People v. Vicario CA4/2

• Court: California Court of Appeal
• Decided: September 29, 2015
• Docket: E060921
• Status: Unpublished

Opinion

Filed 9/29/15 P. v. Vicario CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E060921

v. (Super.Ct.Nos. FWV1303140 & FWV1303276) RUDOLPH VALDEZ VICARIO, OPINION Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson,

Judge. Affirmed.

Theresa Osterman Stevenson, under appointment by the Court of Appeal, for

Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A.

Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and

Respondent.

1 I.

INTRODUCTION

A jury convicted defendant Rudolph Valdez Vicario of one count of assault with a

deadly weapon (Pen. Code,1 § 245, subd. (a)(1), count 2), and one count of possessing a

slungshot2 (§ 22210, count 3). In a bifurcated proceeding, defendant admitted to

suffering six prior prison terms. (§ 667.5, subd. (b).) After relieving defendant’s public

defender and granting defendant’s motion to represent himself (see Faretta v. California

(1975) 422 U.S. 806 (Faretta)), the trial court denied defendant’s new trial motion and

sentenced him to the middle term of three years on count 2, deemed count 2 to be the

principal count, and sentenced defendant to eight months (one-third the middle term of

two years) for count 3, to be served consecutively with the sentence on count 2. The trial

court also sentenced defendant to one year for each of defendant’s six admitted prior

prison terms, to be served consecutively with the sentence on count 2, for a total sentence

of nine years eight months in state prison.

1 Unless otherwise indicated, all additional statutory references are to the Penal Code.

2Not to be confused with a slingshot (People v. Mulherin (1934) 140 Cal.App. 212, 214), a slungshot falls within the category of crude weapons commonly known as “saps.” (Id. at p. 215.)

2 On appeal, defendant contends: (1) the record does not contain substantial

evidence to support his conviction on count 2 for assault with a deadly weapon; (2) the

trial court committed prejudicial instructional error by instructing the jury that the

definition of a “deadly weapon” includes an object, instrument, or weapon that is

inherently dangerous; (3) the trial court erred by permitting him to waive his right to

counsel and to represent himself, for purposes of making a new trial motion and for

sentencing, without adequately inquiring whether defendant’s Faretta request was

unequivocal and by not adequately admonishing him of the disadvantages of self-

representation; (4) the trial court erred by not staying the sentence on count 3 pursuant to

section 654 or, in the alternative, by not imposing a concurrent sentence on count 3

instead of a consecutive sentence; and (5) because the record does not demonstrate the

trial judge understood its discretion to strike some or all of the admitted prior prison term

enhancements, the matter should be remanded for the judge to exercise that discretion.

We conclude the record contains substantial evidence that defendant committed an

assault with a deadly weapon. Although we agree with defendant that the trial court’s

instruction on the definition of a “deadly weapon” erroneously informed the jury that an

inherently dangerous weapon satisfies that definition, we hold the error was harmless

beyond a reasonable doubt. With respect to defendant’s Faretta claim, we conclude the

trial court’s inquiry into defendant’s desire to represent himself and the court’s

admonitions about the pitfalls of self-representation were constitutionally adequate.

Finally, we conclude the trial court properly imposed a sentence on count 3 to run

consecutively to the sentence on count 2, and there is no need to remand the case for the

3 court to exercise discretion of whether to strike some or all of defendant’s prior prison

term enhancements. The trial court struck three of the nine prior prison term allegations

in the first amended information and two out-on-bail enhancement allegations, so the

court clearly understood its discretion to strike prison priors. Because we find no

prejudicial error, we affirm the judgment in its entirety.

II.

FACTS AND PROCEDURAL BACKGROUND

In a first amended information, the People charged defendant with two counts of

possessing an instrument or weapon commonly known as a billy, blackjack, sandbag, sap,

or slungshot (§ 22210, counts 1 & 3), and one count of assault with a deadly weapon

(§ 245, subd. (a)(1), count 2). The People alleged defendant committed counts 2 and 3

while released from custody on bail or on his own recognizance pending charges in a

separate case within the meaning of section 12022.1, subdivision (b), and that defendant

suffered nine prior prison terms within the meaning of section 667.5, subdivision (b).

Ernest Vicario, defendant’s brother, testified that on September 28, 2013, he was

in his bedroom when he heard a scuffle or a “big loud thump” coming from another room

in the house. Ernest ran from his bedroom to the front of the house, where he saw his

nephew Javier Guevara enter another room. As Ernest approached the room, he

continued to hear the noise of a scuffle coming from inside and saw that someone closed

the door. Ernest forced the door open, and he saw Javier and defendant fighting and

grabbing each other in a bear hug. Ernest tried to separate the two by pushing defendant

out of the room. When he did so, he saw a rope with a lock on one end and a loop on the

4 other end dangling from defendant’s wrist. To avoid being hit, Ernest grabbed the lock

and pulled the rope from defendant’s wrist. Ernest testified that he did not see defendant

hit anyone with the lock, but said, “it could [have] been used as something” and that he

was afraid he might be hit by it. On cross-examination, Ernest testified that defendant is

a tree trimmer by trade. Although Ernest had never seen defendant use an item such as

the lock attached to the rope in his tree-trimming business, he had seen defendant use a

weighted item to throw a rope over a tree branch.

Javier testified that on September 28, 2013, he was outside his grandmother’s

Chino home when he heard yelling inside the house. Javier testified that when he entered

the house, he could not see who was arguing because the house was dark and his eyes

were still adjusting to coming in from bright daylight, but that he heard defendant’s

voice. Javier told Ernest to grab the rope with the lock attached to it from defendant’s

wrist “[j]ust in case he was mad and wanted to do something” with it. Javier denied that

he and defendant fought, but testified that he grabbed defendant in a bear hug. Javier

testified he did not believe he or Ernest were in danger of being hit with the lock.

Javier testified he “kind of” remembered receiving a phone call from a police

officer about the incident, but he could not remember telling the officer that defendant

approached him in an angry manner, that defendant swung the rope at him, and that he

moved just in time to avoid being struck. Javier testified he did remember telling the

officer that defendant “was out of it,” and that he told the officer he did not want

defendant arrested or prosecuted. On cross-examination, Javier testified he and

defendant work as tree trimmers, and that a weighted object attached to a rope may be

5 used to throw a longer rope around tree branches. On redirect, Javier testified his

memory of what transpired would have been fresher the night of the incident when he

spoke to the police officer on the phone.

Officer Miller of the Chino Police Department testified he is familiar with a

slungshot from his training and experience, and that a slungshot is a manufactured

weapon consisting of “a rope or a cord at one end attached or fastened to the wrist” with

“a heavy, weighted dense object” on the other end. On September 28, 2013, Miller

responded to a home in Chino. When he arrived, Miller found an object lying in the dirt

that he opined was a slungshot. He described the object as a rope or cord with a knot tied

on one end “for better grip and hard impact” and a padlock on the other end. When asked

how the object would be used as a weapon, Miller testified it would be “[a]ttached to the

wrist” and “swung around as a bludgeoning object.” Miller also testified the object could

potentially cause great bodily injury or death.

Miller testified he called Javier the night of the incident as part of his

investigation. Javier was reluctant to provide details of the incident, and told Miller he

did not desire prosecution. Miller testified he felt Javier was trying to minimize the

incident by saying he was “out of it” and could not remember what happened. According

to Miller, Javier said that when he went to the Chino residence, defendant and Ernest

were there. Javier also said defendant approached him in an “aggressive” and “enraged

manner,” and that defendant swung an object at him. Javier told Miller that he moved

away just in time to avoid being struck, but was unable to give Miller any further details

6 about the item defendant wielded. Javier told Miller he was “shaken up” and “frightful,”

and left the home to avoid further complications.

A jury found defendant not guilty of possessing a slungshot as alleged in count 1.

(§ 22210.) The jury found defendant guilty of assault with a deadly weapon as alleged in

count 2 (§ 245, subd. (a)(1)), and guilty of possessing a slungshot as alleged in count 3

(§ 22210).

In a separate proceeding, defendant admitted to suffering six prior prison terms.

(§ 667.5, subd. (b).) After granting defendant’s request under Faretta to represent

himself and denying defendant’s motion for new trial, the trial court sentenced defendant

to the middle term of three years on count 2, deemed count 2 to be the principal count,

and sentenced defendant to eight months (one-third the middle term of two years) for

count 3, to be served consecutively to the sentence on count 2. The trial court also

sentenced defendant to one year for each of defendant’s six admitted prior prison terms,

to be served consecutively with the sentence on count 2, for a total sentence of nine years

eight months in state prison. On the People’s motion, the trial court dismissed the two

out-on-bail enhancement allegations (§ 12022.1, subd. (b)) and the three prior prison term

allegations defendant did not admit.

Defendant timely appealed.

7 III.

DISCUSSION

A. Substantial Evidence Supports Defendant’s Conviction for Assault with a

Deadly Weapon

Defendant contends his conviction for assault with a deadly weapon is not

supported by solid and credible evidence because: (1) the sole testimony that defendant

swung a slungshot at Javier came from Officer Miller; (2) Javier denied telling Miller that

defendant swung the slungshot at him; and (3) the conversation between Miller and

Javier took place late at night after Javier was awoken by Miller’s telephone call. Based

on the well-settled standard of review, we conclude a reasonable jury could have found

defendant guilty beyond a reasonable doubt of assault with a deadly weapon.

“‘“On appeal, ‘“we review the entire record in the light most favorable to the

judgment to determine whether it contains substantial evidence—that is, evidence that is

reasonable, credible, and of solid value—from which a reasonable trier of fact could find

the defendant guilty beyond a reasonable doubt.” [Citation.]’ [Citation.] In conducting

such a review, we ‘“presume[] in support of the judgment the existence of every fact the

trier could reasonably deduce from the evidence.” [Citation.]’ [Citations.] ‘Conflicts

and even testimony which is subject to justifiable suspicion do not justify the reversal of

a judgment, for it is the exclusive province of the trial judge or jury to determine the

credibility of a witness and the truth or falsity of the facts upon which a determination

depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we

look for substantial evidence.’ [Citation.]”’” (People v. Jackson (2014) 58 Cal.4th 724,

8 749 (Jackson).) “The conviction shall stand ‘unless it appears “that upon no hypothesis

whatever is there sufficient substantial evidence to support [the conviction].”’

[Citation.]” (People v. Cravens (2012) 53 Cal.4th 500, 508.)

“Section 245, subdivision (a)(1), punishes assaults committed by the following

means: ‘with a deadly weapon or instrument other than a firearm,’ or by ‘any means of

force likely to produce great bodily injury.’ One may commit an assault without making

actual physical contact with the person of the victim; because the statute focuses on use

of a deadly weapon or instrument or, alternatively, on force likely to produce great bodily

injury, whether the victim in fact suffers any harm is immaterial. [Citation.]” (People v.

Aguilar (1997) 16 Cal.4th 1023, 1028 (Aguilar).)

“As used in section 245, subdivision (a)(1), a ‘deadly weapon’ is ‘any object,

instrument, or weapon which is used in such a manner as to be capable of producing and

likely to produce, death or great bodily injury.’ [Citation.] Some few objects, such as

dirks and blackjacks, have been held to be deadly weapons as a matter of law; the

ordinary use for which they are designed establishes their character as such. [Citation.]

Other objects, while not deadly per se, may be used, under certain circumstances, in a

manner likely to produce death or great bodily injury. In determining whether an object

not inherently deadly or dangerous is used as such, the trier of fact may consider the

nature of the object, the manner in which it is used, and all other facts relevant to the

issue. [Citations.]” (Aguilar, supra, 16 Cal.4th at pp. 1028-1029.)

9 Officer Miller testified he was familiar with slungshots from his training and

experience, and described them as manufactured weapons consisting of “a rope or a cord

at one end attached or fastened to the wrist” with “a heavy, weighted dense object” on the

other end. When Miller arrived at the Chino residence, he found an object lying in the

dirt that he opined was a slungshot. He described the object as a rope or cord with a knot

tied on one end “for better grip and hard impact” and a padlock on the other end. Miller

testified such a weapon would be “[a]ttached to the wrist” and “swung around as a

bludgeoning object,” and that it could potentially cause great bodily injury or death. 3

Miller also testified that he called Javier on the telephone and asked him what

happened. Javier was reluctant to speak to Miller and at first said he could not remember

what happened, but he nonetheless told Miller that defendant approached him in an

3 On appeal, defendant does not challenge the sufficiency of the evidence for his conviction on count 3 for possessing a slungshot (§ 22210), and he does not claim that the weapon he swung at Javier did not meet the definition of a slungshot. The record amply supports the jury’s verdict that the weapon defendant unlawfully possessed and wielded was a slungshot. (People v. Fannin (2001) 91 Cal.App.4th 1399, 1406 [“a slungshot is a striking weapon consisting of a heavy weight attached to a flexible handle”]; People v. Williams (1929) 100 Cal.App. 149, 151 [adopting dictionary definition of “a slungshot as a small mass of metal or stone fixed on a flexible handle, strap or the like, used as a weapon”].)

10 aggressive way; that defendant swung the slungshot at him; and that he moved away just

in time to avoid being hit. Javier also told Miller that he left the house feeling “shaken

up” and “frightful.”4

Defendant’s substantial evidence challenge essentially asks this court to replace

our view of the record for that of the jury, something we may not do. That no other

witness testified defendant swung a slungshot at Javier is of no moment because, unless

physically impossible, the testimony of one credible witness may constitute substantial

evidence. (Evid. Code, § 411; People v. Elliot (2012) 53 Cal.4th 535, 585.) Moreover,

contrary to the suggestion in defendant’s opening brief, Javier did not “den[y] ever telling

Miller” that defendant swung the slungshot at him. Rather, when asked on direct

examination whether he remembered telling Miller that defendant swung the slungshot at

him, Javier responded, “No, I don’t.” Likewise, when asked if he remembered telling

Miller that he moved away just in time to avoid being hit with the slungshot, Javier

answered, “Like I said, I do not remember.” Finally, that Javier may have been half

asleep and “out of it” when he spoke to Miller were factors for the jury to consider when

deciding whether Miller’s or Javier’s testimony was more credible. To the extent

4 In his briefs, defendant points to the fact that Miller’s testimony about the assault was hearsay. Defendant interposed a hearsay objection, which the trial court overruled, when Miller testified that Javier said he did not want defendant prosecuted. Defendant does not challenge that evidentiary ruling on appeal, and he interposed no additional hearsay objections to Miller’s testimony about his phone conversation with Javier. On appeal, relevant evidence that might otherwise have been excluded as hearsay, had a timely objection been made, is properly considered as supporting the judgment. (People v. Sangani (1994) 22 Cal.App.4th 1120, 1142; Cal. Law Revision Com. com., 29B pt. 1A West’s Ann. Evid. Code (2011 ed.) foll. § 140, p. 27.)

11 Miller’s and Javier’s testimony was in conflict, it was the jury’s job to resolve the conflict

and we may not second-guess the jury’s resolution. (Jackson, supra, 58 Cal.4th at

p. 749.)

Based on the foregoing, we conclude defendant’s conviction for assault with a

deadly weapon is supported by substantial evidence.

B. Defendant Was Not Prejudiced by the Trial Court’s Erroneous Instruction

on Assault with a Deadly Weapon

Defendant argues the trial court erred by instructing the jury with an outdated

version of CALCRIM No. 875 that defined “deadly weapon,” for purposes of assault

with a deadly weapon in violation of section 245, subdivision (a)(1), to include weapons

or objects that are inherently dangerous. The People appear5 to concede the error, but

contend any error was harmless. We conclude the instruction was erroneous but that the

error was harmless beyond a reasonable doubt.

1. Additional Background.

The trial court instructed defendant’s jury with CALCRIM No. 875 for the

elements of assault with a deadly weapon. As relevant here, that instruction defined a

“deadly weapon” as “any object, instrument or weapon that is inherently deadly or

5 The People hedge their concession, arguing the jury did not convict defendant “on the arguably inadequate theory” that the slungshot was an inherently dangerous weapon. (Italics added.)

12 dangerous, or one that is used in such a way that is capable of causing or likely to cause

death or great bodily injury.”6

During closing argument, the prosecutor described the incident as “a dangerous

situation” “involving an angry man who is armed with a weapon.” When discussing the

charge of assault with a deadly weapon, the prosecutor told the jury that the first element

it had to find true beyond a reasonable doubt was that defendant “did an act with a deadly

weapon that, by its nature, would directly and probably result in the application of force.”

The prosecutor argued this element was proven because “[w]e know he swung the

slungshot at Javier.”

Although the prosecutor did not directly address the definition of a deadly

weapon, she told the jury the evidence established that a reasonable person would believe

defendant’s act of swinging the slungshot would directly and probably result in the

application of force because Ernest testified he took the slungshot from the defendant

because he did not want defendant to hit him or Javier. The prosecutor then told the jury,

“You are all reasonable people. No one wants to get hit by a Master lock attached to a

rope that has a thumb thing to hold properly. When it is swung around, this can cause a

lot of pain. It can cause a lot of damage. And if it’s in the right spot, it could kill you.”

6 As the People point out in their brief, defendant did not object to the court instructing the jury with CALCRIM No. 875 or object that the instruction as given was erroneous. Even in the absence of an objection, we may review a claim of instructional error that allegedly affects the defendant’s substantial rights. (§ 1259; People v. Brown (2012) 210 Cal.App.4th 1, 9, fn. 5 (Brown).)

13 Defendant’s attorney did not address the definition of a “deadly weapon” during

her closing argument either. Instead, she argued to the jury that defendant used the rope

with the lock attached to it in his tree-trimming business; that the object was not a

slungshot; and that Ernest and Javier were not very concerned about being hit with the

object.

Finally, during rebuttal, the prosecutor again told the jury “[t]his is a dangerous

situation involving a man who gets angry and uses manufactured weapons.” She also

argued that defense counsel’s suggestion that defendant merely possessed the object as

part of his tree-trimming business was comical, and that no reasonable person could

conclude defendant possessed the object inside the home “for any legitimate purpose.”

2. Analysis.

In Brown, supra, 210 Cal.App.4th 1, the trial court instructed the jury with

CALCRIM No. 875 on the elements of assault with a deadly weapon. (Id. at 6.) As here,

the instruction given in Brown defined a “deadly weapon” as “‘any object, instrument, or

weapon that is inherently deadly or dangerous or one that is used in such a way that it is

capable of causing and likely to cause death or great bodily injury.’” (Id. at p. 8.) On

appeal, the defendant argued that, under Aguilar, supra, 16 Cal.4th 1023, the only viable

theories for assault with a deadly weapon are use of an inherently deadly weapon or use

of a weapon or object in a manner capable and likely to cause great bodily injury.

(Brown, at p. 9.) Because the instruction read to the jury allowed for guilt if the jury

concluded the weapon he used (a BB gun) was inherently dangerous, the defendant

argued it was erroneous. (Ibid.) The Court of Appeal agreed.

14 The People in Brown relied on Aguilar for the proposition that “CALCRIM

No. 875 accurately states the definition of ‘deadly weapon’ set forth in Aguilar, where the

Supreme Court stated, ‘In determining whether an object not inherently deadly or

dangerous is used as such, the trier of fact may consider the nature of the object, the

manner in which it is used, and all other facts relevant to the issue.’ (Aguilar, supra,

16 Cal.4th at p. 1029.)” (Brown, supra, 210 Cal.App.4th at p. 9, fn. omitted.)

The Brown court rejected the People’s reading of Aguilar. “The issue before the

court in Aguilar was whether hands and feet could constitute deadly weapons under

section 245, subdivision (a)(1). Citing People v. Graham (1969) 71 Cal.2d 303

(Graham), the Aguilar court began its discussion by observing, as the court had in

Graham, that there are two categories of deadly weapons: objects or instruments that by

their intrinsic nature are deadly and those that are not necessarily or inevitably deadly,

but can be deadly for purposes of section 245 if used in a particular manner. (Aguilar,

supra, 16 Cal.4th at pp. 1028-1029.) The Graham court made this observation in the

context of former section 211a, where it addressed whether sufficient evidence existed to

support a finding the defendant was guilty of perpetrating a robbery while armed with a

‘dangerous or deadly weapon.’ [Citation.] Addressing a statute that expressly included

‘dangerous or deadly weapon’ within its provisions, the Graham court identified two

categories of ‘dangerous or deadly’ weapons: Those weapons that, because of their

intrinsic nature, were ‘dangerous or deadly’ such as dirks and blackjacks, and those that

were not per se deadly or dangerous but were used in a manner capable of inflicting and

15 likely to inflict death or great bodily injury. (Graham, at pp. 327-328.)” (Brown, supra,

210 Cal.App.4th at pp. 9-10, fn. omitted.)

“In citing Graham for the proposition that deadly weapons fall into those

distinctive categories, the Aguilar court did not consider, much less determine, that

inherently dangerous weapons are either synonymous with, or are to be included as,

deadly weapons under section 245 regardless of the manner in which they are used.

[Citation.] Nor, when the emphasized language is read in context, is the People’s

interpretation of Aguilar a fair reading of the opinion, particularly in light of other

sections of the decision that omit the phrase ‘inherently dangerous weapon’ entirely from

the governing definition. (See Aguilar, supra, 16 Cal.4th at p. 1033 [‘a “deadly” weapon

is one that is used in such a manner as to be capable of producing death or great bodily

injury’ (italics omitted)].) Rather, the court’s invocation of the language in Graham

appears to be simply a reiteration of Graham’s dual categories of deadly weapons, those

that are intrinsically deadly and those that are used in a deadly manner.” (Brown, supra,

210 Cal.App.4th at p. 10, fn. omitted.)

Next, the People argued that, in the context of a charge of assault with a deadly

weapon in violation of section 245, subdivision (a)(1), there is no meaningful difference

between an inherently deadly weapon and an inherently dangerous one. (Brown, supra,

210 Cal.App.4th at p. 11.) The court agreed that in some instances, the difference is

meaningless. “Almost any weapon or instrument that can properly be described as

inherently dangerous will also be inherently deadly; likewise, an item that is not

inherently deadly will often not be inherently dangerous.” (Ibid.) However, the court

16 stated that “in a narrow category of cases, such as one involving, perhaps, a paintball

marker or a slingshot, the distinction could be critical.” (Ibid.)

As an example of a case where the distinction between inherently deadly and

inherently dangerous weapons mattered, the Brown court cited In re Bartholomew D.

(2005) 131 Cal.App.4th 317, in which the appellate court upheld an enhancement under

section 12022, subdivision (b), for personal use of a “‘deadly or dangerous weapon in

the commission of a felony.’” (Bartholomew D., at p. 322.) “In upholding the juvenile

court’s finding the BB gun constituted a ‘deadly or dangerous’ weapon, the

Bartholomew D. court explained the relevant statute uses the words ‘dangerous or

deadly’ disjunctively. Accordingly, the court disregarded Bartholomew’s argument there

was insufficient evidence to find the BB gun a deadly weapon, emphasizing that, under

section 12022, subdivision (b), ‘“‘it is not necessary to show that the weapon is deadly so

long as it can be shown that it is dangerous.’”’ (Id. at p. 322.) The court went on to

conclude substantial evidence supported the finding that the BB gun was dangerous, even

if not deadly, without considering the manner in which it was used.” (Brown, supra, 210

Cal.App.4th at p. 11.)

Therefore, the Brown court held “CALCRIM No. 875 may impermissibly allow a

jury to convict a defendant of assault with a deadly weapon if it finds the weapon

employed was inherently dangerous, even if it rejects the notion that the instrument was

inherently deadly or used in a manner capable of causing and likely to cause death or

great bodily injury.” (Brown, supra, 210 Cal.App.4th at p. 11.) The court concluded by

noting, “[t]hat possibility, however theoretical it may be in most cases, should be

17 obviated by an appropriate modification of the language in CALCRIM No. 875” and

similar deadly weapon instructions. (Id. at p. 11 & fn. 10.)

The Judicial Council promptly responded to Brown by amending CALCRIM

No. 875. Effective February 26, 2013, the definition of “deadly weapon” no longer

includes an inherently “dangerous” weapon and the use notes now cite Brown as

authority for the proper definition. (Judicial Council of Cal., Crim. Jury Instns.

(2013 ed.) CALCRIM No. 875, pp. 598-601.) Although defendant’s trial took place in

December 2013—almost 10 months after the amendment to CALCRIM No. 875 went

into effect—inexplicably the trial court instructed the jury with the February 2012, pre-

Brown version of CALCRIM No. 875.7

There is no dispute that the version of CALCRIM No. 875 read to defendant’s jury

included the erroneous definition of “deadly weapon” disapproved by Brown and

subsequently removed from the instruction. Nonetheless, the People contend the error

was harmless beyond a reasonable doubt because the People’s evidence and theory of the

case was not based on the inherently dangerous nature of the weapon defendant wielded,

so the jury did not find defendant guilty on that erroneous ground. We agree.

7 Trial courts are strongly encouraged to use the “latest edition” of an official jury instruction. (Cal. Rules of Court, rule 2.1050(e).) Therefore, before giving an official instruction to the jury, it behooves the parties and the trial court to ensure it is the latest version adopted by the Judicial Council. (See 2 Cal. Trial Practice: Civil Procedure During Trial (Cont.Ed.Bar 2015) Jury Instructions, § 20.2, pp. 20-4 to 20-5 [advising litigants to “[m]ake sure to check for recent revisions” of official and pattern jury instructions].)

18 In Brown, the appellate court rejected the defendant’s argument that the

instructional error warranted reversal “because there [was] no basis to determine whether

the jury relied on a legally incorrect theory to find him guilty of assault with a deadly

weapon . . . .” (Brown, supra, 210 Cal.App.4th at pp. 11-12.) “Although the general rule

in cases involving a legally inadequate theory ‘has been to reverse the conviction because

the appellate court is “‘unable to determine which of the prosecution’s theories served as

the basis for the jury’s verdict’”’ [citation], even this type of error can, in an appropriate

case, be harmless: ‘If other aspects of the verdict or the evidence leave no reasonable

doubt that the jury made the findings necessary [with respect to the element of the crime

at issue], the erroneous . . . instruction [on that element] was harmless.’ [Citations.] ‘“To

say that an error did not contribute to the verdict is . . . to find that error unimportant in

relation to everything else the jury considered on the issue in question, as revealed in the

record.”’ [Citation.]” (Id. at pp. 12-13.) Because the evidence and arguments of counsel

left no reasonable doubt that the jury found the defendant in Brown guilty based on

theory that he used a BB gun in a manner capable of inflicting and likely to inflict great

bodily harm, and not based on the theory that the BB gun was an inherently dangerous

weapon, the court found the error was harmless beyond a reasonable doubt. (Id. at pp.

13-14.)

So too here. Officer Miller testified that the object he recovered in this case is a

slungshot, which he described as a weighted object attached to a rope or chord that is

used to bludgeon. Miller testified the slungshot in this case could cause great bodily

19 injury or death. He did not opine that a slungshot is an inherently deadly or inherently

dangerous weapon.8

During closing argument, the prosecutor did not argue slungshots in general, or the

item defendant wielded in this case in particular, are inherently dangerous weapons. Nor,

for that matter, did the prosecutor argue a slungshot or the item that defendant possessed

are inherently deadly. Although she twice described the situation as dangerous, she was

referring to the fact that defendant was angry and armed, and not to the weapon itself.

When discussing the object, the prosecutor argued it met the definition of a slungshot and

was not something defendant would legitimately use in his tree-trimming business.

Moreover, the prosecutor told the jury a reasonable person would conclude the object

wielded by defendant would directly and probably result in the application of force. “No

one wants to get hit by a Master lock attached to a rope that has a thumb thing to hold

properly. When it is swung around, that can cause a lot of pain. It can cause a lot of

damage. And if it’s in the right spot, it could kill you.” Like the prosecutor, defense

counsel did not address the definition of a deadly weapon, and she did not argue that the

object defendant possessed was not an inherently deadly or dangerous weapon. In short,

the concept of an inherently dangerous weapon was never discussed.

8 Miller and another officer testified about an object recovered from the same Chino residence on an earlier date. Although that testimony related to count 1, on which the jury returned a not guilty verdict, we note that in the context of count 1, neither officer described slungshots in general, or the item recovered in the earlier incident in particular, as inherently dangerous weapons.

20 Based on the foregoing, we conclude there is no reasonable doubt that the jury

concluded the slungshot defendant wielded in this case was used in a manner capable of

inflicting and likely to inflict great bodily injury, and that the jury did not base its verdict

on the inadequate theory that the slungshot, regardless of how defendant used it, was

inherently dangerous. Therefore, we conclude the instructional error was harmless.

C. The Trial Court Adequately Inquired into Defendant’s Unequivocal Desire

to Be Relieved of Appointed Counsel and Adequately Advised Defendant of the

Consequences and Pitfalls of Representing Himself

Defendant contends the trial court erred by granting his Faretta motion without

first conducting a hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) to

determine whether he unequivocally wished to waive his right to counsel, and without

adequately advising him of the pitfalls of self-representation. We conclude otherwise.

Before sentencing, defendant filed a form with the trial court indicating he wished

to waive his right to appointed counsel and to represent himself for the remainder of the

proceedings. At the hearing on defendant’s request, the trial judge began by informing

defendant “that it is almost always unwise to represent yourself and, in so doing, you

might actually conduct a defense which may aid the prosecutor with regard to these

charges.” When the judge asked defendant, “Do you understand that?,” defendant

answered, “Yes.” The trial judge noted the request was somewhat unusual because the

jury had already rendered its verdicts and defendant was seeking to represent himself

when making a new trial motion and at sentencing, and the judge asked defendant if he

21 was prepared to proceed. Defendant told the judge he was “a layman at law or ignorant

at law,” but that he “could learn to do this.” Defendant then told the judge he tried telling

his appointed attorney that Javier was not the victim in the case and that the incident

involved him trying to protect his mother’s house from a transient named Ralph, but that

it “went right over [his attorney’s] head.”

The prosecutor interrupted defendant, telling the trial judge, “This is getting

dangerously into Marsden and attorney/client privilege information.” The judge then told

defendant that, if he wanted to discuss attorney-client information, the judge would “clear

the courtroom and we can go into those areas.” However, the judge told defendant, “right

now I’m interested in whether or not you want to represent yourself and whether you are

prepared to represent yourself without talking about your attorney.” Defendant

responded he did want to represent himself, but that he also wanted “to hold a Marsden

hearing so I can explain this to you. I have a motion and accusation that I want to talk to

you about.” The judge explained to defendant that a Marsden hearing is conducted when

a defendant wishes “to replace” their attorney of record with another attorney. When the

judge said, “What you want to do is represent yourself,” defendant responded, “Yes.”

The judge then told defendant that Marsden and Faretta hearings “are kind of

different things,” and asked, “Is it your desire to replace your attorney with another

attorney or do you wish to be your own attorney?” Defendant answered,

“I—like I said, I would rather just represent myself.” The judge told defendant there was

no need to conduct a Marsden hearing because there was no need to assess whether

defendant’s appointed attorney should be replaced by another appointed attorney.

22 Defendant responded, “Okay.” The judge then told defendant, “It sounds to me like you

made this decision today. Would you be prepared to be your own attorney in preparing

the necessary motions in anticipation of sentencing?” Defendant answered, “Yes.”

The trial judge then engaged defendant in the following colloquy:

“THE COURT: Let’s see. So you understand your right to an attorney

completely; correct?

“THE DEFENDANT: Yes.

“THE COURT: And you are wishing to give up this right?

“THE COURT: Do you understand you made some representation to me just now

that you have some ignorance of the law, which is understandable. You didn’t go to law

school. But that you feel comfortable and you could learn?

“THE COURT: You understand you will be on your own. I won’t appoint for

you what’s called ‘co-counsel’ to help represent you. [¶] You understand that?

“THE DEFENDANT: Okay.

“THE COURT: All right. You won’t be entitled to any special privileges. In

other words, when we do our motions, which probably won’t be today from what I’m

hearing from you, you need some preparation time.

“THE COURT: But you won’t be entitled to any special privileges. I’m going to

treat you just like an attorney. I’m going to accord you the same respect and I’m going to

23 presume you understand the law just like any attorney who appears before me. And I

can’t give you any special breaks or I can’t advise you on the law. [¶] You understand

that?

“THE DEFENDANT: Okay.”

The trial judge asked defendant if he understood he would be representing himself

against an experienced prosecutor with years of experience, and defendant responded,

“Yes.” The judge then explained to defendant that, because he was in custody during the

trial, he would receive no greater privileges in the jail library than any other inmate, and

that the court had no control over the hours the defendant would be permitted to use the

jail library. When asked if he understood, defendant answered, “Yes.” The judge also

explained to defendant that he would not be able to claim ineffective assistance of

counsel on appeal for purposes of posttrial motions and sentencing during which

defendant represented himself. Defendant told the judge that he understood. The judge

explained to defendant that his self-representation was contingent on his behaving in

court, and that he could be excluded from the proceedings or have his self-represented

status revoked if he acted out of control or disrupted the proceedings. Again, defendant

told the judge he understood.

The judge then addressed the probation report, which recommended a sentence of

nine years eight months, and gave defendant a moment to review the report. When asked

if he had considered possible defenses regarding sentencing, defendant said, “Yeah. I’m

doing that ‘cuz, your Honor, I’m baffled at what went on in this whole trial your Honor.

I am not understanding—I tried to let my attorney—.” The trial judge stopped defendant

24 mid-sentence, telling him not to talk about his attorney. Defendant again explained his

belief that the prosecution’s theory of the case was wrong because Javier was not the

victim, and that he would be moving for a new trial.

The judge then asked defendant a series of questions about his ability to

understand what had been said and his competency to represent himself:

“THE COURT: Tell me how many years of formal education you’ve had

starting—you have finished elementary school?

“THE COURT: Middle school?

“THE COURT: And how many years of high school?

“THE DEFENDANT: Up to the 10th grade.

“THE COURT: English is your first language?

“THE COURT: Have you been treated for any emotional or mental illness?

“THE DEFENDANT: No.

“THE COURT: Are you currently on any medications or drugs or anything?

“THE COURT: Have you had any difficulty understanding any of my questions?

“THE DEFENDANT: No.”

The trial judge then asked defendant to confirm that he wished to represent

himself for purposes of moving for a new trial. Defendant replied, “Yes. My due

25 process, everything was violated, I feel. I mean, I don’t know who else to turn to, your

Honor.” Defendant told the judge that his appointed attorney ignored his assertion that

Javier was not the victim, and that originally he “was going to ask you for a bench trial.”

He then told the judge, “So I don’t know what else to do. I’m—I don’t know. I’m stuck.

I’m stuck between a rock and a hard place, your Honor.” The judge again asked

defendant a series of questions to ascertain whether defendant wished to represent

himself:

“THE COURT: Okay. One thing I need to get perfectly clear, because you said

you don’t know what else to do. I want to be clear that you want to represent yourself—

“THE COURT: —rather than have another attorney help you?

“THE COURT: Because I don’t know what to do—

“THE DEFENDANT: Would that be co-counsel?

“THE COURT: I’m sorry?

“THE COURT: Remember, I told you, you don’t get co-counsel. Either you have

an attorney represent you or you represent yourself. But I want to make sure you

understand you do have that choice. And you are choosing to represent yourself.

“THE DEFENDANT: I represent myself, yes.”

26 Based on defendant’s responses, the judge stated on the record she was satisfied

that defendant wanted to represent himself. The court therefore relieved the public

defender, and defendant was given propria persona status.

2. Applicable Law.

“The United States Supreme Court has construed the federal Constitution’s Sixth

Amendment, which guarantees ‘the assistance of counsel’ to an accused in a criminal

prosecution, to also guarantee a right of self-representation.” (People v. Elliot (2012) 53

Cal.4th 535, 592, citing Faretta, supra, 422 U.S. at p. 834.) “‘A trial court must grant a

defendant’s request for self-representation if the defendant knowingly and intelligently

makes an unequivocal and timely request after having been apprised of its dangers.’

[Citation.]” (People v. Williams (2013) 58 Cal.4th 197, 252-253.)

“‘The court faced with a motion for self-representation should evaluate not only

whether the defendant has stated the motion clearly, but also the defendant’s conduct and

other words. Because the court should draw every reasonable inference against waiver of

the right to counsel, the defendant’s conduct or words reflecting ambivalence about self-

representation may support the court’s decision to deny the defendant’s motion. A

motion for self-representation made in passing anger or frustration, an ambivalent

motion, or one made for the purpose of delay or to frustrate the orderly administration of

justice may be denied.’ [Citation.] Moreover, the Faretta right is forfeited unless the

defendant ‘“articulately and unmistakably”’ demands to proceed in propria persona.

[Citations.]” (People v. Valdez (2004) 32 Cal.4th 73, 98-99 (Valdez).)

27 “‘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.” [Citation.]’

[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.]” (People v. Burgener (2009) 46 Cal.4th 231, 241 (Burgener).)

“On appeal, we examine de novo the whole record—not merely the transcript of

the hearing on the Faretta motion itself—to determine the validity of the defendant’s

waiver of the right to counsel. [Citation.]” (People v. Koontz (2002) 27 Cal.4th 1041,

1070 (Koontz).)

3. The Trial Court Was Not Required to Conduct a Marsden Hearing, and the

Record Demonstrates Defendant Unequivocally Desired to Represent Himself.

Defendant contends the trial court erred by not conducting a Marsden hearing to

determine whether he unequivocally waived his right to representation. According to

defendant, his request to represent himself was equivocal because he continued to address

what he believed to be the flaws in his appointed attorney’s defense, and that the court

erred by not inquiring further whether defendant’s appointed counsel rendered ineffective

assistance of counsel. We are not persuaded.

28 “When a defendant seeks to obtain a new court-appointed counsel on the basis of

inadequate representation, the court must permit him or her to explain the basis of her

contention and to relate specific instances of inadequate performance. The court must

appoint a new attorney if the record clearly shows the current attorney is not providing

adequate representation or that the defendant and counsel have such an irreconcilable

conflict that ineffective representation is likely to result. [Citations.]” (People v.

Rodriguez (2014) 58 Cal.4th 587, 623.)

When the defendant does not seek new counsel, however, and the record

demonstrates he wishes unequivocally to represent himself, the trial court is not required

to conduct a Marsden hearing. (People v. Gallego (1990) 52 Cal.3d 115, 161-162;

People v. Gonzalez (2012) 210 Cal.App.4th 724, 741.) A defendant’s “expressions of

dissatisfaction with his attorney as a reason for [his] decision [to waive his right to

counsel and to represent himself] are insufficient to require the court to inquire whether

he wanted substitute counsel.” (People v. Frierson (1991) 53 Cal.3d 730, 741, citing

People v. Burton (1989) 48 Cal.3d 843, 855 (Burton).) Our Supreme Court has expressly

rejected “the rule that whenever a defendant makes a motion to represent himself on the

basis of dissatisfaction with counsel, the court automatically should inquire [under

Marsden] whether he would like to make a motion for substitution of counsel.

[Citations.]” (Burton, at p. 855.) “[T]he two motions are fundamentally different, one

raising the question of defendant’s competency to waive his right to counsel and the other

raising the question of existing counsel’s competency.” (Ibid.)

29 Here, nothing in the record supports the conclusion that defendant wished the

court to appoint a new attorney to represent him. Instead, the record demonstrates an

unequivocal desire by defendant to waive his right to counsel and to represent himself.

Defendant filed a Faretta form, which stated he wished to waive his right to

counsel and to represent himself. When the trial judge asked defendant if he understood

it was “almost always unwise to represent yourself,” defendant answered, “Yes.” When

defendant tried to tell the judge why he thought his appointed counsel did not present an

adequate defense, the trial judge told defendant he could air his concerns in a closed

hearing but that the court’s immediate concern was finding out if defendant wanted to

represent himself and if he was prepared to do so. Defendant told the judge that he did

wish to represent himself, but said he wanted a Marsden hearing to explain why he no

longer wanted his appointed attorney. The judge told defendant that a Marsden hearing

is conducted only when the defendant wishes to replace his attorney with a new attorney

and that defendant was requesting to represent himself. Defendant told the judge, “like I

said, I would rather just represent myself.”

When asked specifically if defendant understood his right to an attorney and if he

wished to waive that right, defendant responded, “Yes.” When defendant again started to

tell the judge why he felt his attorney did not present an adequate defense, the judge once

more asked defendant if he wished to represent himself and did not wish the court to

appoint a new attorney to represent him. Defendant responded, “I represent myself, yes.”

30 On the record, we conclude defendant “‘“articulately and unmistakably”’”

requested to represent himself.9 (Valdez, supra, 32 Cal.4th at p. 99.) At no time did

defendant say he wanted the court to appoint another attorney to represent him, and his

expressions of displeasure with his attorney did not suggest that he wanted a new one.

The trial court was not required to conduct a Marsden hearing simply because defendant

wanted to air his grievance with appointed counsel.

4. The Trial Court Adequately Advised Defendant of the Pitfalls and

Consequences of Self-Representation.

Defendant argues the Faretta advisements in this case “fell short” of those

recommended by this court in People v. Lopez (1977) 71 Cal.App.3d 568 (Lopez) (Fourth

Dist., Div. Two). We disagree.

As our Supreme Court explained in Koontz, supra, 27 Cal.4th at pp. 1070-1071, in

Lopez this court “enumerated a set of suggested advisements and inquiries designed to

ensure a clear record of a defendant’s knowing and voluntary waiver of counsel. First,

9 As an additional basis for finding his request for self-representation was equivocal, defendant points to the fact that he “did not have the benefit of glasses to see paperwork to assist himself.” Before the Faretta hearing, defendant’s daughter informed the court that she tried unsuccessfully to deliver new glasses to defendant in jail. The court ordered jail officials “to accept the eye glasses . . . so long as the eye glasses comply will all facility guidelines.” When discussing the probation department’s sentencing recommendation—after the trial court had already conducted the Faretta hearing and relieved the public defender—defendant told the court he had not received his new glasses and that he was legally blind. Defendant did not say he could not read the Faretta form he signed and initialed and, in any event, the oral proceedings demonstrate defendant unequivocally wished to represent himself and did not want new counsel.

31 the court recommended the defendant be cautioned (a) that self-representation is ‘almost

always unwise,’ and the defendant may conduct a defense ‘“ultimately to his own

detriment”’ ([Lopez, supra, 71 Cal.App.3d] at p. 572); (b) that the defendant will receive

no special indulgence by the court and is required to follow all the technical rules of

substantive law, criminal procedure and evidence in making motions and objections,

presenting evidence and argument, and conducting voir dire; (c) that the prosecution will

be represented by a trained professional who will give the defendant no quarter on

account of his lack of skill and experience; and (d) that the defendant will receive no

more library privileges than those available to any other self-represented defendant, or

any additional time to prepare. Second, the Lopez court recommended that trial judges

inquire into the defendant’s education and familiarity with legal procedures, suggesting a

psychiatric examination in questionable cases. The Lopez court further suggested

probing the defendant’s understanding of the alternative to self-representation, i.e., the

right to counsel, including court-appointed counsel at no cost to the defendant, and

exploring the nature of the proceedings, potential defenses and potential punishments.

The Lopez court advised warning the defendant that, in the event of misbehavior or

disruption, his or her self-representation may be terminated. Finally, the court noted, the

defendant should be made aware that in spite of his or her best (or worst) efforts, the

defendant cannot afterwards claim inadequacy of representation. (Id. at pp. 572-574.)”

The Supreme Court stressed that “the purpose of the suggested Lopez admonitions

is to ensure a clear record of a knowing and voluntary waiver of counsel, not to create a

threshold of competency to waive counsel. [Citations.]” (Koontz, supra, 27 Cal.4th at

32 p. 1071; see People v. Miranda (2015) 236 Cal.App.4th 978, 986, fn. 3 [Lopez “merely

suggested areas of inquiry by the trial court when considering a Faretta motion”]; People

v. Mellor (1984) 161 Cal.App.3d 32, 37 [Fourth Dist., Div. Two] [“Lopez does not

require any particular inquiries or pronouncements by the trial court”].) In any event, the

trial court’s advisements here closely track those we suggested in Lopez.

The trial judge explained, “it is almost always unwise to represent yourself” and

that defendant might end up helping the prosecutor. The judge told defendant that,

although he was ignorant of the law, defendant would not be afforded “special

privileges”; he would be treated with the same respect as a licensed attorney; he would

get no “special breaks”; and the court would not advise defendant on the law. The judge

also told defendant he would be “going against the prosecutor . . . who has had several

years of experience,” and that “it will likely not be a fair contest.” With respect to access

to the jail law library, the trial judge told defendant he would “receive no greater library

privileges than any other pro per,” and that jail officials, and not the court, had control

over the hours he would be permitted to use the law library.

The trial judge asked defendant about the extent of his formal education; asked if

defendant had ever been treated for emotional or mental illness; and asked if defendant

was under the influence of any medications or drugs during the hearing. The trial judge

explained to defendant that he had a choice whether to represent himself or be

represented by an attorney, and asked if defendant wished to waive his right to counsel.

The trial judge also explained to defendant that the probation department recommended a

sentence of nine years eight months in state prison, and asked if defendant had any

33 defenses he wished to present at sentencing. Defendant told the judge he would be

moving for a new trial based on his assertion that Javier was not the victim. The judge

also explained that, if defendant acted out of control or disrupted the proceedings, the

court could exclude him or revoke his propria persona status. The trial judge told

defendant that he could not claim ineffective assistance of counsel on appeal “based on

the quality of your representation as it exists today forward.” Finally, although not part

of this court’s suggested admonitions in Lopez, the trial judge told defendant he would

not be afforded the assistance of co-counsel.

Notwithstanding that the trial judge’s admonitions comport almost to the letter of

Lopez, defendant argues “the record reflects no meaningful dialogue between the court

and [defendant] regarding his maximum exposure, his rights and responsibilities of

representing himself at sentencing, or the assistance which could have been provided him

had he been represented by counsel to seek reduction in that term through the

presentation of evidence or arguments regarding striking certain priors in the interests of

justice, pursuant to section 1385, or staying certain terms, pursuant to section 654, or a

request for concurrent terms.”

In Burgener, supra, 46 Cal.4th 231, a capital defendant moved to be relieved of

counsel for purposes of sentencing and renewing a motion under section 190.4,

subdivision (e), to modify the verdict from death to life in prison without the possibility

of parole. (Id. at pp. 234, 237, 242.) The Supreme Court stated “the scope of a proper

advisement of the right to counsel depends on the particular facts and circumstances of

the case as well as the stage of the proceedings.” (Id. at p. 242, citing Iowa v. Tovar

34 (2004) 541 U.S. 77, 88.) The court also stated that a proceeding to modify a death

verdict “differs markedly from a trial on the merits, which involves voir dire of potential

jurors, the examination and cross-examination of witnesses, and jury instructions.

[Citation.]” (Burgener, at p. 242.) Finally, the court noted a motion to modify a death

verdict “is based only on evidence that has already been presented to the jury [citation],

and the application in this case had already been briefed.” (Burgener, at p. 242.)

Therefore, the court concluded those circumstances warranted “a less searching or formal

colloquy in response to defendant’s request to represent himself.” (Ibid.)

Although not binding on this court (People v. Linton (2013) 56 Cal.4th 1146,

1182, fn. 8), decisions of the lower federal courts have also held that a trial court’s

inquiry need not be as exhaustive when the defendant wishes to represent him or herself

at sentencing. “In Patterson v. Illinois (1988) 487 U.S. 285, 298, the Supreme Court

adopted a ‘pragmatic approach’ to the issue of Sixth Amendment waiver of counsel,

‘asking what purposes a lawyer can serve at the particular stage of the proceedings.’

Sentencing hearings demand much less specialized knowledge than trials; for instance,

the Federal Rules of Evidence do not apply in sentencing hearings. [Citation.]” (United

States v. Day (8th Cir. 1993) 998 F.2d 622, 626; see United States v. Marks (8th Cir.

1994) 38 F.3d 1009, 1015.) While acknowledging that “sentencing is a critical and often

times complicated part of the criminal process that contains subtleties which may be

beyond the appreciation of the average layperson” (United States v. Salemo

(3d Cir. 1995) 61 F.3d 214, 219, 220 (Salemo), superseded by rule as stated in United

States v. Turner (3rd Cir. 2012) 677 F.3d 570, 578), the Third Circuit has concluded that

35 Faretta warnings given before sentencing “need not be as exhaustive and searching as

similar inquiry before the conclusion of trial.” (Salemo, at p. 219.)

Defendant cites no authority for the proposition that a trial judge conducting a

Faretta hearing before sentencing must advise the defendant that, by waiving his right to

counsel, he will be foregoing the benefits of counsel in seeking a reduced sentence. The

trial judge need not tell the defendant that he may present mitigating evidence; that he

may move to strike priors; that he may argue that the sentence on some counts must be

stayed pursuant to section 654; that he may request concurrent instead of consecutive

sentences; and that by waiving his right to counsel, his ability to successfully do any of

these things will be greatly reduced.

The trial court adequately told defendant the sentence he faced, and that by

waiving his right to counsel he would be going up against an experienced prosecutor

without any of the benefits of being represented by counsel. On this record, we conclude

defendant waived his right to counsel with his eyes open (Burgener, supra, 46 Cal.4th at

p. 241), and that the trial court properly granted his Faretta request.

D. The Trial Court Properly Sentenced Defendant on Count 3 and Did Not

Abuse Its Discretion by Declining to Strike Prior Prison Term Enhancements

Defendant argues the sentence on count 3 had to be stayed pursuant to section 654

or, in the alternative, the sentence should have run concurrently with the sentence on

count 2 instead of consecutively, because he allegedly possessed the slungshot and

committed the assault with a deadly weapon during the same indivisible course of

conduct. He also argues the trial court did not appear to understand its discretion to strike

36 prior prison term enhancements, and we must remand the case for the court to exercise

that discretion. We find no sentencing error.

1. Imposition of the Sentence on Count 3 Did Not Violate Section 654.

Section 654, subdivision (a), provides: “An act or omission that is punishable in

different ways by different provisions of law shall be punished under the provision that

provides for the longest potential term of imprisonment, but in no case shall the act or

omission be punished under more than one provision.” “It is well settled that section 654

protects against multiple punishment, not multiple conviction. [Citation.] The statute

itself literally applies only where such punishment arises out of multiple statutory

violations produced by the ‘same act or omission.’ [Citation.] However, because the

statute is intended to ensure that defendant is punished ‘commensurate with his

culpability’ [citation], its protection has been extended to cases in which there are several

offenses committed during ‘a course of conduct deemed to be indivisible in time.’

[Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.)

“‘“Whether a course of criminal conduct is divisible and therefore gives rise to

more than one act within the meaning of section 654 depends on the intent and objective

of the actor. If all of the offenses were incident to one objective, the defendant may be

punished for any one of such offenses but not for more than one.”’ [Citation.]” (People

v. Capistrano (2014) 59 Cal.4th 830, 885.) “‘It is [the] defendant’s intent and objective,

not temporal proximity of his offenses, which determine whether the transaction is

indivisible.’ [Citation.] ‘“The defendant’s intent and objectives are factual questions for

the trial court; [to permit multiple punishments,] there must be evidence to support [the]

37 finding the defendant formed a separate intent and objective for each offense for which

he was sentenced.”’ [Citation.]” (Id. at p. 886, fn. omitted.) “‘“‘A trial court’s implied

finding that a defendant harbored a separate intent and objective for each offense will be

upheld on appeal if it is supported by substantial evidence.’ [Citation.]” [Citations.]’”

(People v. McKinzie (2012) 54 Cal.4th 1302, 1368, disapproved on another ground in

People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.)

Relying primarily on People v. Bradford (1976) 17 Cal.3d 8 and this court’s

opinion in People v. Ratcliff (1990) 223 Cal.App.3d 1401 (Fourth Dist., Div. Two),

defendant contends his possession of a slungshot was indivisible with the assault with a

deadly weapon and, therefore, punishment on the possession conviction must be stayed

pursuant to section 654. We disagree.

The Court of Appeal in People v. Garcia (2008) 167 Cal.App.4th 1550, 1565, set

forth the principles applicable in this case: “In cases involving firearms and multiple

punishment issues, a section 654, subdivision (a) violation has been held to occur in an

unusual factual scenario. Section 654, subdivision (a) has been held to apply when

fortuitous circumstances place the firearm in the accused’s hands only at the instant of the

commission of another offense. (People v. Bradford (1976) 17 Cal.3d 8, 21-23; People v.

Venegas (1970) 10 Cal.App.3d 814, 818-821.) For example, in Bradford, after robbing a

bank and driving away in a car, a state traffic officer stopped the defendant for speeding.

The defendant then struggled with the officer. The defendant got control of the gun

during the struggle and fired shots at the officer. In concluding section 654 barred

multiple sentencing for the assault and weapons possession, our Supreme Court

38 explained, ‘Defendant’s possession of [the officer’s] revolver was not “antecedent and

separate” from his use of the revolver in assaulting the officer.’ (People v. Bradford,

supra, 17 Cal.3d at p. 22; see People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1411-

1412.) In Venegas, the victim pulled a gun and a struggle ensued with the defendant.

During the struggle, the defendant shot the victim. (People v. Venegas, supra, 10

Cal.App.3d at pp. 818-821.) The Court of Appeal held: ‘Here the evidence shows a

possession only at the time defendant shot [the victim]. Not only was the possession

physically simultaneous, but the possession was incidental to only one objective, namely

to shoot [the victim].’ (Id. at p. 821; see People v. Ratcliff, supra, 223 Cal.App.3d at

p. 1412.) Our colleagues in Division Two of the Fourth Appellate District synthesized

the holdings in Bradford and Venegas thusly, ‘From Bradford and Venegas, we distill the

principle that if the evidence demonstrates at most that fortuitous circumstances put the

firearm in the defendant’s hand only at the instant of committing another offense, section

654 will bar a separate punishment for the possession of the weapon by an ex-felon.’

(People v. Ratcliff, supra, 223 Cal.App.3d at p. 1412; see People v. Jones (2002) 103

Cal.App.4th 1139, 1145.)” (People v. Garcia, supra, 167 Cal.App.4th at p. 1565.)

The record does not support defendant’s assertion that his possession of the

slungshot was merely “incidental” to the assault with a deadly weapon. Although nobody

testified they saw defendant possess the slungshot before the argument started, both

Ernest and Javier testified they saw the slungshot in defendant’s hand when they entered

the room. Moreover, defense counsel elicited testimony that defendant may have used

the object in his tree-trimming business. The most logical inference to be drawn from the

39 evidence is that defendant possessed the slungshot before he started arguing with Javier

and assaulted him, such that his motive and intent for the possession and for the assault

with a deadly weapon were not the same. Therefore, section 654 does not prohibit

separate punishment for the unlawful possession.10 (People v. Wynn (2010) 184

Cal.App.4th 1210, 1218; People v. Jones, supra, 103 Cal.App.4th at p. 1145.)

2. The Record Indicates the Trial Court Understood Its Discretion to Strike

Prior Prison Term Enhancements.

Finally, defendant argues the record does not demonstrate the trial court

understood its discretion under section 1385, subdivision (a), and People v. Superior

Court (Romero) (1996) 13 Cal.4th 497, to strike the enhancement for one or more of his

admitted prior prison terms, so we must remand the matter for the court to exercise that

discretion. We disagree.

“The enhancement language in section 667.5 is mandatory unless the additional

term is stricken,” and “a section 667.5, subdivision (b) prior prison term enhancement

may be stricken pursuant to section 1385, subdivision (a). [Citations.]” (People v.

Garcia, supra, 167 Cal.App.4th at p. 1561.) “[A] court’s failure to dismiss or strike a

10 Defendant’s alternative argument—that the trial court erred by not imposing a concurrent sentence on count 3 pursuant to California Rules of Court, rule 4.425—is based entirely on the premise “that the acts underlying each of the convictions stemmed from an indivisible course of conduct.” Because we conclude the acts are divisible for purposes of section 654, ante, we conclude the trial court correctly imposed a consecutive sentence on count 3. (Cal. Rules of Court, rule 4.425(a)(1).)

40 prior conviction allegation is subject to review under the deferential abuse of discretion

standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).)

“‘Defendants are entitled to sentencing decisions made in the exercise of the

“informed discretion” of the sentencing court. [Citations.] A court which is unaware of

the scope of its discretionary powers can no more exercise that “informed discretion”

than one whose sentence is or may have been based on misinformation regarding a

material aspect of a defendant’s record.’ [Citation.]” (People v. Gutierrez (2014) 58

Cal.4th 1354, 1391.) When the record demonstrates the trial judge was unaware of or

misunderstood her sentencing discretion, the Supreme Court has held that “the

appropriate remedy is to remand for resentencing unless the record ‘clearly indicate[s]’

that the trial court would have reached the same conclusion ‘even if it had been aware

that it had such discretion.’ [Citations.]” (Ibid.)

As an initial matter, defendant concedes he did not move to strike the punishment

for any of his six admitted prior prison terms, and he did not object when the trial court

imposed a sentence enhancement for all six. “[A]ny failure on the part of a defendant to

invite the court to dismiss under section 1385 following Romero waives or forfeits his or

her right to raise the issue on appeal.” (Carmony, supra, 33 Cal.4th at pp. 375-376, citing

People v. Scott (1994) 9 Cal.4th 331, 352-353.)

Even if defendant did not forfeit this claim of error, it is based on a misreading of

the record. In the first amended information, the People alleged defendant committed

counts 2 and 3 while out on bail (§ 12022.1, subd. (b)), and that defendant suffered nine

prior prison terms (§ 667.5, subd. (b)). After the jury rendered its verdicts, defendant

41 admitted to suffering six prior prison terms. After accepting defendant’s admissions, the

trial judge asked the prosecutor, “Are you going to strike the prison priors now or at

sentencing?” The prosecutor responded she would move to strike them at sentencing. At

the close of the sentencing hearing, the prosecutor moved “to strike any remaining

allegations.” The trial court granted the motion, and struck the two out-on-bail

allegations and the three remaining prior prison term allegations. From the foregoing, it

is clear the trial court understood it had discretion to strike prior prison term allegations.

That the court did not state on the record why it declined to exercise its discretion to

strike additional priors is of no moment. “While a court must explain its reasons for

striking a prior (§ 1385, subd. (a); [citation]), no similar requirement applies when a court

declines to strike a prior [citation].” (In re Large (2007) 41 Cal.4th 538, 550.)

Finally, a remand would serve no purpose because, on this record, we conclude the

trial court would not have stricken the enhancement for defendant’s admitted prior prison

terms even if defendant had so requested. During argument on defendant’s motion for

new trial, the prosecutor explained the People acted in the interests of justice by not

alleging defendant suffered a conviction for a strike prior (see §§ 667, subd. (e)(1),

1170.12, subd. (c)(1)), and instead concluded “all of the six prison priors and the charges

were sufficient.” As already noted, at sentencing, the People moved to dismiss the three

prior prison term enhancement allegations and the two out-on-bail enhancement

allegations that defendant did not admit, and the trial court struck them. In light of

defendant’s extensive felony record going back to 1980, and the potential for serious

42 bodily harm or death in this case, we cannot say that failure to strike the enhancement for

one or more of defendant’s prior prison terms was an abuse of discretion.

IV.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J. We concur:

KING J.

MILLER J.