Jump To

Top Caption Combined Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

March 9, 2026 Get Citation Alerts Download PDF Add Note

People v. Green CA2/5

California Court of Appeal

• Citations: None known
• Docket Number: B339949

• Precedential Status: Non-Precedential

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Combined Opinion

Filed 3/9/26 P. v. Green CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B339949

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. TA131223)

TOYRION GREEN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Teresa P. Magno, Judge. Affirmed with
directions.
Maggie Shrout, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri, Supervising Deputy
Attorney General, and Lauren N. Guber, Deputy Attorney
General, for Plaintiff and Respondent.
The trial court recalled defendant and appellant Toyrion
Green’s (defendant’s) sentence pursuant to Penal Code section
1172.75 (a statute that deems most previously imposed prior
prison term enhancements invalid) and held a full resentencing
hearing.1 At that hearing, defendant asked to represent himself
and the trial court never formally ruled on that request; instead,
the court suggested defendant should proceed with counsel while
also allowing defendant to personally argue the matter too.
Following argument, the trial court ruled it would dismiss the
one-year prior prison term enhancement that was part of
defendant’s prior criminal judgment but otherwise decline to
further reduce defendant’s sentence. We are principally asked to
decide whether the trial court violated defendant’s constitutional
rights by not granting his request to represent himself.

I. BACKGROUND
A. Defendant’s Conviction, Sentence, and Direct Appeal
In October 2014, the Los Angeles County District
Attorney’s Office filed an eight-count amended information
against defendant charging him with attempted murder and
other offenses. In addition to the eight substantive counts, the
information alleged defendant had previously been convicted of a
serious and/or violent felony (specifically, first degree burglary)
and had sustained two prior convictions for which a prison term
was served as described in section 667.5 (one of which was the
first degree burglary conviction).

1
Undesignated statutory references that follow are to the
Penal Code.

2
At trial, the jury convicted defendant on six of the eight
counts: shooting at an occupied motor vehicle (count 2), criminal
threats (count 3), and four counts of attempted murder (counts 4,
6, 7, and 8). The jury found true allegations that defendant
personally used or discharged a firearm as to some of the counts.
At sentencing, defendant was sentenced to a total of 39
years in prison. Although the sentencing judge made no mention
of the prior prison term enhancement when pronouncing
sentence, the minute order issued in connection with sentencing
and the abstract of judgment both indicated the enhancement
had been imposed.2
On appeal from the conviction and sentence, this court
affirmed defendant’s convictions but modified the judgment to
strike a four-year section 12022.5 firearm enhancement because
it was an element of the underlying offense. (People v. Green
(Nov. 29, 2016, B268500) [nonpub. opn.].) The appellate opinion
directed the superior court to prepare an amended abstract of
judgment to reflect the modification, but that document still
listed the section 12022.5 enhancement—though the time
imposed column on the abstract indicated it was “stayed.”3

2
The minute order and abstract of judgment still arrive at
the same 39 years to life aggregate sentence, however. That is
because both documents appear to treat a four-year sentence on
one count as consecutive rather than concurrent (as ordered) and
did not include a five-year prior serious felony conviction
enhancement that the court had imposed.
3
In 2022, defendant filed a petition for resentencing
pursuant to section 1172.6. The trial court found defendant had
not made a prima facie case of eligibility for resentencing and

3
B. Defendant’s Request for Resentencing That Is at Issue
in This Appeal
In March 2023, defendant used a habeas corpus form
petition to file a challenge to his conviction and sentence. The
document complained of “illegal sentence due to sentencing error”
(specifically alleging the trial court “imposed an illegal
enhancement”), discriminatory racial impact in sentencing, and a
purported “illegal” conviction for attempted murder. Submitted
with defendant’s habeas corpus form petition was a “Motion for
Modification of Sentencing” that complained that the trial court
had unconstitutionally enhanced his sentence pursuant to
sections 667.5 and 12022.53, subdivision (c).
The trial court construed defendant’s submission as a
request for resentencing pursuant to section 1172.75 and
appointed counsel for defendant. Counsel filed a resentencing
brief asking the court to strike the one-year prior prison term
enhancement (§ 667.5, subd. (b)) he believed had been imposed
and to hold a full resentencing at which the court should make
other reductions in the determinate components of his sentence.
The People filed an opposition to defendant’s request for
resentencing that argued reducing defendant’s sentence would
endanger public safety. The People maintained the court should
“deny [defendant’s] motion and impose the same sentence that
the defendant received without any reduction, including any
reduction for the [section] 667.5(b) prior previously imposed in
this case.”

denied the petition. Defendant appealed, and we affirmed.
(People v. Green (May 19, 2025, B332653) [nonpub. opn.].)

4
After several continuances, the trial court held a hearing on
defendant’s request for resentencing in July 2024. At the outset,
defendant asked to personally address the court, and when the
court informed him that he should speak to his lawyer, the
lawyer informed the court that defendant wanted to speak about
representing himself.
Defendant thereafter told the court he had motions he had
been trying to file and complained that his attorney did not
discuss his corrections file with him despite promising to do so.
He also mentioned his family had been sending his attorney
emails. The court asked defendant if he had attended law school.
He said no and explained he had been doing his own research.
Defendant also said he had been contacting his attorney “for the
last year or two, and my family had e-mailed and everything,”
and again referenced items in his corrections file. The court said
it would proceed with the hearing and, when it was time to hear
from defendant’s lawyer, the court would see if defendant still
wanted to represent himself. The court explained: “And I say
this because I don’t want you to make a mistake. Okay? And—
but I want us to just start and, I promise, before I hear from
[defense counsel], I’ll turn back to you and I’ll ask you if you still
want to represent yourself.” Defendant agreed this was
acceptable while at the same time maintaining he had a conflict
of interest with his lawyer and reiterating that both he and his
family had been contacting counsel.
Proceeding with the hearing, the court stated it had read
and considered the briefs submitted by defense counsel, as well
as letters of support for defendant, and the People’s opposition.
The court said that based on its review of the file, it appeared the
original sentencing court imposed an enhancement pursuant to

5
section 667.5, making defendant eligible for resentencing. (As we
later explain, this was incorrect.)
The court ruled it would recall defendant’s sentence
pursuant to section 1172.75 and strike the section 667.5,
subdivision (b) enhancement. The court then held a full
resentencing and considered further argument.
The court stated it was permitted to consider postconviction
factors, and asked defendant’s attorney if he had reviewed
defendant’s disciplinary records and record of rehabilitation.
Counsel responded in the affirmative, and the People also stated
they had reviewed the file. The People opined defendant did not
have a good disciplinary record, explaining defendant had a
number of write-ups, including ten within the preceding five
years. Among them were write-ups for fighting, battery on an
inmate, battery on a peace officer, and possession of a controlled
substance. The People also asserted defendant only completed
one course that was offered to him and had not tried to get a
G.E.D.
The court asked defense counsel why he believed defendant
was entitled to relief based on the deficits in his postconviction
record. Counsel stated he had spoken to defendant and
defendant’s family and believed the instances of violence in
prison were instances when defendant had to protect himself.
Counsel also asserted defendant had a significant amount of
support, including from people who were in the courtroom
observing the hearing. Counsel then paused to look for
something and the following exchange occurred:
“Defendant: Excuse me, your honor.
“The Court: Hold on. I promise I’ll give you as much time
as you wish to address the court. Okay?

6
“While he’s checking his thing, it can’t hurt to have you
advocate for yourself and have [counsel] advocate for you too.
Right?
“Defendant: That’s the thing.
“The Court: Hold on. Hold on.”
Continuing, defense counsel argued the court had
discretion to strike the 20-year firearm enhancement defendant
received and urged the court to do that and to run defendant’s
determinate term concurrently with his life sentence. Counsel
argued defendant’s support system was evidence of rehabilitation
because rehabilitation is, in part, what type of support someone
has when they are getting ready to be released from prison.
The trial court then asked defense counsel if it was okay if
the court heard from defendant personally. Defense counsel
agreed. The court addressed defendant directly and explained a
request under section 1172.75 was normally brought when
someone has a record of rehabilitating him or herself. The court
also said the record of defendant’s time in prison, compared to
other petitions the court had seen, was “the most horrible
petition [it has] seen in terms of how you’ve done in prison . . . .”
The court then said, “So let me hear from you. And this is the
time—this is what I want you to focus on: don’t focus on what
[counsel] didn’t do but, rather . . . . [¶] I want you to focus on
what else you want me to consider instead of why [counsel] didn’t
do this or should have done that. Tell me why, in spite of how
you’ve done in prison, you should be given this relief.”
Defendant told the court about classes he completed in
prison, explained he completed his G.E.D. when he was a
juvenile, and provided context and explanations for many of the

7
incidents for which he was written up in prison. He also asserted
his family had paperwork to support his assertions.
After defendant finished, the court asked if there was
anything else defendant wanted the court to consider to convince
it he had rehabilitated himself while incarcerated. Defendant
said, “That’s what I’m askin’ you. Can you give me a little more
time so that way I can be able to get all the things that I’m tellin’
you that I have to present it, instead of just bein’ my word.” The
court interjected, saying it believed defendant was trustworthy,
and was accepting his word regarding the classes he attended
and the completion of his G.E.D. Defendant told the court he had
changed and explained how his mindset had shifted. (In doing
so, however, he asserted he was “sentenced to life for a crime that
[he] did not commit.”)
After further argument from the People and further
statements from defendant, the court asked if there was anything
else. Defendant said no, defense counsel also said no, and the
People submitted. The court resentenced defendant to the same
sentence initially imposed—minus the section 667.5, subdivision
(b) prior prison term enhancement that the court believed was
originally part of defendant’s sentence.4 Defendant’s abstract of
judgment was amended, and the enhancement pursuant to
section 667.5 was removed.

4
Following the court’s ruling, defendant asked if he could
file some motions. The court said they were done, and any
motions would have to be submitted from prison.

8
II. DISCUSSION
There are two considerations that may preclude reaching
the sole disputed issue defendant raises in this appeal: whether
he should have been permitted to represent himself at the
resentencing hearing. There is the initial legal question of
whether a defendant has a Faretta v. California (1975) 422 U.S.
806 right to represent himself when his right to counsel
principally finds its source in a statute (section 1172.75) and our
Supreme Court has not decided whether the right also derives
from constitutional guarantees. There is also the initial factual
question (never raised below) of whether defendant was eligible
for section 1172.75 relief at all when the original oral
pronouncement of sentence did not include a section 667.5,
subdivision (b) prior prison term enhancement. For the sake of
argument, we shall assume these questions away and proceed on
the understanding that defendant did have a Faretta right to
represent himself and was eligible for a section 1172.75
resentencing. Even with these assumptions, defendant is not
entitled to reversal because he effectively abandoned his request
for self-representation by acquiescing in the trial court’s
procedure that allowed defendant’s attorney and defendant
personally to argue the matter at resentencing (they did not take
inconsistent positions). We will, however, order clerical
corrections to the abstract of judgment and the sentencing
minute order that we shall describe.

A. The Self-Representation Request Was Abandoned
Cases generally hold a self-representation request should
be granted “if three conditions are met. First, the defendant
must be mentally competent, and must make his request

9
knowingly and intelligently, having been apprised of the dangers
of self-representation. [Citations.] Second, he must make his
request unequivocally. [Citations.] Third, he must make his
request within a reasonable time before trial. [Citations.]”
(People v. Welch (1999) 20 Cal.4th 701, 729; accord, People v.
Thomas (2023) 14 Cal.5th 327, 397.) “[T]he Faretta right, once
asserted, may be waived or abandoned[, however].” (People v.
Dunkle (2005) 36 Cal.4th 861, 909, disapproved on another
ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see
also People v. Stanley (2006) 39 Cal.4th 913, 929 [Faretta motion
abandoned where defendant subsequently accepted appointed
counsel’s representation].) Here, the problem is that defendant
effectively abandoned his request to represent himself even if the
request is considered to have been timely and unequivocally
made.
Defendant initially made the request to represent himself
at the beginning of the section 1172.75 hearing and then
appeared poised to reiterate it thereafter when asking for the
court’s attention. At that juncture, the court said, “It can’t hurt
to have you advocate for yourself and have [counsel] advocate for
you too. Right?” Defendant began to respond, saying, “That’s the
thing,” and the court told him to hold on. Defense counsel then
made additional argument, and after that, the court turned to
defendant personally and asked him to “focus on what else you
want me to consider instead of why [counsel] didn’t do this or
should have done that. Tell me why, in spite of how you’ve done
in prison, you should be given this relief.” Defendant could have
then reiterated his desire to represent himself, but he did not and
instead followed the trial court’s suggestion to address his record
in prison (albeit while complaining counsel would have known

10
the facts defendant mentioned in court if counsel had contacted
defendant previously). After that, when the court asked if he had
“anything else” he wanted to say, defendant responded “no” and
did not ask for a formal ruling on his self-representation request.
Because defendant had time to consider the trial court’s earlier
suggestion that he and his attorney both argue the matter,
because defendant heard his attorney’s argument before he
personally argued the matter, and because the positions taken by
defendant and his attorney did not conflict, we understand
defendant to have had second thoughts about the wisdom or
necessity of representing himself (to the exclusion of appointed
counsel) and abandoned the idea. (People v. Kenner (1990) 223
Cal.App.3d 56, 62; see also People v. Skaggs (1996) 44
Cal.App.4th 1, 7-8 [defendant abandoned self-representation
request by failing to press the court to rule on it].)
Defendant, however, contends he did not abandon his self-
representation request because the court did not again
specifically ask him if he wanted to represent himself (as the
court earlier said it would). He argues that in the absence of
another prompt from the court, it was reasonable for him to
simply respond to the court’s later request that he tell the court
why he should be given relief.5 Defendant is correct that there
were no further specific prompts from the court, but he was given
a quite open-ended opportunity to say anything he wished before
the court rule—and defendant said nothing. That opportunity

5
We do not discuss whether defendant should have to make,
or could make, a showing of prejudice under the circumstances
because, as we have already said, we assume arguendo that
Faretta principles apply in this appeal.

11
was enough, for “[d]efendants who sincerely seek to represent
themselves have a responsibility to speak up.” (Kenner, supra,
223 Cal.App.3d at 62.) And “it is reasonable to require the
defendant who wants to take on the task of self-representation to
remind the court of the pending motion.” (Ibid. [deeming Faretta
motion abandoned or withdrawn where the defendant had time
and opportunity to follow up on request for a hearing on a Faretta
motion but failed to do so].)

B. Errors in the Abstract of Judgment and Sentencing
Minute Order
There are two clerical errors in the abstract of judgment,
and one in the original sentencing minute order, that we shall
order corrected. First, the sentencing judge did include “a five-
year prior” in its oral pronouncement of defendant’s sentence.
Based on the operative information, this was an enhancement
pursuant to section 667, subdivision (a). No five-year
enhancement was recorded on either the minute order or the
abstract of judgment, however, and this clerical order is subject
to correction. (See, e.g., People v. Boyd (2024) 103 Cal.App.5th
56, 63; People v. Jones (2012) 54 Cal.4th 1, 89; People v. Mitchell
(2001) 26 Cal.4th 181, 185.) Second, in this court’s opinion
affirming defendant’s conviction on direct appeal, we struck the
enhancement imposed pursuant to section 12022.5. (People v.
Green (Nov. 2, 2016, B268500) [nonpub. opn.].) We did not stay
it, as the abstract of judgment currently reflects. The abstract of
judgment should be amended to accurately reflect the
enhancement was stricken, not merely stayed.

12
DISPOSITION
The trial court’s July 19, 2024, order is affirmed. The
superior court is directed to prepare an amended abstract of
judgment that correctly reflects the imposition of an
enhancement pursuant to section 667, subdivision (a) and does
not reflect imposition of the section 12022.5 enhancement that
this court ordered stricken. (The abstract of judgment also
should not include imposition of an enhancement pursuant to
section 667.5, subdivision (b).) A copy of the corrected abstract of
judgment should be transmitted to the Department of
Corrections and Rehabilitation. The trial court is also directed to
correct the November 24, 2015, sentencing minute order to reflect
the trial court imposed a five-year enhancement pursuant to
section 667, subdivision (a).

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

HOFFSTADT, P. J.

KIM (D.), J.

13