Filed 10/4/13 P. v. Foster CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A134210
v.
PARRISH D. FOSTER,                                                   (Contra Costa County
                                                                     Super. Ct. No. 5-110795-2)
         Defendant and Appellant.


         A jury convicted defendant Parrish D. Foster of assaulting Pak Piu Tam, assaulting
a peace officer, and resisting an executive officer. The jury also found defendant
inflicted great bodily injury upon Tam when assaulting him. Defendant, despite being
―borderline competent‖ to stand trial, was allowed to represent himself without an
attorney. On appeal, defendant asserts the trial court should not have let him proceed in
propria persona. He also asserts substantial evidence does not support the great bodily
injury finding and that his sentence is unauthorized. We remand for resentencing, but
otherwise affirm the judgment.
                              FACTUAL AND PROCEDURAL BACKGROUND
Defendant’s Conduct
         Ken Dea owned a multi-unit building on 23rd Street in Richmond. The rear unit
became vacant in September or October of 2010. In November 2010, Dea learned the
rear unit had become occupied without his permission. On December 5, 2010, Dea, his
wife, and her siblings—including her brother Pak Piu Tam—went to investigate.


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        When they arrived, Dea went to the rear unit. The door appeared locked from the
inside, and Dea could not get in. Defendant eventually opened the door. Dea told
defendant and his girlfriend, who was also inside the unit, to leave. Neither left at that
time.
        About 10 minutes later, however, defendant and his girlfriend exited the
apartment. Defendant and Dea exchanged words. Then, defendant picked up a rock and
threw it, overhand, at Tam from a distance of about one car length. The rock hit Tam in
the head and Tam fell to the ground. He stopped moving. His eyes were closed, and he
did not respond to his name being called.
        Dea‘s wife called 911. Tam was taken away in an ambulance. A CT scan showed
a fractured skull and cerebral hemorrhage.
        Defendant, meanwhile, was arrested several blocks from where the attack
occurred.
        After his arrest, defendant was placed in a Contra Cost County detention facility.
On March 16, 2011, defendant was about 10 minutes late for a lineup of inmates who
wanted to attend a class. Defendant asked Deputy Sheriff Tholborn for permission to
nonetheless attend. Tholborn told defendant he could attend the next session, but needed
to return to his cell for now or face discipline. They argued for a minute or two.
Defendant had clenched fists. Tholborn told defendant to desist or face discipline. After
further argument, Tholborn told defendant to place his hands behind his back. Defendant
did. But as Tholborn grabbed defendant‘s right hand, defendant turned around and flung
his left fist at Tholborn, but missed. The two struggled. Defendant head butted
Tholborn, Tholborn punched defendant in the face, and the struggle did not end until four
deputies tased and subdued defendant. Defendant continued to resist as he was taken
from the scene.




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       Tholborn, after his encounter with defendant, had a cut under his left eye and had
bruised his tailbone from landing on his backside. He saw a doctor and worked light duty
for a week after the incident.
Court Proceedings
       The district attorney filed a felony complaint against defendant on December 8,
2010. The charges, as outlined in an amended information, were assault against Tam
(Pen. Code, § 245, subd. (a)(1))1 with an enhancement for great bodily injury (§ 12022.7,
subd. (a)); assault of a peace officer (§ 245.3); and resisting an executive officer (§ 69).
       At a January 13, 2011 court hearing, defendant‘s appointed counsel declared a
doubt concerning defendant‘s competence to stand trial under section 1368.2 The trial
court suspended proceedings and appointed Dr. Paul Good to evaluate defendant and
report on his condition.
       A hearing to review Dr. Good‘s report occurred on March 15, 2011, but the report
was not yet ready. At this hearing, defendant‘s counsel stated defendant wanted to
represent himself. The trial court issued a further order to Dr. Good ―also instructing
[him] to advise the [c]ourt whether he believes Mr. Foster is capable of self
representation.‖ The trial court delayed consideration of defendant‘s self-representation
request until in receipt of Dr. Good‘s report.
       Dr. Good completed his report on April 7, 2011. He described defendant as a 38-
year-old male with a high school and college education. He noted defendant had once
before, in 2006, been declared incompetent when tried for assaulting his parents.
Presently, however, Dr. Good concluded defendant was ―borderline competent,‖ stating:


       1
         All further statutory references are to the Penal Code unless otherwise indicated.
       2
         Section 1368, subdivision (b), states: ―If counsel informs the court that he or
she believes the defendant is or may be mentally incompetent, the court shall order that
the question of the defendant‘s mental competence is to be determined in a hearing which
is held pursuant to Sections 1368.1 and 1369 . . . .‖


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       ―For the most part, Mr. Foster understood the charges, that they were felonies and
       that he could get prison time. He recalled his adjudication in 2006. He was
       generally aware of the pleas and deal making process. He grasped the meaning of
       evidence, but was unrealistic about his chances of winning a jury trial if he
       represented himself. He is grandiose about his ability to go pro per. His
       suspiciousness of his public defender is not uncommon among defendants. His
       attempt to make an issue over the ‗present ability‘ clause [of the assault statute]
       impresses me as an immature effort to find a loophole. When I confronted him
       about it he seemed to back off somewhat.

       ―Although I see the problems [defense counsel] is having, and I am concerned
       about Mr. Foster‘s participation in his case, I don‘t think he meets the threshold
       for incompetence at this point. While there are some areas in which he expresses
       delusional beliefs, I believe he has enough presence of mind to work with counsel.
       More of a relationship needs to be attempted, and I suggest that [defense counsel]
       set up a joint meeting with Mr. Foster and his mother. The mother can be an ally
       in coaxing him to be more reasonable about his adjudication. She should be asked
       to weigh in on him not pursuing self-representation.

       ―I would also recommend that [defense counsel] ask the mental health team to
       evaluate Mr. Foster. Maybe he would take a prescribed medication on a voluntary
       basis.

       ―Despite some reservation, it is my opinion that Mr. Foster is borderline
       competent to be adjudicated at the present time.‖
Dr. Good expressed no further opinion on whether appellant was competent to represent
himself.
       On April 12, 2011, the trial court, Judge Haynes, held a competency hearing. The
district attorney and defense counsel agreed to forego a jury trial on competency, instead
submitting the matter to the trial court based on Dr. Good‘s report. The trial court found
defendant competent.
       At the same hearing, defendant reiterated his desire to represent himself. The trial
court addressed this issue separately from competency to stand trial. Thus, after finding
defendant competent to stand trial, the trial court moved on to other matters while giving
defendant time to complete a waiver of counsel form. On that form, defendant
acknowledged he was appraised of and understood his constitutional rights, the dangers


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to self-representation, and the court's advisement not to represent himself. Defendant
also noted he was a high school graduate and had attended Contra Costa College and
New Mexico State University. When the trial court recalled defendant‘s case, the trial
court questioned defendant at length about his desire to represent himself. The trial court
then granted defendant‘s request to proceed in propria persona, stating:

       ―Even though I have considered Doctor Good‘s report, I‘m giving great weight to
       the on-the-record conversation I‘ve had with the Defendant here today and also the
       written form that he has filled out.

       ―[¶] . . . [¶]

       ―Now, while Doctor Good may not have thought it was a very good idea for Mr.
       Foster to go Pro Per, I don‘t think it‘s a very good idea either but that‘s not my
       decision, it‘s Mr. Foster‘s decision, and I do believe he does meet the minimum
       standards for competency regarding self representation and I will approve his Pro
       Per as of status today.

       ―I make the following findings, [b]ased on his written declaration and my
       observations of him today, my discussion with him this afternoon, I find that he
       has voluntarily, intelligently and with full understanding as to the dangers and
       disadvantages of self representation chosen to represent himself and to give up his
       right to counsel including court-appointed counsel without charge.‖
       Defendant represented himself from this point forward, through trial and
sentencing.
       On several occasions, the trial court asked defendant to confirm his choice. At the
June 7, 2011 arraignment, defendant confirmed he still wanted to represent himself, and
the trial court collected a second waiver form, and again questioned defendant to satisfy
itself defendant was voluntarily and intelligently waiving his right to counsel. At the start
of trial on August 10, 2011, the trial judge—a different judge, Judge Landau—discussed
with defendant how the trial would proceed and alerted defendant to several issues that
might arise during and after trial because of his choice to remain in propria persona.
Defendant once again affirmed his decision. Finally, after the jury found defendant



                                             5
guilty as charged, Judge Landau cautioned defendant that sentencing was complicated
and asked him if he would like to rethink his decision to self-represent. Defendant
declined.
       On August 31, 2011, the trial court sentenced defendant to an aggregate eight-year
prison term. It imposed a principal term (see § 1170.1 regarding principal and
subordinate terms) of four years for assaulting a peace officer. It then imposed, as a
subordinate consecutive term, one year for the assault on Tam, and consecutive to that, an
additional and full three-year term for the great bodily injury enhancement related to
Tam‘s assault. Punishment for resisting an officer was stayed.
       Defendant filed a notice of appeal on October 20, 2011.
                                        DISCUSSION
Self-Representation
       Our Supreme Court has recently affirmed ―[d]efendants in criminal cases have a
federal constitutional right to represent themselves.‖ (People v. Johnson (2012)
53 Cal.4th 519, 523 (Johnson), citing Faretta v. California (1975) 422 U.S. 806
(Faretta).)
       ― ‗In the wake of Faretta‘s strong constitutional statement, California courts
tended to view the federal self-representation right as absolute, assuming a valid waiver
of counsel.‘ [Citation.] This view was strengthened by the later decision in Godinez v.
Moran (1993) 509 U.S. 389 . . . (Godinez.) In Godinez, the defendant, found competent
to stand trial, sought and was allowed to waive counsel and plead guilty. The high court
held that he was properly permitted to do so. It rejected the argument that federal law
required a higher standard of competence for waiving counsel or pleading guilty than is
required to stand trial. [Citation.] California courts, including this one, as well as courts
in other jurisdictions, generally interpreted Faretta and Godinez as prohibiting states
from imposing a higher standard of competency for self-representation than the standard
of competency to stand trial.‖ (Johnson, supra, 53 Cal.4th at pp. 526–527.)

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       ―In Indiana v. Edwards (2008) 554 U.S. 164 . . . (Edwards), however, the United
States Supreme Court held that states may, but need not, deny self-representation to
defendants who, although competent to stand trial, lack the mental health or capacity to
represent themselves at trial—persons the court referred to as ‗gray-area defendants.‘ (Id.
at p. 174.)‖ (Johnson, supra, 53 Cal.4th at pp. 523, 527.) ― ‗The court in Edwards did
not hold . . . that due process mandates a higher standard of mental competence for self-
representation than for trial with counsel. The Edwards court held only that states may,
without running afoul of Faretta, impose a higher standard . . . .‘ ‖ (Id. at p. 527, quoting
People v. Taylor (2009) 47 Cal.4th 850, 877–878 (Taylor).)
       In Taylor, the court had concluded: ― ‗Edwards did not alter the principle that the
federal constitution is not violated when a trial court permits a mentally ill defendant to
represent himself at trial, even if he lacks the mental capacity to conduct the trial
proceedings himself, if he is competent to stand trial and his waiver of counsel is
voluntary, knowing and intelligent.‘ [Citation.] Edwards thus does not support a claim
of federal constitutional error in a case . . . in which defendant‘s request to represent
himself was granted.‖ (Taylor, supra, 47 Cal.4th at p. 878; see also Johnson, supra,
53 Cal.4th at p. 527.)
       Johnson presented the reverse scenario, in which the trial court denied self-
representation. (Johnson, supra, 53 Cal.4th at p. 525.) On appeal, the defendant
contended the trial court‘s denial was error. Our high court disagreed. Although
Edwards did not mandate a higher standard of mental competence for self-representation
than for standing trial, it allowed state trial courts to deny self-representation to ―gray-
area‖ defendants, an invitation the Supreme Court accepted on behalf of California.
(Johnson, at p. 528.) Following Edwards, the heightened competency standard ―trial
courts considering exercising their discretion to deny self-representation should apply is
simply whether the defendant suffers from a severe mental illness to the point where he
or she cannot carry out the basic tasks needed to present the defense without the help of

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counsel.‖ (Id. at p. 530.) ―Trial courts must apply this standard cautiously,‖ however, as
―defendants still generally have a Sixth Amendment right to represent themselves‖ that
―may not be denied lightly.‖ (Id. at p. 531.)
       As a result of Edwards and Johnson, California trial courts may deny a defendant
pro per status if the court believes he or she is incompetent to represent himself at trial.
But that is a different question from whether a trial court is required to deny self
representation, and if so, whether a failure to do so deprives defendant of a fair trial. As
already noted, there is no ―federal constitutional error‖ in allowing a defendant to
represent himself if that defendant is, as here, found competent to stand trial. (Johnson,
supra, 53 Cal.4th at p. 527.)
       And Johnson, applying Edwards, does not address whether or under what
circumstances a California trial court must, as opposed to may, apply a heightened, state-
law test of competence to a defendant‘s request for self-representation. Rather, Johnson
and Edwards simply ― ‗permit[] judges to take realistic account of the particular
defendant‘s mental capacities by asking whether a defendant who seeks to conduct his
own defense at trial is mentally competent to do so.‘ ‖ (Johnson, supra, 53 Cal.4th at
p. 527, quoting Edwards, supra, 554 U.S. at p. 177.) In fact, under Johnson, ―[a] trial
court need not routinely inquire into the mental competence of a defendant seeking self-
representation. It needs to do so only if it is considering denying self-representation due
to doubts about the defendant‘s mental competence.‖ (Johnson, at p. 530, italics added.)
If that is the case, ―it may order a psychological or psychiatric examination to inquire into
that question.‖ (Ibid., first italics added.) ―To minimize the risk of improperly denying
self-representation to a competent defendant, ‗trial courts should be cautious about
making an incompetence finding without benefit of an expert evaluation, though the
judge‘s own observations of the defendant‘s in-court behavior will also provide key
support for an incompetence finding and should be expressly placed on the record.‘ ‖ (Id.
at pp. 530–531, italics added.)

                                                8
       Even assuming Johnson‘s heightened competency standard applies to this case—
in which the trial court granted, not denied, self-representation—we still ―must defer
largely to the trial court‘s discretion‖ in application of that standard and act cautiously to
protect the right to seek self representation. (Johnson, supra, 53 Cal.4th at p. 531.) ―The
trial court‘s determination regarding a defendant‘s competence must be upheld if
supported by substantial evidence. ‖ (Ibid.) Trial judges ― ‗will often prove best able to
make more fine-tuned mental capacity decisions, tailored to the individualized
circumstances of a particular defendant.‘ ‖ (Id. at p. 532.)
       We find no error here. Although the trial court did not, in the end, obtain the
separate analysis it had requested from Dr. Good of defendant‘s competence to represent
himself, the trial court nonetheless, and correctly, viewed competence to self-represent as
a distinct matter from competence to stand trial. This is shown by the court‘s very
request for the additional analysis and its separate consideration of the two competency
issues at the April 12, 2011 hearing. The trial court could have asked for further
elaboration by Dr. Good as to his opinion on defendant‘s competency to represent
himself; the law, however, does not require it. (Johnson, supra, 53 Cal.4th at p. 530 [trial
court ―may‖ order an analysis if it is considering denial of the right to self represent].)
Meanwhile, Dr. Good‘s report concluded despite there being ―some areas in which
[defendant] expresses delusional beliefs‖ (that is, grandiose or illogical beliefs about the
law and his chances for success at trial), defendant did not meet ―the threshold for
incompetency,‖ at least to stand trial. While the report stated defendant was previously
diagnosed as bipolar in 2006, the report did not establish defendant was currently
exhibiting the effects of this disorder or some other psychiatric condition. Judge Haynes
recognized Dr. Good‘s belief that self representation was a bad idea, and agreed with
Dr. Good on this point, but correctly focused on defendant‘s competence, not the wisdom
of self representation. (See Godinez v. Moran, supra, 509 U.S. at p. 399 [―competence
that is required of a defendant seeking to waive his right to counsel is the competence to

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waive the right, not the competence to represent himself‖].) Both Judges Haynes and
Landau, two separate judges, repeatedly discussed the perils of self-representation with
defendant, and defendant appears to have understood these discussions while making it
unequivocally clear he wanted to represent himself despite the perils.
       Defendant points to several incidents during trial he claims shows he was not
competent to self-represent, but these incidents in fact show him to be poorly trained in
the law, not mentally incompetent. His request, for instance, to reopen his opening
statement so he could tell the jury of purported educational experiences that exposed him
to the law was a rational attempt to bolster his credibility as an advocate, even if such
bolstering was not permitted under evidentiary rules. (See People v. Koontz (2002)
27 Cal.4th 1041, 1073 [―delusional‖ claims boasting of education not sufficient evidence
of incompetence]; People v. Butler (2009) 47 Cal.4th 814, 824 [― ‗ ― ‗technical legal
knowledge‘ is irrelevant to the court‘s assessment of the defendant‘s knowing exercise of
the right to defend himself‘ ‖ ‘ ‖].) His stubborn insistence on an untenable interpretation
of the law of assault again represents a lack of legal training or understanding. Dr. Good
viewed it not as a mental defect, but as ―an immature effort to find a loophole‖ from
which defendant seemed to back off from when confronted by the doctor. (See Godinez
v. Moran, supra, 509 U.S. at p. 400 [―a criminal defendant‘s ability to represent himself
has no bearing upon his competence to choose self-representation‖], italics omitted;
People v. Koontz, supra, 27 Cal.4th at p. 1073 [―a proclivity to boast or exaggerate, a
tendency to digress in argument, a shaky grasp of the legal concept of relevancy, even a
certain tangentiality in speech patterns does not necessarily mean that a defendant lacks a
rational and factual understanding of the proceedings, the basic criterion for
competency‖].)
       Defendant may have handled his representation poorly, but we will not second-
guess the decisions, supported by substantial evidence, of two different judges that
defendant was competent to represent himself. (See Edwards, supra, 554 U.S. at p. 177

                                             10
[a ―trial judge . . . will often prove best able to make more fine-tuned mental capacity
decisions, tailored to the individual circumstances of a particular defendant‖].)
Sufficiency of Evidence to Support Great Bodily Harm Enhancement
       The jury found defendant inflicted great bodily injury against Tam while
assaulting him, a finding that enhanced defendant‘s punishment under section 12022.7,
subdivision (a). That subdivision provides: ―Any person who personally inflicts great
bodily injury on any person other than an accomplice in the commission of a felony or
attempted felony shall be punished by an additional and consecutive term of
imprisonment in the state prison for three years.‖ (§ 12022.7, subd. (a).)
       Defendant asserts there was insufficient evidence to support the jury‘s finding.
Indeed, ―[w]hether great bodily injury occurred is a question of fact, and we review a
jury‘s finding of great bodily injury under the substantial-evidence standard.‖ (People v.
Le (2006) 137 Cal.App.4th 54, 59.) To apply this standard, we ―must review the whole
record in the light most favorable to the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.‖ (People v. Johnson (1980) 26 Cal.3d 557, 578.)
       ―Great bodily injury is defined as ‗a significant or substantial physical injury.‘ ‖
(People v. Meneses (2011) 193 Cal.App.4th 1087, 1090, quoting § 12202.7, subd. (f).) A
― ‗significant or substantial physical injury‘ need not meet any particular standard for
severity or duration, but need only be ‗a substantial injury beyond that inherent in the
offense itself.‘ ‖ (People v. Le, supra, 137 Cal.App.4th at p. 59, quoting People v.
Escobar (1992) 3 Cal.4th 740, 746–747.) Great bodily injury can include loss of
consciousness (People v. Beltran (2000) 82 Cal.App.4th 693, 696) or the breaking of
bones (In re Cruse (2003) 110 Cal.App.4th 1495, 1498 [―[w]hen her jaw was broken, she
suffered great bodily injury within the meaning of section 12022.7, subdivision (f)‖];
People v. Kent (1979) 96 Cal.App.3d 130, 136 [breaking of hand]). The evidence amply

                                             11
shows defendant hit Tam with a rock, rendering him unconscious and seriously fracturing
his skull, both constituting great bodily injury.
         Sentencing
         The trial court enhanced defendant‘s subordinate term—the one-year term for
assaulting Tam—with a full three-year consecutive term for the great bodily injury
enhancement under section 12022.7, subdivision (a). Both defendant and the Attorney
General agree this was error. Section 1170.1, which governs consecutive sentencing,
provides: ―The subordinate term for each consecutive offense shall consist of one-third
of the middle term of imprisonment prescribed for each other felony conviction for which
a consecutive term of imprisonment is imposed, and shall include one-third of the term
imposed for any specific enhancements applicable to those subordinate offenses.‖
(§ 1170.1, subd. (a)., italics added; see also § 1170.11 [section 12202.7 enhancement is a
―specific enhancement‖].) Thus, if enhancing a subordinate term, the trial court could
only add one year, not three, for the three-year enhancement set forth in section 12022.7,
subdivision (a).
         We shall remand for resentencing so the trial court may exercise its discretion
properly. (See People v. Rodriguez (2009) 47 Cal.4th 501, 509 [―Remand will give the
trial court an opportunity to restructure its sentencing choices in light of our conclusion
. . . .‖].)
                                        DISPOSITION
         The matter is remanded for resentencing in accord with this decision. In all other
respects, the judgment is affirmed.




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                                 _________________________
                                 Banke, J.


We concur:


_________________________
Margulies, Acting P. J.


_________________________
Dondero, J.




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