams understood to be a challenge to a fistfight. The day 

after the call to Delgado, Choi sent a text to Williams with the 

word “Exterm87” and sent a similar text to Castillo with the 

words “Exterminate” and “T87.” Both Williams and Castillo 

interpreted those messages as threats. Then a month later in 

January 2018, Choi sent a photograph of an axe that was 

forwarded to Castillo. When viewed within Choi’s pattern of 

erratic and threatening behavior, a jury could readily conclude 

Choi’s statement that he “need[ed] to end” Williams and Castillo 

was an unambiguous threat of harm.

Choi next argues it was not clear that he wanted his threat 

to be relayed to Williams and Castillo. A defendant may be 

convicted of a criminal threat made to a third party so long as 

“he specifically intended that the threat be conveyed to the 

victim.” (In re Ryan D. (2002) 100 Cal.App.4th 854, 861; see 

People v. Felix (2001) 92 Cal.App.4th 905, 913 (Felix); In re David 

L. (1991) 234 Cal.App.3d 1655, 1659 (David L.).) In David L., for 

example, sufficient evidence showed a minor intended a criminal 

threat to be conveyed to the victim when he made the threat to 

the victim’s friend and it “followed a series of hostile encounters 

between the minor and the victim culminating in a fight at 

school,” which the friend had witnessed. (David L., supra, at p. 

1660.)
12

As in David L., the evidence here supported an inference 

Choi intended Delgado to convey his threat to Williams and 

Castillo. By all accounts, Choi, Delgado, Williams, and Castillo 

were a close-knit group, taking the same classes, studying 

together, and hanging out socially. They frequently texted and 

emailed each other as a group. Choi made his threat on the call 

with Delgado as she was driving to LACC to sit for final exams 

they were all taking, so he undoubtedly knew she would see 

Williams and Castillo when she arrived at school. The threat 

came two days after he sent disturbing messages to Castillo and 

only hours before he challenged Williams to a fight. The day 

after the call, he texted Williams and Castillo messages alluding 

to extermination and the Penal Code section for murder. All of 

this suggests the group had open lines of communication and 

Choi was not shy about using them to contact the others with his 

disturbing messages. The jury could have reasonably inferred he 

called Delgado the morning of finals so she would share his 

threat with Williams and Castillo. 

Choi relies on Felix, but it is readily distinguishable. 

The defendant in that case conveyed his threats to his jail 

therapist “while discussing highly personal thoughts about 

homicide, suicide, and his emotions for [the victim]. He made 

them in a setting where the patient has an expectation of 

confidentiality.” (Felix, supra, 92 Cal.App.4th at p. 914.) The 

court distinguished David L. because, unlike the friendship 

between the victim and friend in that case, there was no evidence 

to show the defendant knew the therapist would convey the 

threat to the victim. (Felix, supra, at p. 913.) As in David L. and 

unlike in Felix, the close connection among Choi, Delgado, 

Williams, and Castillo could give rise to a reasonable inference 
13

that Choi called Delgado the morning of final exams intending 

that she communicate his threat to Williams and Castillo, whom 

she would see shortly.

Choi’s last argument is not entirely clear, but he seems to 

suggest the evidence showed his threat was not imminent 

because he said he was not coming to school on the day of finals. 

A threat need only convey “ ‘ “a gravity of purpose and an 

immediate prospect of execution of the threat.” ’ ” (Wilson, supra, 

186 Cal.App.4th at p. 807, italics added.) “[I]t ‘does not require 

an immediate ability to carry out the threat.’ ” (Ibid.) The fact 

that Choi phrased his threat as a compulsion—the “need” to 

“end” Williams and Castillo—strongly suggested Choi intended to 

execute the threat imminently. Even if he did not intend to go to 

school the morning of finals on December 16, the jury could have 

reasonably concluded the prospect of fulfilling the threat was 

sufficiently immediate to satisfy the statute. 

Choi relies on In re A.C. (2019) 37 Cal.App.5th 262, but it 

contains a crucial factual distinction. In that case, the minor did 

not want to go to school because he was being bullied. He told his 

counselor if he went to school and got teased, “ ‘he was going to 

react’ ” and “ ‘basically stab them with whatever he had 

available.’ ” (Id. at p. 265.) Here, by contrast, Choi’s threat was 

not conditioned on him being forced to go to LACC. Instead, he 

was told to stay away on the day of finals, which distressed him. 

He had a recent history of erratic and disturbing behavior. 

Williams, Castillo, and Martirosyan were all scared, suggesting 

they believed he would show up at LACC, despite his claims to 

the contrary. Williams even thought he would “shoot up the 

school.” The jury could have discounted Choi’s comments that he 
14

was not coming to LACC and concluded there was an imminent 

prospect that he would execute his threat. 

Sufficient evidence supported the criminal threats counts.

II. The Court Acted Within Its Discretion in Excluding 

Defense Witness Seaton

Choi contends the trial court abused its discretion and 

violated his constitutional rights to present a defense when it 

denied his request to call Patrick Seaton, a fellow student. 

We review the exclusion of evidence for abuse of discretion. 

(People v. Martinez (1998) 62 Cal.App.4th 1454, 1459.) We find 

none.

Before trial, Choi expressed his intention to call Patrick 

Seaton as a defense witness. The court noted if Choi called 

Seaton to testify about conversations he had with Choi, that 

testimony would be hearsay. Choi disagreed. He explained 

Seaton would testify about Choi “contacting Kareem Williams on 

the morning of the test which he has completely omitted in his 

statements.” Choi intended to undermine Williams’s testimony 

that he believed Choi would come shoot up the school on the day 

of finals “[b]ecause I was supposed to give Patrick [Seaton] two 

Scantrons that morning so he can take his two finals. I wasn’t 

able to take my finals that morning, so I called Kareem and 

asked him basically can you give Patrick two scans for me? 

Kareem gave Patrick two Scantrons and these are all through 

text communications. [¶] Now, later on after I told Kareem that 

I can’t make it to school because, you know, somebody told on me, 

Kareem said, ‘Oh, I think Ernest is going to come to school with a 

gun and shoot us all.’ Now, why would he say that when I told 

him directly—.” The court said Choi could call Williams on that 
15

point. The court tentatively allowed Choi to call Seaton on a 

different topic. 

During trial, Choi renewed his request to call Seaton to 

testify that Choi called and texted him the morning of finals to let 

him know Williams would provide the Scantrons to him. The 

court noted, “I think none of that is in dispute.” The court 

excluded Seaton because “[h]e has nothing relevant to say.” Choi 

objected that the court was violating his “Sixth Amendment right 

to call witnesses . . . in my defense.”5 

On appeal, Choi contends the trial court should have 

allowed Seaton to testify as a “relatively objective third party, one 

whose testimony would corroborate a basic and important point 

about appellant’s intentions on the morning of December 16 at 

roughly the same time period when [Choi] was supposed to be 

‘threatening’ Williams and Castillo by speaking with Carolyn 

Delgado.” He emphasizes that Martirosyan testified that, in 

conflict with Williams’ testimony and Seaton’s proposed 

testimony, Williams told her Choi was “going to show up to school 

and to make sure there’s a Scantron waiting for you.” He argues 

this “raised questions” about Choi’s intentions that day. 

The trial court acted well within its discretion in excluding 

Seaton’s testimony. There was no genuine dispute at trial that 

Choi called Williams on the morning of finals to instruct him to 

give Seaton two Scantrons. Williams admitted on both direct and 

cross examination that Choi had called him on the day of finals to 

say he wasn’t coming to school, and he asked Williams to give two 

5 In the trial court, Choi identified other topics that Seaton’s 

testimony would cover, but Choi does not raise those topics on 

appeal.
16

Scantron forms to Seaton. There was also other testimony that 

Choi wasn’t coming to school that day. Professor Vargas testified 

he told Choi not to come to school, and Choi told Delgado in his 

phone call and told Castillo and Delgado in text messages that he 

had been instructed not to come to class. 

While Martirosyan recalled that Williams told her Choi 

was actually coming to school to pick up a Scantron, the record 

makes clear her testimony was not offered for the truth of what 

Williams said. The prosecution objected to this line of 

questioning as not relevant unless it was “being offered for 

potential effect on the witness’s state of mind,” to which Choi 

responded, “Yes.” Thus, no genuine conflicted existed in the 

evidence, and Seaton’s testimony would have added little to this 

record.

Choi’s derivative constitutional argument fails because 

“ ‘the ordinary rules of evidence do not impermissibly infringe on 

the accused’s [state or federal] right to present a defense.’ ” 

(People v. Robinson (2005) 37 Cal.4th 592, 626–627.)

III. Despite Its Reference to a Blanket Practice, the Trial 

Court Properly Exercised Its Discretion to Deny 

Advisory Counsel

As noted, Choi represented himself in the trial court. 

Before trial, he filed a written motion requesting to use either his 

own advisory counsel or be appointed advisory counsel. The court 

denied the motion, explaining: “Mr. Choi, I’ve indicated to you 

from the very beginning and I’m sure the court who took your 

counsel waiver also informed you that you would not be entitled 

to co-counsel. That’s not the way it’s done in this courthouse. 

I know I still have the authority to appoint counsel in your case,

but I’m going to deny that request. I believe that you have made 
17

a choice to represent yourself. You are, obviously, a very, very 

intelligent man and you can work with a lawyer and help that 

lawyer get ready for trial, assist that lawyer, but it doesn’t go the 

other way around.” (Italics added.) 

Choi clarified he was asking for “advisory” counsel, not cocounsel. The court responded, “I treat those two as the same.” 

Choi contended advisory counsel was “a little bit different” 

because advisory counsel “is just to manage technical questions 

about the technical procedures of trial when what I need to ask 

and I wouldn’t be given.” The court reminded him of the rights 

he waived to represent himself and required him to “do it on your 

own. Many people do it and you’re smarter than most, so you’ll 

just have to become familiar with the rules or give up your pro 

per status and assist an attorney who knows what he or she is 

doing.” 

Choi contends the court impermissibly applied a blanket 

rule to deny his request for advisory counsel as demonstrated by 

the court’s comment, “That’s not the way it’s done in this 

courthouse.” The trial court has discretion to appoint advisory 

counsel. (People v. Crandell (1988) 46 Cal.3d 833, 861 (Crandell), 

overruled on another ground by People v. Crayton (2002) 28 

Cal.4th 346, 364–365.) Factors for the court to consider include 

the defendant’s education, familiarity with the criminal justice 

system, and demonstrated legal abilities; the defendant’s reasons 

for seeking advisory counsel, including evidence of a 

manipulative purpose; the seriousness of the charges; and the 

complexity of the issues. (People v. Debouver (2016) 1 

Cal.App.5th 972, 976 (Debouver).) We review the decision for 

abuse of discretion and will only set it aside if it is “arbitrary, 

capricious, or whimsical.” (Ibid.) 
18

A court necessarily abuses its discretion when it fails to 

exercise its discretion at all, however. (People v. Bigelow (1984) 

37 Cal.3d 731, 743 (Bigelow); see Crandell, supra, 46 Cal.3d at 

p. 861.) “A discretion which can be exercised in one way only, or 

which is shackled by rigid rules regarding its exercise, is no 

discretion at all.” (Crandell, supra, at p. 863.) Both Crandell and 

Bigelow involved erroneous blanket denials of advisory counsel 

without the exercise of discretion. In Bigelow, the trial court 

incorrectly believed California law did not permit appointment of 

advisory counsel. (Bigelow, supra, at pp. 742–743.) In Crandell, 

the trial court believed “there is no such thing” as advisory 

counsel and stated it “wouldn’t appoint that kind of counsel 

anyway.” (Crandell, supra, at p. 862.) This was error because 

“[n]one of the judges who considered the matter expressly 

acknowledged the existence of discretion to appoint advisory 

counsel for defendant, and there is no evidence that any judge 

engaged in a reasoned exercise of judgment based on an 

examination of the particular circumstances of this case.” (Ibid.)

We agree with Choi that if the trial court’s comment 

demonstrated it was following a blanket practice or policy to deny 

advisory counsel in all cases, such a standardized approach would 

be erroneous. As Bigelow and Crandell made clear, the 

appointment of advisory counsel is a discretionary choice that 

must be guided based on the individualized circumstances of each 

case and each defendant. The court’s comment here that 

advisory counsel was unavailable to Choi because “[t]hat’s not the 

way it’s done in this courthouse” falls within the same category 

as the trial court’s misunderstanding of California law in Bigelow 

and the trial court’s comments in Crandell that there was “no 

such thing” as advisory counsel and it “wouldn’t appoint that 
19

kind of counsel anyway.” Trial courts may neither create nor 

implement such blanket policies or practices to deny advisory 

counsel. 

That said, unlike in Bigelow and Crandell, the record in 

this case demonstrates the court did not apply the blanket 

practice to deny advisory counsel, even if it improperly suggested 

such a practice existed. The court here stated on the record, 

“I know I still have the authority to appoint counsel in your case,” 

thereby “expressly acknowledg[ing] the existence of discretion to 

appoint advisory counsel for” Choi. (Crandell, supra, 46 Cal.3d at 

p. 862; see Debouver, supra, 1 Cal.App.5th at p. 976 [“The trial 

court ruled that it was not required to appoint advisory counsel 

but acknowledged that courts may do so. This is not a case in 

which the trial court failed to exercise its discretion or believed 

there is no such thing as advisory counsel,” citing Crandell and 

Bigelow].) The court also “engaged in a reasoned exercise of 

judgment based on an examination of the particular 

circumstances” of Choi’s case. (Crandell, supra, at p. 862.) 

It noted Choi “made a choice to represent” himself, he was 

“obviously, a very, very intelligent man,” and he could help a 

lawyer prepare for trial. While the court also noted the 

assistance “doesn’t go the other way around,” again in context the 

court was simply referring to the individualized circumstances of 

Choi’s case. The court went on to remind him of the rights he 

waived when he chose to represent himself, again noting he was 

“smarter than most.” And of course, the trial court was aware 

the entire case arose while Choi was enrolled in a paralegal 

program at LACC. 

At oral argument, Choi’s counsel analogized this case to 

People v. Hernandez (2011) 51 Cal.4th 733 (Hernandez), but it is 
20

distinguishable. In that case, the California Supreme Court held 

the trial court’s comments on the record made clear it was 

improperly applying a practice of requiring a deputy to stand 

behind every defendant who testified, rather than exercising 

discretion to assess the need for such heightened security on a 

case-by-case basis. (Id. at p. 736.) 

As the court explained: “Here, the record demonstrates the 

trial court’s decision to station a deputy at the witness stand 

during defendant’s testimony was not based on a thoughtful, 

case-specific consideration of the need for heightened security, or 

of the potential prejudice that might result. The court asserted 

that it had seen a deputy at the witness stand ‘in every trial I’ve 

ever done . . . because of security,’ and noted that a bailiff was 

‘supposed’ to sit behind ‘all defendants’ who testify, ‘even in a 

petty theft’ case. Despite a pointed request from defense counsel, 

the court refused to make an individualized finding that 

defendant’s behavior warranted this heightened security 

measure. Instead, the court responded that this defendant 

‘deserve[d]’ to have this procedure employed. These remarks 

reveal that the court was following a general policy of stationing 

a courtroom officer at the witness stand during any criminal 

defendant’s testimony, regardless of specific facts about the 

defendant or the nature of the alleged crime.” (Hernandez, supra, 

51 Cal.4th at p. 743.) 

Choi’s counsel correctly pointed out the trial court in 

Hernandez also mentioned some case specific characteristics of 

the defendant and our high court concluded that did not change 

the blanket nature of the denial. “The trial court did refer briefly 

to some case-specific matters. It is evident from consideration of 

the entire record, however, that the court elevated a standard 
21

policy above these individualized concerns and based its decision 

on the generic policy. . . . The discussion as a whole reveals that 

the court perceived this to be a routine order, and the court’s 

scattered references to individualized facts constituted, at most, 

an effort to construct a post hoc justification for a security 

measure the court had already decided to employ pursuant to a 

standard policy. While the court did characterize the order as 

‘a discretionary call,’ it made clear that the deputy’s placement at 

the witness stand was ‘just what happens in every case that I’ve 

ever tried.’ ” (Hernandez, supra, 51 Cal.4th at p. 743.)

Other circumstances in the case also pointed to a “routine 

practice” of stationing a deputy at the witness stand. “There was 

no discussion of the deputy following defendant to the stand 

before it happened. Defense counsel said the procedure took her 

by surprise. She had never seen it done before, and she would 

have objected to the deputy’s presence if she had known the court 

intended to order it. The court did not discuss the matter with 

counsel, did not hear case-specific rationales for increased 

security, and did not state reasons on the record before imposing 

the security measure. All of these circumstances further support 

our conclusion that the court ordered the deputy’s presence as a 

matter of routine.” (Hernandez, supra, 51 Cal.4th at p. 744.)

None of the circumstances from Hernandez are present in 

this case. Instead, the record here points to the opposite 

conclusion. While our high court in Hernandez held the trial 

court applied a blanket policy despite some references to casespecific facts, here the trial court relied on Choi’s specific abilities 

and characteristics to deny advisory counsel despite its passing 

comment, “That’s not the way it’s done in this courthouse.” 

Viewed in the context of this record, we are satisfied the court did 
22

not apply a blanket practice of denying advisory counsel without 

exercising its discretion under the circumstances. Choi does not 

argue the trial court abused its discretion when it evaluated the 

individualized characteristics of his case. We find no error 

warranting reversal.

IV. The Prior Prison Terms Must Be Stricken and Choi 

Must Be Resentenced

Effective January 1, 2020, SB 136 amended section 667.5, 

subdivision (b) to eliminate the one-year prior prison term 

enhancement unless the prior term was served for a sexually 

violent offense. (Stats. 2019, ch. 590, § 1; see People v. Winn 

(2020) 44 Cal.App.5th 859, 872 (Winn); People v. Lopez (2019) 

42 Cal.App.5th 337, 340–342 (Lopez).) This new law applies to 

nonfinal judgments pending on appeal. (Winn, supra, at p. 872.) 

Choi’s prior prison terms for stalking no longer qualify for the 

enhancements and his case is still pending, so the two prior 

prison term enhancements must be stricken.

Without providing any explanation, Choi says in his 

briefing that he “wishes to waive any challenge to the[se] 

enhancements.” However, because SB 136 applies retroactively 

to his sentence and he no longer qualifies for the enhancements 

under section 667.5, his sentence is unauthorized. An 

unauthorized sentence may be corrected at any time. (See People 

v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 4 [pl. opn. of Werdeger, 

J.].)

Respondent argues we should remand for the trial court to 

strike the enhancements and conduct a full resentencing. 

We agree. The court did not impose the maximum sentence. 

(Cf. Winn, supra, 44 Cal.App.5th at pp. 872–873 [no remand for 

resentencing because trial court imposed maximum sentence]; 
23

Lopez, supra, 42 Cal.App.5th at p. 342 [same].) The court made 

various discretionary sentencing choices to structure Choi’s 

seven-year sentence as follows: a base term of five years 

consisting of the mid-term of three years for the stalking count 

involving Martirosyan plus two years for the two prison priors; 

one-year consecutive term (one-third of the mid-term) for the 

stalking count involving Williams; one-year consecutive term 

(one-third of the mid-term) for the stalking count involving 

Castillo. The court stayed punishment on the two criminal 

threats counts. 

In the absence of the two one-year prior prison term 

enhancements, the court may reevaluate its sentencing decisions 

in light of the changed circumstances. (See People v. Buycks 

(2018) 5 Cal.5th 857, 893 [“[W]hen 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.’ ”].) 

Remand for resentencing is appropriate.

V. The $30 Criminal Conviction Assessment Must Be 

Corrected in the Abstract of Judgment

Respondent points out the sentencing minute order and 

abstract of judgment correctly included a $200 court operations 

assessment pursuant to section 1465.8 but incorrectly included a 

$30 fee for the criminal conviction assessment pursuant to 

Government Code section 70373. The correct criminal conviction 

assessment is $150, or $30 per conviction for Choi’s five 

convictions. (People v. Lopez (2010) 188 Cal.App.4th 474, 480.) 

When the trial court issues a new abstract of judgment following 

resentencing, the fees must be corrected accordingly.
24

DISPOSITION

Choi’s sentence is remanded with directions to strike the 

two one-year enhancements pursuant to section 667.5, 

subdivision (b) and conduct a full resentencing. The court is 

directed to ensure the correct fees of $200 (§ 1465.8) and $150 

(Gov. Code, § 70373) are reflected in the new abstract of 

judgment issued following resentencing.

In all other respects, the judgment is affirmed.

CERTIFIED FOR PUBLICATION

BIGELOW, P. J.

We Concur:

GRIMES, J.

STRATTON, J.