The opinion
Filed 3/5/14
CERTIFIED FOR PARTIAL PUBLICATION1
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063169
Plaintiff and Respondent,
v. (Super. Ct. No. SCD240156)
JAMES JOSEPH FOX,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Melinda J.
Lasater, Judge. Affirmed.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, William M. Wood and
Scott Charles Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
1 Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of part III.B.
I.
INTRODUCTION
The People charged James Joseph Fox with assault with a deadly weapon (Pen.
Code, § 245, subd. (a)(1))2 (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 In the unpublished portion of this opinion, we reject Fox's contention that the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
2 All subsequent statutory references are to the Penal Code, unless otherwise
specified.
2
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.
3
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 (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
4
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[3] 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
3 Former section 245, subdivision (a)(1) included both assault with a deadly weapon
and assault with force likely to produce great bodily injury. (§ 245, subd. (a)(1), as
amended by Stats. 2011, ch. 15, § 298 ["Any person who commits an assault upon the
person of another with a deadly weapon or instrument other than a firearm or by any
means of force likely to produce great bodily injury shall be punished . . . "].)
In August 2011, the Legislature deleted from subdivision (a)(1) the phrase "or by
any means of force likely to produce great bodily injury" following the word "firearm"
and added a new subdivision (a)(4) to section 245 that defined the offense of assault by
force likely to produce great bodily injury. (Stats. 2011, ch. 183, § 1.)
5
violation of 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."4 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.
4 (See People v. Lopez (1977) 71 Cal.App.3d 568, 570 (Lopez) ["explor[ing] the
responsibilities of the trial court in making an adequate record that a criminal defendant
'voluntarily and intelligently' elects to represent himself"].)
6
"[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.5 The form
states, "The defendant wishes to exercise the right to self-representation without the help
of an attorney." It lists "245 A-1" and "594 misdemeanor" as the charged offenses. The
form also contains checkmarks 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 rules 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.
5 While filling out the form in court, Fox stated, "I used the portion of the
complaint . . . to send letters, because I don't have any paper. So that's why I don't have
copies."
7
After receiving the signed Lopez form from Fox, the court held a Faretta6 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)(1)[,]
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 rules 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
6 (See Faretta v. California (1975) 422 U.S. 806, 807 (Faretta) [concluding a
criminal defendant has a "constitutional right to proceed without counsel when he
voluntarily and intelligently elects to do so"].)
8
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
9
prosecutor the court's belief that a unanimity instruction7 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. [¶] [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).
7 A unanimity instruction informs the jury that it may not find the defendant guilty
unless it unanimously agrees that the defendant has committed the same criminal act.
(See CALCRIM No. 3500.)
10
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 [sic] 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. [Citation.] 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.]"
11
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."8 Fox then stated,
erroneously, "they are not alleging a deadly weapon," to which the trial court incorrectly
8 It is undisputed that assault with a deadly weapon (count 1) (§ 245, subd. (a)(1)) is
a strike offense. (§ 1192.7, subd. (c)(31) [serious felony for purposes of the three strikes
law includes "assault with a deadly weapon . . . in violation of Section 245"].) It is also
undisputed that assault with force likely to produce great bodily injury is not, by itself, a
strike offense. (See, e.g., People v. Feyrer (2010) 48 Cal.4th 426, 442, fn. 8.) "When
'the additional element of personal infliction' of great bodily injury is found present,
however [citation], then for purposes of the Three Strikes law, the offense of assault by
means of force likely to produce great bodily injury constitutes a serious felony . . . ."
(Ibid.)
12
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 (["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
[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
13
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.9 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
9 Defense counsel stated that Fox had "the complaint." As noted in the text, both
the complaint and the information charge Fox with assault with a deadly weapon.
14
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.)10 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 had he had pled guilty to the charged offense. (See People v.
Bernal (1994) 22 Cal.App.4th 1455, 1457 [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
10 Fox acknowledges that the "the trial court . . . g[a]ve extensive warnings and
inquired of [him] regarding the risks and dangers of self-representation."
15
pt.III.A.1.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
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 who defense
counsel had indicated she did not intend to call.11 Moreover, during the jury instruction
conference, after the trial court expressly told Fox that count 1 might be a strike
offense,12 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
11 At the hearing, Fox stated, "So I'm ready to relieve her now. Because I want to
question this witness for sure. [¶] I also want to call other witnesses that are on the
witness list . . . that she's not going to call."
12 Fox is correct that the trial court was mistaken in suggesting at the jury instruction
conference that a conviction on count 1 was not, as charged, a strike offense. (§ 1192.7,
subd. (c)(31) [serious felony for purposes of the three strikes law includes "assault with a
deadly weapon . . . in violation of Section 245"].) However, any misstatements by the
court at the jury instruction conference could not have affected Fox's prior decision to
waive his right to counsel. (See United States v. Erskine (9th Cir. 2004) 355 F.3d 1161,
1170 (Erskine) [whether a defendant has validly waived his right to counsel is determined
by an examination of the defendant's state of mind at the time he waived the right to
counsel]).)
16
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"13 (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
[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
13 Fox notes that there are several California cases in which courts have held that
" 'Where a defendant's plea is "induced by misrepresentations of a fundamental nature"
such as a bargain which is beyond the power of the trial court, a judgment based upon the
plea must be reversed. [Citations.]' " (People v. Hollins (1993)15 Cal.App.4th 567, 574,
quoting People v. Coleman (1977) 72 Cal.App.3d 287, 292, italics added; see also In re
Moser (1993) 6 Cal.4th 342, 352 ["a defendant . . . is entitled to relief based upon a trial
court's misadvisement only if the defendant establishes that he . . . would not have
entered the plea of guilty had the trial court given a proper advisement"].) Fox contends
that the same principle should apply in the context of a waiver of the right to counsel.
17
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 (United States 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,14 unlike in Erskine, which involved "a
14 In People v. Conners (2008) 168 Cal.App.4th 443, 455-456, the court noted that
California case law is not uniform with respect to whether a trial court must ensure that a
defendant knows the possible penalties for the charged offenses before permitting a
defendant to exercise his right to self-representation:
"We are aware some court of appeal cases have suggested that, to
deem a Faretta waiver knowing and intelligent, the trial court must
or should ensure the defendant understands the possible penalties, as
well as the nature of the charges and the dangers of self-
representation. (See People v. Sullivan (2007) 151 Cal.App.4th 524,
545; People v. Noriega (1997) 59 Cal.App.4th 311, 319.) On the
other hand, one case has expressly held there is no requirement to
advise a defendant seeking to represent himself of the possible penal
18
revelation that quintupled the stakes of self-representation" (Erskine, supra, 355 F.3d at
p. 1164), 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
Fox claims that the trial court erred in denying him probation and in sentencing
him to the upper term. We review both contentions pursuant to the abuse of discretion
standard of review. (See, e.g., People v. Bradley (2012) 208 Cal.App.4th 64, 89 [a trial
court's denial of probation is reviewed for abuse of discretion]; People v. Delgado (2013)
consequences of conviction. (People v. Harbolt (1988) 206
Cal.App.3d 140, 149–151.)"
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214 Cal.App.4th 914, 919 [a trial court's imposition of an upper term sentence is
reviewed for an abuse of discretion].)
1. Procedural background
Prior to sentencing, the People filed a statement in aggravation and defense
counsel filed a sentencing memorandum. In addition, Fox personally wrote a letter to the
court and the probation officer prepared both a report and a supplemental report.
At sentencing, after hearing argument from defense counsel, the prosecutor, and
Fox, the trial court denied probation and imposed an upper term sentence on count 1. In
imposing this sentence, the court stated that Fox had "three things going against [him],"
including drug addiction, a narcissistic personality, and an inability to take advantage of
opportunities that he had been afforded to improve himself. The court further stated, "I
don't think that you qualify for an exceptional circumstance [warranting a grant of
probation] because it is presumptively state prison, but the bottom line is even if that law
wasn't there, I would still sentence you to state prison, and I would do the upper term.
You have just had too many chances, and you haven't gotten it."
With respect to the imposition of an upper term, the trial court stated that several
factors supported an upper term on count 1, including that Fox had been afforded
multiple opportunities to overcome his drug problem but had been unable to do so, and
that Fox's conduct had "endangered not just [the victim], but also the entire community."
The court also noted that Fox had suffered numerous adult convictions, that the
convictions had been of increasing seriousness, and that Fox's prior performance on
probation had been unsatisfactory. The court stated, "I think you're a danger to society."
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2. Application
a. The trial court did not abuse its discretion in denying Fox probation
The trial court clearly did not abuse its discretion in denying Fox probation. To
begin with, as Fox acknowledges, he was statutorily presumptively ineligible for
probation because, among other reasons, he had previously suffered more than one prior
felony conviction. (§ 1203, subd. (e)(4).) There are numerous other reasons supporting
the trial court's denial of probation, as well. Fox has a lengthy criminal record, having
suffered 11 convictions dating back to 1977. (Cal. Rules of Court, rule 4.414(b)(1).)15
Further, Fox previously violated probation on several occasions. (Rule 4.414(b)(2).) Fox
also has a long-standing drug problem, and had relapsed around the time of the charged
offenses. (Rule 4.414(b)(4).) Moreover, the circumstances of the charged offense
supported a denial of probation, including that Fox inflicted serious emotional injury on
the victim and also used a weapon. (Rule 4.414(a)(2) & (a)(4).)
Fox's contentions to the contrary are not persuasive. Fox maintains that his "long-
term drug addiction" demonstrates that the trial court abused its discretion in failing to
find that his case was an unusual one in which probation should be granted, despite his
presumptive ineligibility. The trial court could reasonably have found that Fox had been
unable to control his addiction,16 and that his long-standing drug problem was not a
circumstance that rebutted his presumptive ineligibility for probation. We are also
15 All subsequent rule references are to the California Rules of Court.
16 Fox acknowledges in his brief that "it is true as the trial court indicated that [Fox]
had relapsed and was using drugs at the time of the instant offense."
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unpersuaded by Fox's contention that the trial court abused its discretion in failing to
grant probation on the ground that the circumstances of his commission of the assault
with a deadly weapon in this case were "less serious" than other instances of the same
crime. Fox's conduct endangered the lives of a large number of people, including both
himself and the victim. Similarly unpersuasive is Fox's contention that the fact that he
did not use "a weapon in the traditional sense" supports a grant of probation. Finally, we
reject Fox's contention that an examination of "facts relat[ed] to the defendant," under
rule 4.414(b) demonstrates that the trial court abused its discretion in denying probation.
As discussed above, Fox has a lengthy criminal record, which includes both prior violent
conduct and several unsuccessful grants of probation.
Accordingly, we conclude that the trial court did not abuse its discretion in
denying Fox probation.
b. The trial court did not abuse its discretion in sentencing Fox to an
upper term on count 1
In sentencing a defendant pursuant to section 1170, subdivision (b) of the
Determinate Sentencing Law, a trial court may select any one of the three available
statutory prison terms. "The court shall select the term which, in the court's discretion,
best serves the interests of justice." (§ 1170, subd. (b).) Although the court is required to
state the reasons for its choice on the record (id., subd. (c)), and may be guided by a
consideration of aggravating and mitigating circumstances (id., subd. (b)), it is not
required to weigh such factors, or to cite specific facts in support of its sentencing choice.
(People v. Sandoval (2007) 41 Cal.4th 825, 847.)
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As noted above, the trial court stated that in the court's view, there were several
factors that supported imposing the upper term, including Fox's long-standing inability to
control his drug problem, the fact that Fox had endangered the lives of numerous people
in his commission of count 1, and Fox's lengthy criminal record. These reasons amply
support the trial court's exercise of discretion in selecting an upper term sentence on
count 1.
In arguing to the contrary, Fox contends, "For all the same reasons that the trial
court abused its discretion by denying [Fox] probation it also abuse[d] its discretion by
sentencing him to the upper term." Fox's contentions that the trial court abused its
discretion in sentencing him to the upper term fail to persuade us for the same reasons
that they failed with respect to his claim concerning the trial court's denial of probation.
Accordingly, we conclude that the trial court did not abuse its discretion in
sentencing Fox to an upper term on count 1.
IV.
DISPOSITION
The judgment is affirmed.
AARON, J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.
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