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 In the unpublished portion of this opinion, we reject Fox's contention that the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.)"
                                               19
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."

                                             20
       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."
                                              21
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.)


                                             22
       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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