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Name: People v. Fox
Case #: D063169
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 03/05/2014

Trial court’s misadvice regarding nature of charge and whether conviction would be a strike did not render defendant’s waiver of counsel invalid. Fox was convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and vandalism for offenses committed against his ex-girlfriend. At trial, during a break in the prosecution’s direct examination of the victim, the trial court granted Fox’s request to represent himself. On appeal he claimed his waiver of counsel was invalid because, at a pretrial hearing, the court misadvised him regarding the assault charge. Specifically, the trial court erroneously agreed with Fox’s statement that the assault charge contained no allegation of deadly weapon use, stating that Fox had been charged with assault by means of force likely to inflict great bodily injury, and suggested that a section 245, subdivision (a) conviction was not a strike. Held: Affirmed. A trial court’s misstatements may result in an invalid waiver of the right to counsel. Here, however, Fox validly waived his right to counsel despite the trial court’s misstatements because the record as a whole demonstrated that Fox understood the risks of self-representation and that his waiver was knowing, intelligent, and voluntary. (People v. Burgener (2009) 46 Cal.4th 231). Fox received sufficient information regarding the accusation to correct the court’s inaccurate statements. His attorney gave him a copy of the accusatory pleading, a copy of the preliminary hearing transcript, and he was arraigned on the information—all of this data identified the charge as assault with a deadly weapon, which is a strike (Pen. Code, § 1192.7, subd. (c)(31)). The trial court’s misstatements were made during a pretrial hearing and did not directly relate to the dangers of self-representation, as to which Fox was sufficiently advised. Instead, the misstatement pertained to a collateral consequence of a conviction and Fox would not have been entitled to any admonishment on this subject. No evidence reflects Fox’s decision to waive counsel related to the misstatements.