Opinion
AARON, J.
I.
INTRODUCTION
The People charged James Joseph Fox with assault with a deadly weapon (Pen. Code, former § 245, subd. (a)(1))
(count 1) and misdemeanor vandalism (§ 594, subds. (a) & (b)(2)(A)) (count 2). At a recess during the prosecutor’s direct examination of the victim, the trial court granted Fox’s request to represent himself for the remainder of the trial. The jury found Fox guilty on both counts. The trial court sentenced Fox to the upper term of four years in prison on count 1, and sentenced him to time served on count 2.
On appeal, Fox contends that he did not knowingly, intelligently, and voluntarily exercise his right to self-representation because the trial court incorrectly advised him that count 1 was not a strike offense. In the published portion of this opinion, we reject this claim. In the unpublished portion of this opinion, we reject Fox’s contention that the trial court abused its discretion in denying probation, and in sentencing him to the upper term. We reject these claims and affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A.
The People’s evidence
The victim, Coleen Grisso-Limas, began dating Fox in April 2011. On March 27, 2012, Fox contacted Grisso-Limas about the return of an electric
comb that she had borrowed from him. Fox was adamant that Grisso-Limas return the comb and threatened to break all of the windows in Grisso-Limas’s house if she failed to return it. Grisso-Limas agreed to return the comb and arranged to meet Fox at a gas station. Grisso-Limas wanted to meet in a public place because Fox sounded extremely upset.
Fox arrived at the gas station in a blue Toyota convertible. Grisso-Limas was driving a red pickup truck. As Fox pulled his car close to the red pickup truck, Grisso-Limas opened her window a couple of inches and pushed the comb out of the window. Grisso-Limas kept the doors to her car locked because she was afraid of Fox. Fox got out of his car and began yelling expletives at her. Fox started walking back to his car and then picked up a rock and threw it at Grisso-Limas’s truck, breaking the rear driver’s side window. Grisso-Limas began to drive off at a high rate of speed because she was afraid.
Fox followed Grisso-Limas. He drove close behind her truck, yelling at her. Fox threw another rock at her truck. Several vehicles pulled over in response to the chase, which was taking place in a residential area near a school. At one point, Fox passed Grisso-Limas’s truck, made a U-turn in the street, and then drove straight at the truck. Although Fox turned his car at the last minute, his car struck the front driver’s side of the truck.
After the collision, Fox got out of his car and started to approach Grisso-Limas’s truck. Grisso-Limas again drove away, and Fox got back into his car and followed her. Fox bumped the truck twice on the driver’s side. At one point, when Grisso-Limas became stuck in traffic, Fox got out of his car, approached her truck, and started to reach through the truck’s broken window in an attempt to unlock the door. As he did this, Grisso-Limas started to drive forward, and Fox fell off the truck.
As the incident was unfolding, Grisso-Limas and two eyewitnesses called 911. Police officers arrived at the scene after Fox had fallen from the truck.
B.
Defense evidence
The defense elicited evidence that Fox had attempted to avoid the collision between his car and the victim’s truck. Grisso-Limas told a defense investigator that she had overreacted during the incident. Grisso-Limas’s son testified
that Fox and his mother had spent a lot of time with each other, and that they used methamphetamine together.
III.
DISCUSSION
A.
Fox validly waived his right to counsel
Fox contends that the trial court violated his Sixth Amendment right to counsel. Specifically, Fox maintains that he did not knowingly, intelligently, and voluntarily exercise his right to self-representation because the trial court misadvised him that count 1 was not a strike offense. On appeal, we independently examine the entire record to determine whether Fox’s waiver of his right to counsel was valid. (See
People v. Burgener
(2009) 46 Cal.4th 231, 241 [92 Cal.Rptr.3d 883, 206 P.3d 420]
(Burgener).)
1.
Factual and procedural background
a.
The trial court’s comments during a pretrial hearing
Three days prior to the start of trial, defense counsel informed the court that Fox had made statements to counsel indicating that Fox believed he was being denied his right to represent himself. The court held a hearing for the purpose of determining whether Fox was requesting that the trial court appoint substitute defense counsel or whether Fox was seeking to represent himself. During the hearing, Fox expressly and unequivocally stated that he was not requesting that the court appoint new counsel or that he be allowed to represent himself.
Near the end of the hearing, the following colloquy occurred:
“[Fox]: I’m asking for a clarification—
“The court: Okay.
“[Fox]: —of what the law says. I’ve been charged with [section] 245[, subdivision] (a)(1).
“The court: Okay.
“[Fox]: It was explained to me as a naked [section] 245[, subdivision] (a)(1) because—
“The court: Which means it can’t be used as a strike.
“[Fox]: And they’re not alleging a deadly weapon.
“The court: Correct. Or—and then there’s the other part with the force likely to produce great bodily injury
that’s—
“[Fox]: Okay. That’s where the question comes right there.”
Fox proceeded to ask the trial court a question concerning whether it was necessary for the victim to have suffered an injury in order for him to be found guilty of a violation of former section 245, subdivision (a)(1). During that exchange, the following colloquy occurred:
“[Fox]: What I don’t understand in reading the other Penal Codes surrounding [section] 245[, subdivision] (a)(1), with regards to assault, with regards to assault and battery, I could literally grab feces, throw it at a cop, hit him in the head, punch him in the face, knock him out, and I’m looking at zero to one for assault and battery.
“[Defense counsel]: Oh no, you’re not.
“[Fox]: With this—if that’s what I’m charged with. That’s what it says in the Penal Code. But if I’m charged with this, everything I read show it’s, what was the injury? But there was no injury.
“[The court]: It’s—and again, I’m just going to just repeat what the charge is. It’s assault likely to create bodily injury. There are assault cases where there is no bodily injury.”
b.
Fox’s waiver of counsel during trial
At a recess during the prosecutor’s direct examination of the victim, four days after the pretrial hearing described above, Fox orally requested that he be allowed to represent himself for the remainder of the trial. Fox explained that he wanted the opportunity to cross-examine the victim himself and to call additional witnesses who defense counsel had indicated she did not intend to call to testify. The court asked Fox whether he had filled out “the
Lopez
form.”
The following colloquy then occurred:
“[Fox]: All except for the parts that I don’t know the answer to. Asking about maximum punishment and offenses, charges. Everything else has been checked.
“[Defense counsel]: He does have a copy of the complaint. It’s been provided.
“The court: Say again?
“[Defense counsel]: I have provided him with a copy of the complaint, so he does have that information.”
The court advised Fox that the maximum punishment for the charged offenses was five years. Fox filled out the remainder of the
Lopez
form and signed it.
The form states, “The defendant wishes to exercise the right to self-representation without the help of an attorney.” It lists “245 A-l” and “594 misdemeanor” as the charged offenses. The form also contains check-marks next to numerous admonishments concerning the act of self-representation.
Specifically, the form indicates that (1) the court will not give a self-represented defendant special treatment; (2) the defendant will have to
comply with all rales of criminal procedure and evidence; (3) the defendant has a right to counsel and, if indigent, a right to have an attorney appointed at no cost; (4) an experienced prosecutor will oppose the defendant; (5) no special library privileges will be available; (6) the court will not grant extra time for preparing the case for motions or for trial; (7) the court will not assign a special investigator to provide assistance; (8) the court will terminate self-representation if the defendant engages in disruptive behavior; and (9) the defendant cannot claim incompetency of counsel as an issue on appeal.
After receiving the signed
Lopez
form from Fox, the court held a
Faretta
hearing concerning Fox’s request to represent himself. The trial court began by asking Fox, “What are you charged with in this information?” Fox responded, “245(a)(l)[,] punishable by two, three, and four and misdemeanor vandalism, punishable also by up to one year.” The court then ascertained that Fox understood the nature of the alleged acts on which the charged crimes were based.
The trial court asked Fox if he understood that he would not receive any special treatment and that he would have to comply with all substantive and procedural rales of law and evidence. Fox responded in the affirmative. The court also explained that if it were to grant Fox’s request to represent himself, the court would not grant a continuance, and the trial would proceed as scheduled. Fox confirmed that he knew he was giving up his right to be represented by an attorney, and that the prosecution would continue to be represented by a skilled lawyer. The court additionally admonished Fox that he would not be able to claim on appeal that he had represented himself ineffectively. The court also stated, “Do you also understand that self-representation is almost always unwise and that persons exercising such right may conduct the case in a manner harmful to themselves?” Fox responded in the affirmative.
The court asked Fox to describe his educational background. Fox explained that he was able to read and write, that he had graduated from high school, and that he had attended college for two years. The court also asked Fox whether he had seen a psychiatrist in the past. Fox responded in the affirmative, and said that he been diagnosed with “wounded bird syndrome.” When asked to explain this diagnosis, Fox stated, “I tend to want to help people way too much, until it affects my life.” Fox stated that he had not been on any medication in the past.
The court proceeded to discuss with the prosecutor and defense counsel the circumstances surrounding a different trial judge’s denial of Fox’s request to represent himself earlier in the case. The prosecutor explained that at a prior
Faretta
hearing, Fox had been “extremely disrespectful to the court.” Defense counsel stated that Fox had been “highly emotional” during the prior hearing. After hearing from both counsel concerning Fox’s previous request to be allowed to represent himself, the court stated that it had reviewed the
Lopez
form “item by item” with Fox at this hearing, and that it was going to grant Fox’s request. The court added, “I don’t think it is in his best interest, but then that’s typical of this situation. At this point[,] I cannot point to anything that I think would be a valid basis to deny the motion.” After the court granted Fox’s request to represent himself, defense counsel confirmed that she had given Fox copies of the police report, the complaint, and the preliminary hearing transcript. Defense counsel indicated that she would provide Fox with a copy of the remainder of her file, as well.
c.
The trial court’s comments during a hearing concerning jury instructions
After both the People and the defense had rested, during a conference outside the presence of the jury concerning jury instructions, the court discussed with Fox and the prosecutor the court’s belief that a unanimity instruction
was required with respect to count 1 (assault with a deadly weapon). During this discussion, the following colloquy occurred:
“The court: ... I do think that we need to talk a little bit about the assault with a deadly weapon because ... the throwing of the rock could technically have been charged as that also, as [an] assault with a deadly weapon. And so I’m assuming the People are arguing that the assault with a deadly weapon is with the car and the vandalism is with a rock in the window.
“[Prosecutor]: Right. Yes.
“[Fox]: I was told by—
“The court: Pardon me?
“[Fox]: I was told by Ms. —
“The court: [Defense counsel].
“[Fox]: Yeah, it was a naked 245 and there was no allegation of a deadly weapon.
“The court: I don’t know how to answer that anymore. I believe that what you have is—well, you have a copy of the information, and you have a copy of the instructions at this point. [Ü] [Ms. Prosecutor], do you believe that the charge which has been filed is a strike?
“[Prosecutor]: I think that it could later be used as a strike if there was an investigation of the facts of the case, but I don’t believe as it’s presently charged.
“[The court]: That was my understanding as well, that as it is, it would qualify as a naked, as Mr. Fox is calling it, a naked 245(a). The catch is that . . . there are times when the court can look behind a conviction and could make a finding that the car was a deadly weapon. And I can [sz'c] make any representations
[sic]
to that. So it is what it is. It’s that charge, and that’s why I keep referring back to the information. You have what the charge is, but the reason I’m bringing that up has to do with the . . . unanimity instruction.”
“[Fox]: Do I have that?”
After this exchange, the court, Fox and the prosecutor continued their discussion concerning the court’s intent to provide a unanimity instruction with respect to count 1.
2.
Law governing a defendant’s waiver of counsel
In
Burgener, supra,
46 Cal.4th at pages 240-241, the California Supreme Court outlined the general law governing a determination of the validity of a defendant’s waiver of his constitutional right to counsel: “ A criminal defendant has a right, under the Sixth Amendment to the federal Constitution, to conduct his own defense, provided that he knowingly and intelligently waives his Sixth Amendment right to the assistance of counsel. [Citations.] A defendant seeking to represent himself “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ [Citation].” [Citation.] “No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation.” [Citation.] Rather, “the test is whether the record as a whole
demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.” [Citations.]’ [Citation.] Thus, ‘[a]s long as the record as a whole shows that the defendant understood the dangers of self-representation, no particular form of warning is required.’ [Citations.]”
3.
The trial court’s statements to Fox suggesting that count 1 was not a strike did not render his waiver of counsel invalid
Neither Fox, nor the People, nor our own research, has revealed any California case law specifically addressing the circumstances under which a trial court’s providing incorrect advice may render a defendant’s waiver of counsel invalid. However, after considering several factors that we believe are relevant to this inquiry, we conclude that the record as a whole demonstrates that Fox “ ‘ “understood the disadvantages of self-representation, including the risks and complexities of the particular case” ’ ”
(Burgener, supra,
46 Cal.4th at p. 241), despite the trial court’s statements concerning the potential future penal consequences of a conviction on count 1 for purposes of the three strikes law, and that his waiver of his right to be represented by counsel was knowing, intelligent and voluntary.
As a threshold matter, we consider the nature of the allegedly incorrect advice. As quoted above (see pt. III.A. 1.a.,
ante),
when Fox stated to the trial court that it was his belief that he was charged with “a naked 245 (a)(1),” the court interrupted Fox to define the term “naked 245 (a)(1)” as meaning “it can’t be used as a strike.”
Fox then stated, erroneously, “they are not alleging a deadly weapon,” to which the trial court incorrectly responded, “Correct.” Later during the same colloquy, the trial court incorrectly stated that Fox had been charged with “assault likely to create bodily injury.” Thus, the trial court did not expressly advise Fox that count 1 was not a strike offense and the trial court’s misstatements upon which Fox bases his claim were clearly made in response to misinformation provided by
Fox
as to the nature of the charges against him. However, since the ultimate question in determining whether Fox validly waived his right to counsel is “ ‘what the defendant understood’ ”
(Burgener, supra,
46 Cal.4th at p. 241), we acknowledge that a trial court’s misstatements, regardless of their origin,
may
result in an invalid waiver of the right to counsel. (See
People v.
Goodwillie
(2007) 147 Cal.App.4th 695, 734-735 [54 CalJR.ptr.3d 601] [“Although a propria persona defendant is responsible for informing himself regarding the substantive and procedural law at issue in his case, the court and the prosecutor, as officers of the court, have a duty not to misstate the law, whether intentionally or not.”].) We must therefore examine further whether the trial court’s misstatements concerning the potential future consequences of Fox’s criminal conviction rendered his subsequent waiver of the right to counsel invalid.
In this regard, we next consider whether Fox was provided with any information that corrected the trial court’s inaccurate statement that Fox was charged with assault with force likely to produce great bodily injury, and the court’s suggestion that this offense did not constitute a strike offense. (See
People
v.
Conners
(2008) 168 Cal.App.4th 443, 455 [85 Cal.Rptr.3d 627] [rejecting claim that defendant did not knowingly waive right to counsel on ground that trial court did not properly advise of potential penal consequence at
Faretta
hearing because court provided the required information to defendant prior to trial and confirmed that defendant wished to continue to represent himself].)
At the hearing at which the trial court granted Fox’s request to represent himself, defense counsel expressly stated on the record that she had provided Fox with copies of the accusatory pleading that contained the charged offenses. Both the initial complaint and the information unambiguously charged Fox in count 1 with assault with a deadly weapon.
Both the complaint and the information state in relevant part; “Count 1—ASSAULT WITH DEADLY WEAPON On or about March 27, 2012, JAMES JOSEPH FOX did unlawfully commit an assault upon another with a deadly weapon and instrument, in violation of PENAL CODE SECTION 245 (a)(1).”
Fox was arraigned on the information. It is also undisputed that Fox attended the preliminary hearing at which the trial court ordered that Fox be held to answer on the charged offense of assault with a deadly weapon, and that defense counsel confirmed at the
Faretta
hearing that Fox had been provided with a copy of the preliminary hearing transcript.
While it is true that at one pretrial hearing both Fox and the trial court misspoke concerning the nature of the offense charged in count 1, the record is clear that by the time Fox elected to represent himself, Fox had repeatedly been correctly informed that he was charged with committing an assault with a deadly weapon. Further, as noted previously, it is undisputed that assault with a deadly weapon is a strike offense. (§ 1192.7, subd. (c)(31).)
We next consider the relationship between the trial court’s misstatements concerning the charge in count 1 and Fox’s request to represent himself. The trial court’s statements were made during a pretrial hearing four days before Fox requested to represent himself, and did not directly relate to the issue of the “ ‘dangers of self-representation.’ ”
(Burgener, supra,
46 Cal.4th at p. 241.)
Rather, the court’s misstatements pertained to the possible future consequences of a conviction on count 1, a collateral subject as to which Fox concedes he would not have been entitled to any admonishment, even if he had pled guilty to the charged offense. (See
People
v.
Bernal
(1994) 22 Cal.App.4th 1455, 1457 [27 Cal.Rptr.2d 839] [prior to pleading guilty to the charged offense, “[a] defendant need not be advised of the possible future use of a conviction in the event the defendant commits a later crime”].)
Most importantly, we see no evidence in the record that Fox’s decision to represent himself was in any way related to the misinformation that the trial court provided concerning the collateral consequences of a conviction on count 1, for purposes of the three strikes law. Fox argues in his brief that “[a]ppellant was apparently extremely concerned about this issue because he specifically asked the trial court about it during a . . . hearing, four days before he made his motion for self-representation.” On the contrary, a fair reading of the hearing colloquy to which Fox refers, quoted above (see pt.III.A.l.a,
ante),
reveals that Fox was concerned with whether it was necessary for the victim to have suffered an injury in order for him to be found guilty of a violation of former section 245, subdivision (a)(1), and that the trial court’s comments concerning the nature of a “naked 245 (a)(1)” were essentially an aside.
Further, at the hearing at which the trial court granted Fox’s request to represent himself, the court admonished Fox at length regarding the dangers of self-representation, and there is nothing in the record of that hearing that suggests that whether count 1 was a strike offense had any bearing on Fox’s decision to waive his right to be represented by counsel. Rather, Fox stated that his request to represent himself was premised on his desire to cross-examine the victim himself, and to call certain witnesses whom defense counsel had indicated she did not intend to call.
Moreover, during the jury instruction conference, after the trial court expressly told Fox that count 1 might be a strike offense,
Fox did not argue that his previous waiver of counsel had been invalid based on his misunderstanding of the potential
consequences of the charge in count 1, nor did he seek to have counsel reappointed to represent him for the remainder of the proceedings. Thus, even assuming that Fox is correct in arguing that if a “defendant waives counsel and represents himself
based upon
[the trial court’s] incorrect advice, ... the waiver of counsel is invalid and involuntary”
(italics added), there is simply no evidence that Fox relied on the trial court’s misstatements in deciding to ask to represent himself in this case. (Cf.
People
v.
D’Arcy
(2010) 48 Cal.4th 257, 286 [106 Cal.Rptr.3d 459, 226 P.3d 949] [rejecting claim that trial court violated defendant’s right to self-representation by misadvising defendant that he could decide which defense theory counsel would present because “defendant fails to show that he actually relied on the court’s misadvisement in relinquishing his right to self-representation . . .”].)
After considering the nature and context of the trial court’s misstatements and the relationship between the trial court’s misstatements and Fox’s request to represent himself, we conclude that Fox validly waived his right to counsel and validly exercised his right to self-representation.
Erskine, supra,
355 F.3d 1161, which Fox cites in his reply brief, does not compel a different result. At a
Faretta
hearing in
Erskine,
in response to the district court’s questioning concerning whether the defendant knew the penalty he was facing if convicted, the defendant stated that the maximum penalty for the charged offense was
one
year.
(Erskine, supra,
at p. 1165.) The maximum penalty was actually
five
years. The district court did not inform the defendant of this fact.
(Ibid.)
On appeal, the
Erskine
court noted that Ninth Circuit case law
(U.S.
v.
Balough
(9th Cir. 1987) 820 F.2d 1485, 1487 (en banc)) required a district court to ensure that a defendant understands “the possible penalties” before permitting the defendant to waive the right to counsel.
(Erskine, supra,
at p. 1167.) The
Erskine
court held that the defendant’s “waiver of his Sixth Amendment right was invalid because
the court failed to advise him correctly at the
Faretta
hearing of the possible penalties he faced, and the record d[id] not show that he had an accurate understanding of the potential consequences at the time he agreed to waive that right.”
{Id.
at p. 1162.)
Assuming that the trial court in this case had a duty to ensure that Fox understood the possible penalties that he was facing,
unlike in
Erskine,
which involved “a revelation that quintupled the stakes of self-representation”
(Erskine, supra,
355 F.3d at p. 1165), it is undisputed that Fox was specifically advised at the
Faretta
hearing that he was facing a potential sentence of five years. This was correct. Further, the misadvisement at issue in
Erskine
related to a direct consequence of conviction (the maximum term of imprisonment) and was issued as part of a
Faretta
advisement. In contrast, the misadvisement in this case pertained to a collateral consequence and was stated by the court in the course of a nonresponsive remark to Fox’s question about another subject during a pretrial hearing. In short, the misadvisement at issue in
Erskine
was materially different from the one at issue in this case.
We reject Fox’s contention that “[as was true of the defendant in Erskine] appellant reasonably relied upon the trial court’s inaccurate statement regarding the serious nature of count one in forming his decision to represent himself.” On the contrary, for the reasons stated above, there is
no
evidence in the record that Fox considered the collateral consequences of a conviction on count 1 for purposes of the three strikes law in exercising his right to self-representation.
B.
The trial court did not abuse its discretion in denying Fox probation or in sentencing him to the upper term
IV.
DISPOSITION
The judgment is affirmed.
Benke, Acting P. J., and Huffman, J. concurred.
Appellant’s petition for review by the Supreme Court was denied June 18, 2014, S217781.