California Court of Appeal, Fourth District, First Division
[CERTIFIED FOR PARTIAL PUBLICATION]
APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed. (Super. Ct. No. SCD240156).
[Copyrighted Material Omitted]
[168 Cal.Rptr.3d 616] 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.
The People charged James Joseph Fox with assault with a deadly weapon (Pen.Code, § 245, subd. (a)(1))  (count 1) and misdemeanor vandalism (§ 594, subds.(a) & (b)(2)(A) (count 2). At a recess during the prosecutor's direct examination of the victim, the trial court granted Fox's request to represent himself for the remainder of the trial. The jury found Fox guilty on both counts. The trial court sentenced Fox to the upper term of four years in prison on count 1, and sentenced him to time served on count 2.
On appeal, Fox contends that he did not knowingly, intelligently, and voluntarily exercise his right to self-representation because the trial court incorrectly advised him that count 1 was not a strike offense. In the published portion of this opinion, we reject this claim. In the unpublished portion of this opinion, we reject Fox's contention that the trial court abused its discretion in denying probation, and in sentencing him to the upper term. We reject these claims and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The People's evidence
The victim, Coleen Grisso-Limas, began dating Fox in April 2011. On March 27, 2012, Fox contacted Grisso-Limas about the return of an electric
comb that she had borrowed from him. Fox was adamant that Grisso-Limas return the comb and threatened to break all of the windows in Grisso-Limas's house if she failed to return it. Grisso-Limas agreed to return the comb and arranged to meet Fox at a gas station. Grisso-Limas wanted to meet in a public place because Fox sounded extremely upset.
Fox arrived at the gas station in a blue Toyota convertible. Grisso-Limas was driving a red pickup truck. As Fox pulled his car close to the red pickup truck, Grisso-Limas opened her window a couple of inches and pushed the comb out of the window. Grisso-Limas kept the doors to her car locked because she was afraid of Fox. Fox got out of his car and began yelling expletives at her. Fox started walking back to his car and then picked up a rock and threw it at Grisso-Limas's truck, breaking the rear driver's side window. Grisso-Limas began to drive off at a high rate of speed because she was afraid.
Fox followed Grisso-Limas. He drove close behind her truck, yelling at her. Fox threw another rock at her truck. Several [168 Cal.Rptr.3d 617] vehicles pulled over in response to the chase, which was taking place in a residential area near a school. At one point, Fox passed Grisso-Limas's truck, made a u-turn in the street, and then drove straight at the truck. Although Fox turned his car at the last minute, his car struck the front driver's side of the truck.
After the collision, Fox got out of his car and started to approach Grisso-Limas's truck. Grisso-Limas again drove away, and Fox got back into his car and followed her. Fox bumped the truck twice on the driver's side. At one point, when Grisso-Limas became stuck in traffic, Fox got out of his car, approached her truck, and started to reach through the truck's broken window in an attempt to unlock the door. As he did this, Grisso-Limas started to drive forward, and Fox fell off the truck.
As the incident was unfolding, Grisso-Limas and two eyewitnesses called 911. Police officers arrived at the scene after Fox had fallen from the truck.
B. Defense evidence
The defense elicited evidence that Fox had attempted to avoid the collision between his car and the victim's truck. Grisso-Limas told a defense investigator that she had overreacted during the incident. Grisso-Limas's
that Fox and his mother had spent a lot of time with each other, and that
they used methamphetamine together.
A. Fox validly waived his right to counsel
Fox contends that the trial court violated his Sixth Amendment right to counsel. Specifically, Fox maintains that he did not knowingly, intelligently, and voluntarily exercise his right to self-representation because the trial court misadvised him that count 1 was not a strike offense. On appeal, we independently examine the entire record to determine whether Fox's waiver of his right to counsel was valid. (See People v. Burgener (2009) 46 Cal.4th 231, 241, 92 Cal.Rptr.3d 883, 206 P.3d 420 ( Burgener ).)
1. Factual and procedural background
a. The trial court's comments during a pretrial hearing
Three days prior to the start of trial, defense counsel informed the court that Fox had made statements to counsel indicating that Fox believed he was being denied his right to represent himself. The court held a hearing for the purpose of determining whether Fox was requesting that the trial court appoint substitute defense counsel or whether Fox was seeking to represent himself. During the hearing, Fox expressly and unequivocally ...