Filed 3/24/16 P. v. Binion CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----


THE PEOPLE,                                                                                  C079427

                   Plaintiff and Respondent,                                      (Super. Ct. No. 12F2333)

         v.

JEREMY JAMES BINION,

                   Defendant and Appellant.




         Defendant Jeremy James Binion was charged by consolidated information with
eight counts of first degree residential burglary (Pen. Code, § 459),1 one count of
attempted first degree residential burglary (§§ 664, 459), and one count of possession of a
firearm by a felon (§ 29800, subd. (a)). The consolidated information also alleged facts
to support several sentence enhancements. On July 5, 2013, defendant entered a plea
agreement for a stipulated term of 25 years in prison. Defendant pleaded no contest to
four counts of first degree burglary and admitted the facts supporting two enhancements



1   Undesignated statutory references are to the Penal Code.

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(§§ 667, subd. (a)(1), 1170.12). The balance was dismissed with a Harvey2 waiver
stating the judge could consider the facts of the dismissed charges in ordering victim
restitution. On appeal, defendant contends the trial court violated his right to self-
representation by denying his right to present evidence at his restitution hearing. We
disagree. Defendant sought to represent himself after the presentation of evidence and
argument regarding restitution, and the trial court granted his request. We also deny as
unnecessary his requests for a remand as to the determination of his co-defendant’s case
and that his restitution order be made to reflect joint and several liability if she was
convicted. The restitution order already reflects joint and several liability.
        The People ask that we order the abstract of judgment corrected to accurately
reflect the restitution and assessments orally pronounced by the court. We shall order
correction of the abstract of judgment, but otherwise affirm the judgment.
                                    I. BACKGROUND
        Defendant was sentenced on July 2, 2014. The trial court ordered him to pay
restitution and parole revocation fines of $1,200 each (§§ 1202.4, subd. (b), 1202.45), the
latter of which the court stayed pending successful completion of parole. The court also
ordered defendant to pay a court operations assessment of $160 (§ 1465.8, subd. (a)(1)), a
criminal conviction assessment of $120 (Gov. Code, § 70373), and a crime prevention fee
of $39 (§ 1202.5). The court reserved victim restitution and set a hearing.
        On March 13, 2015, the court and counsel discussed the status of restitution and
various pieces of evidence informally. Then, defendant’s Marsden3 motion was heard
and denied. It was not the first such motion defendant made in the action, but it was the
first since sentencing.



2   People v. Harvey (1979) 25 Cal.3d 754.
3   People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

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         On May 4, 2015, the court heard argument regarding restitution. At the close of
argument, defendant’s counsel noted that defendant was requesting another Marsden
hearing. The trial court conducted the Marsden hearing, and then adjourned until May 7
to more fully evaluate defendant’s claims pertaining to the Marsden motion. The court
stated it would not need any more facts or argument from either counsel.
         The court began the reconvened hearing by concluding the continued Marsden
hearing and denying that motion. Defendant then filed a Faretta4 motion for self-
representation. The court noted that granting the Faretta motion at that point was an
academic exercise. The court explained it was ready to rule and had already heard
everything it would hear about restitution including through the Marsden hearing, but
defendant could file a written motion to reconsider the restitution decision or avail
himself of the appellate courts. The court granted the Faretta motion and ordered
defendant to pay $67,899.67 in victim restitution.
                                        II. DISCUSSION
A.       Right to Self-Representation
         Defendant alleges his Sixth and Fourteenth Amendment rights to self-
representation were violated because the trial court denied him the opportunity to present
evidence at his restitution hearing, more specifically by preparing an expert and calling
witnesses. The fatal flaws in defendant’s claim are that his request for self-representation
was made after the presentation of evidence and argument on the restitution issue, and it
was granted. To the extent defendant lost an opportunity to present evidence at his
restitution hearing, it was because he did not ask to represent himself before it began.
Further, he did not file a motion for reconsideration thereafter. The trial court did not
violate his right to self-representation.




4    Faretta v. California (1975) 422 U.S. 806 (Faretta).

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B.     Restitution Order
       Defendant notes co-defendant Donna Taylor was also charged in count 9
involving victim Kelly O’Leary. He asks us to “remand this matter for determination as
to the outcome of Donna Taylor’s case, with an order that joint and several liability be
made if she was convicted.” At the hearing on May 7, 2015, the court ordered defendant
to pay $67,899.67 in victim restitution, and asked the prosecutor to prepare an order.
That day, the court issued an order after hearing ordering defendant to pay $67,899.67 in
total restitution “as attached herein.” The attachment lists amounts by victim but did not
reflect any joint and several liability. This is the order cited by defendant. The following
day, the restitution order prepared by the prosecutor was signed by the judge and filed
with the court. In it, as relevant here, the court ordered defendant to:
       “1. Pay $11,655.79 jointly and severally with the codefendants Cinthia Willis and
Donna Taylor to Doug and Jeanne Willis
       “2. Pay $1,249 jointly and severally with the codefendant Donna Taylor to
Richard Cary
       “3. Pay $13,105 jointly and severally with the codefendant Donna Taylor to Kelly
O’Leary[.]”
       The People agree that joint and several liability should have been imposed and
contend this order renders defendant’s request unnecessary. This appears to resolve the
issue. Accordingly, defendant’s request is denied because the May 8, 2015, restitution
order already reflects joint and several liability as to O’Leary’s restitution.
C.     Errors in the Abstract of Judgment
       The People contend the abstract of judgment contains various errors that require
correction. We agree. At sentencing, the court imposed a $160 court operations
assessment and a $120 criminal conviction assessment. The abstract of judgment,
however, inaccurately reflects a $40 court operations assessment and a $30 criminal
conviction assessment. Additionally, the trial court ordered $67,899.67 in restitution, but

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the abstract states the court reserves restitution for the victims. Where the abstract of
judgment differs from the court’s oral pronouncements, the oral pronouncement of
judgment controls. (People v. Delgado (2008) 43 Cal.4th 1059, 1070.) Such errors in the
abstract of judgment may be corrected by this court on appeal. (People v. Mitchell
(2001) 26 Cal.4th 181, 185.) Accordingly, we direct the trial court to correct the abstract
of judgment to reflect the assessments and restitution orally imposed.
                                   III. DISPOSITION
       The judgment is affirmed. The trial court is direct to prepare a corrected abstract
of judgment reflecting a $160 court operations assessment, a $120 criminal conviction
assessment, and victim restitution of $67,899.67, and forward a certified copy of the
corrected abstract of judgment to the Department of Corrections and Rehabilitation.



                                                            /S/

                                                  RENNER, J.



       We concur:



            /S/

       NICHOLSON, Acting P. J.



            /S/

       ROBIE, J.




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