Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. H33958
McGuiness, P.J.
Defendant James Delphia Williams was charged with first degree residential burglary while armed with a firearm (Pen. Code, §§ 459, 12022, subd. (a) ), felony assault with a pellet gun as a deadly weapon (§ 245, subd. (a)(1)), felony assault with a metal pipe as a deadly weapon (§ 245, subd. (a)(1), and two counts of attempted murder while armed with a firearm (§§ 187, subd. (a), 664, 12022, subd. (a)). A jury acquitted defendant of the attempted murder charges, but convicted him of first degree burglary while armed with a firearm, felony assault with a pipe, and misdemeanor assault as a lesser-included offense of assault with a pellet gun. The trial court sentenced defendant to a total term of eight years six months, consisting of an upper term of six years for burglary, as the principal offense, to be served consecutively to terms of one year for the arming allegation enhancement, a subordinate term of one year for the felony assault, and a six-month jail term for the misdemeanor assault.
All further unspecified statutory references are to the Penal Code.
Defendant seeks dismissal on the ground that there was insufficient evidence to support the burglary and assault convictions. Alternatively, he seeks reversal and a new trial on various grounds, including the abridgement of his right to represent himself, inadequate jury instructions, and sentencing errors. We conclude the matter should be remanded for resentencing on the burglary conviction pursuant to Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856 (Cunningham). In all other respects, we affirm.
In his opening brief, defendant challenged the imposition of the upper term on his burglary conviction pursuant to Blakely. After the filing of his reply brief, the United States Supreme Court decided Cunningham. In response to our request, the parties submitted supplement letter briefs discussing the effect of Cunningham.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and Freida Rae Williams (Williams) were married in 1966 and had two children together. After 25 years of marriage, the parties separated in 1990 and divorced in October 1991. Although defendant had initially remained in the former marital house, he later moved out and relocated to southern California. Williams was ultimately awarded title to the house. In late 1991, Williams and Billy Holland moved into the house. In 1995, Williams added Holland, by then her fiancé, as a joint tenant on the deed.
About six years later, in 2001, defendant learned of the change in title on the former marital house. He was upset because if Williams died before Holland, the house would belong to Holland and defendant’s children would lose any interest in the house that they would otherwise have acquired by inheritance. Defendant called Williams on the telephone to discuss the children’s inheritance and the house. Williams did not know what defendant was talking about, she refused to talk to him, and hung up on him after telling him not to call her. Defendant pursued the issue of the title transfer with his adult children. His daughter told him that she did not care about the house, but defendant was very upset at that time.
In September 2002, defendant disguised himself as a delivery person and went to the former marital house. Holland answered the door but did not recognize defendant as Williams’ ex-husband. Defendant indicated he had a package or flowers for Williams, but Holland told him that Williams was not at home. Defendant insisted on coming into the house, which he did for a few minutes and then he left.
Three months later, on December 3, 2002, defendant again went to the former marital house, which gave rise to the current criminal charges. Defendant drove from southern California and, at about 8 p.m., parked his car about 100 yards away from the former marital house. Defendant rang the doorbell, and Williams responded by asking who it was. Defendant replied that he was a neighbor, Allen, and he had a package that had been misdelivered for Holland and Williams. Williams did not know anyone named Allen and because she did not open the door at night, she asked Holland to open the door. When Holland opened the door, defendant immediately sprayed him with pepper spray, and rushed through the door into the house. Holland, whose eyes were blurry from the spray, saw something in defendant’s hands so he grabbed defendant’s wrists. Holland later realized that defendant had a loaded pellet gun in one hand and pepper spray canister in his other hand. A few seconds later, Williams recognized defendant, screamed at him, “Get out of my house. Get off of Billy. Get out of here;” and hit him on his left shoulder with her fists. As Holland held defendant’s arms up in the air, Holland thought Williams said defendant had a gun. When Williams hit defendant, he got “off balance,” and the gun flew out of his hand. Defendant fell to the floor, and Holland fell on top of him. Holland saw the gun fall to the floor. Holland yelled to Williams to pick up the gun and call 911, which she did. At some point while the men were struggling on the floor, the pepper spray canister fell and Holland saw defendant “as he was reaching for” or “pull[ing] out something that looked like a pipe.” Defendant dropped the pipe after Holland either twisted defendant’s hand or hit him over the head with a cider bottle. After hitting defendant with a cider bottle, Holland grabbed both of defendant’s hands and held him until the police arrived about five or six minutes after Williams had called 911.
Holland testified that as defendant rushed into the house, defendant had in one of his hands “the gun,” and in the other hand “the pipe with the red handle on it” that he thought he had seen. From what Holland “underst[oo]d, afterwards, the red handle that [he] thought was the pipe with the red handle . . . was the pepper spray” canister.
Williams testified that she did not see defendant’s hands as he rushed into the house. But, as the men fell to the floor, she “heard something fall out. Billy hollered out, ‘He has a gun. Call 911,’ or “Grab the gun. Call 911.” Williams grabbed the object that had fallen, which was the pellet gun, and she took it to the back of the house, where she put it behind a pillow on a sofa. She called 911 on a cordless phone, and while speaking with the 911 operator, she returned to the front of the house where the men were still struggling.
Holland thought that the pipe he saw had a red handle, but the metal pipe recovered by the police did not have such a handle, rather it had white tape on the end as a handle.
After arresting defendant, the police found on the floor a spray canister of either mace or pepper spray, and a metal pipe. Williams gave the officers the pellet gun, which was loaded with 8 pellets and a CO2 air cartridge; the police did not determine if the safety was on or off. Defendant’s pockets contained a five shot .38 caliber revolver without a safety, loaded with four bullets; a small knife; a lighter; a micro cassette portable tape recorder; two nylon ropes; and extra ammunition for the pellet gun. The police also found on the floor a plastic bag that defendant had brought with him. Some of the bag’s contents had fallen on the floor. The bag contained, among other things, precut rope fastened into slipknots with duct tape on the ends, scissors, rubber gloves, a Priority Mail envelope with Williams’ name on it, duct tape, and two notes handwritten by defendant. One note was captioned “Have Fun !!!,” and listed a number of phrases, including: “Get Diary,” “Get Video Tapes and/or pictures of her escapades (Tell her police will get, if not),” “Get security code (be misleading),” “Use tape to break a rear or side window (openable),” “Get cash ($$) only,” “Empty Dresser Drawers in Master BR,” “Get Money Order(s).” “Take everything with you,” “*Tape - used & remaining,” “gloves,” “plastic bags,” “money orders.” The second note contained writing on both sides. One side read: “Billy J.—Frieda Pay for the destruction of a Family OR Give him the wealth of the family.” (Emphasis in original.)
Defendant did not testify at the trial. As part of the prosecution’s case, the jury was shown a videotape of defendant’s statement to the police. After he was read and waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), defendant acknowledged he was being interviewed because he “was in the home of another who has legal title to it, and [he] was in their home and there was a confrontation, and it turned physical and quite frankly, on [his] person were items that were dangerous.” Defendant admitted he had a revolver and an air gun to protect himself because he believed his ex-wife had an automatic pistol. Although “maybe the gun itself, [he would] never . . . pull out no matter what,” the air gun he could use to get Holland’s attention. Defendant had the revolver strictly to use to escape if necessary and for self-defense. Although he stated he did not and would not even pull out the air gun because Holland could get hurt, he later indicated he had the air gun to intimidate Holland and Williams because it looked like a real gun. The only problem with the air gun was that if you hit someone in the wrong place, they could be hurt but “[he] would consider -- [he] could shoot” someone in the leg, chest, or stomach, but not in the face. Defendant also admitted that in his other pockets, he had pepper spray, preset rope bindings, something to cut the rope to release Holland and Williams if he had to constrain them, and a pellet gun air cartridge. He also had a cassette recorder in his shirt pocket to record what Williams and Holland said so that they could not later deny it. When asked if he also had “a billy club” and “knife,” defendant replied that he had “forgotten about that. Yeah.” He did not further comment on those items. Defendant also admitted that he had taken into the house a little plastic shopping bag, containing items he thought he might need, including additional rope, things to clean up when he was through, and tape in case somebody was “shootin[g] their mouth off,” or “makin[g] too much noise.” When asked whether he had written a plan concerning what he would do when he got to the house, defendant initially replied no, but then indicated he thought the police were referring to two or three pieces of paper regarding “things to do,” which notes were written about two or three months earlier and were in the plastic bag. After being read and shown the “Have Fun!!!” note, defendant indicated he would rather not comment as to whether the items listed indicated “a plan,” he could not explain why some of the items were on the list, and the note was about different things, which was quite common for him. The note that read, “Pay for the destruction of a family,” referred to cash, competition, or goods, and the phrase “or give [him] the wealth of the family,” referred to the house.
Defendant said he wanted to talk to Williams and Holland about the transfer of title. He had previously been unsuccessful in discussing the issue with Williams, and he admitted that he had previously gone to the house pretending to deliver flowers or something, but Williams was not home and he just left. When defendant returned to the house in December, he intended to get the attention of Williams and Holland by confronting and threatening them, including constraining them if necessary. Defendant said he did not want to hurt anyone so all he had out was the pepper spray and he really only wanted to catch them off guard so that he could talk to them. On reflection, defendant did not think he had a very good plan, “it was really absurd.” He thought the pepper spray would subdue Holland and Williams, they would sit down and talk, he would restrain them if necessary, and they would come to an understanding and he would cut them loose if he had restrained them. He wanted an explanation for the title transfer. If Williams and Holland were not willing to share that information, then they would be in a position to be frightened and think defendant might be crazy enough to harm them. When later questioned about his comment of having Williams and Holland believe he would harm them, defendant stated he had misspoken when he said that, but he did want Williams and Holland to know that the situation was serious. Although he hoped for the best, he prepared for the worst, but “[his] thought process was rotten.” When defendant got to the house, he did not say a word, and Holland did not say a word, and Williams started screaming something. Defendant sprayed Holland but it did not have the intended effect of subduing Holland. Holland lunged at defendant but defendant just held out the spray and did not “try to reach for any weapons, unless you call the spray a weapon.” Before this incident, neither Williams nor Holland had ever threatened defendant, and he had never threatened them. Defendant denied he intended to shoot Williams and Holland, and indicated that if he had intended to kill them, he would have had his revolver out and ready and there would have been no need for a pellet gun.
DISCUSSION
I. Sufficiency of the Evidence
Defendant argues that the evidence supporting his burglary conviction, and “at a minimum,” his assault convictions, is insufficient to establish those offenses. In evaluating this contention, “we do not determine the facts ourselves. Rather, we ‘examine the whole record in the light most favorable to the judgment to determine whether it disclosed substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1129.)
Burglary is committed when a person enters an inhabited dwelling house with the intent to commit a theft or a felony. (Pen. Code, §§ 459, 460.) “[I]n showing that a defendant entered the premises with felonious intent, the People can rely upon reasonable inferences drawn ‘from all of the facts and circumstances disclosed by the evidence,’ since felonious intent is rarely proved through direct evidence.” (In re Anthony M. (1981) 116 Cal.App.3d 491, 501, quoting People v. Matson (1974) 13 Cal.3d 35, 41.)
As instructed, the jury was required to find defendant guilty of burglary if they found he had entered the victims’ house with the intent to commit either murder or assault with a deadly weapon. Defendant argues that the jurors rejected claims of specific intent to murder because they acquitted him of attempted murder. He then argues that despite evidence of his planning and arming himself, the inference of specific intent or even a concrete contingent intent to commit a felony assault with a deadly weapon at the time of entry “remains speculative.”
Defendant’s arguments ignore that “the crime of burglary does not require that a . . . felony be actually committed. The forcible entry with the felonious intent to commit [a felony] is sufficient even though, after the entry, the burglar voluntarily abandons his unlawful purpose. [Citations.] The crime of burglary was completed and consummated the minute the defendant entered the . . . residence with intent to commit” either murder or assault with a deadly weapon. (People v. Stewart (1952) 113 Cal.App.2d 687, 691.) Contrary to defendant’s contentions, arming himself with a loaded pellet gun, a loaded revolver, and a pipe, and his statement to the police that he intended to use the weapons if necessary “substantiates a finding that he entered the house with the requisite intent” to either commit murder or a felonious assault on Holland and Williams. (People v. Sears (1965) 62 Cal.2d 737, 745-746, overruled on another ground in People v Cahill (1993) 5 Cal.4th 478, 509-510, fn. 17; see People v. Smith (1978) 78 Cal.App.3d 698, 704.)
Defendant’s challenge to the sufficiency of the evidence to support the assault convictions is similarly not persuasive. Contrary to defendant’s contention, “where there is a clear intent to commit violence accompanied by acts which if not interrupted will be followed by personal injury, the violence is commenced and the assault is complete.” (People v. Yslas (1865) 27 Cal. 630, 633; see People v. Colantuono (1994) 7 Cal.4th 206, 219.) The evidence was sufficient to reasonably support a finding by the jury that upon entering the house, defendant had the pepper spray in one hand and the pellet gun in his other hand, and that during the struggle with Holland, defendant was forced to drop those items, and after the men were on the ground, defendant was able to grab a pipe from his jacket but he was also forced to drop that weapon after Holland either twisted his arm or hit him on the head with a cider bottle.
Additionally, there is no merit to defendant’s contention that he did not have the present ability to commit assault because the evidence was insufficient to prove he had wielded either the pellet gun or the metal pipe. “It is . . . unreasonable to assert that an assailant has not the present ability to commit a violent injury upon the person of another by means of a sword or dagger because it is necessary to first withdraw the weapon from a scabbard which hangs by his side.” (People v. Simpson (1933) 134 Cal.App. 646, 651-652.) Once the defendant had “ ‘attained the means and location to strike immediately’ ” he had the “ ‘ “present ability to injure” ’ ” the victims. (People v. Raviart (2001) 93 Cal.App.4th 258, 267.) That his use of the weapons was thwarted by Holland does not “ ‘ “negate this present ability.” ’ [Citation.]” (Ibid.) Further, whether the pipe was capable of causing great bodily injury was a question to be resolved by the jury. (People v. Clifton (1957) 148 Cal.App.2d 276, 279 [court, as trier of fact, “acted within its province in inferring that the tire iron was a deadly instrument and was a means that could if applied produce great bodily harm”].)
We are not persuaded by defendant ’s argument that the jury could not have reasonably found him guilty of the assault offenses because of internal inconsistencies in the testimony regarding whether or not he actually wielded the pellet gun or the metal pipe. “Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by a [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the [trier of fact] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]” (People v. Huston (1943) 21 Cal.2d 690, 693, overruled on another ground in People v. Burton (1961) 55 Cal.2d 328, 352; see People v. Lewis (2001) 26 Cal.4th 334, 361.) “Because the circumstances reasonably justify the jury’s findings, we may not reverse the judgment simply because the circumstances might also reasonably be reconciled with defendant’s alternate theories. [Citations.]” (People v. Farnam (2002) 28 Cal.4th 107, 144.)
II. Defendant’s Requests to Represent Himself
A. Relevant Facts
After defendant’s arrest on December 3, 2002, the district attorney filed both a complaint and an amended complaint, charging defendant with attempted robbery, burglary, and assault with a deadly weapon, and related arming enhancements.
On April 30, 2003, as part of a plea bargain, defendant agreed to plead no contest to burglary and admit to an arming enhancement. At that time defendant was represented by retained counsel. On the date set for sentencing, the court granted retained counsel’s motion to withdraw and the matter was continued to allow defendant to secure new counsel. When defendant was unable to secure new counsel, the court appointed Patrick O’Rourke to represent him in August 2003. About three months later, the court permitted defendant to withdraw his plea. On November 19, 2003, the district attorney filed a third amended complaint adding two counts of attempted murder (Holland and Williams) with arming clauses. At defendant’s arraignment on the third amended complaint, the court informed defendant that he was entitled to a different, more experienced attorney because he was now facing a maximum sentence of life in prison. Defendant stated he wanted to continue with O’Rourke.
Nevertheless, at the December 30, 2003, preliminary examination, defendant was represented by new court appointed counsel Darryl Billups. After defendant was held to answer, the district attorney filed an information charging defendant with first degree residential burglary, attempted second degree robbery against Holland, assault with a metal pipe and a pellet gun against Holland, attempted murder against Holland and Williams, and arming allegations. At his arraignment on the information on December 16, 2003, defendant was represented by court-appointed counsel David Byron.
On February 9, 2004, defendant appeared before the Honorable Robert K. Kurtz, at which time defendant requested permission to dismiss Byron and represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta). The court asked defendant to complete a form petition to proceed in propria persona. Defendant filled in some spaces in his own handwriting, and initialed the form. However, defendant did not fill in or otherwise mark the spaces indicating that he was aware that the crimes charged were general or specific intent crimes, or the minimum and maximum sentences for the charged crimes. Additionally, the form did not indicate how any possible sentence would be affected in the event the use of a weapon or an armed allegation was pleaded and proved against him. After defendant returned the form to the court, the court proceeded to discuss with defendant his right to counsel, the advantages of having counsel represent him, and the risks of self-representation. The court specifically elicited that the then 57-year-old defendant was aware that his maximum sentence exposure was “approximately 23 years . . . to life.” At the end of the colloquy, the court granted defendant’s Faretta motion. Defendant proceeded to represent himself for the next year.
On March 28, 2005, the day scheduled for trial, the matter appeared before the Honorable Reginald Saunders. The court conducted an extensive colloquy covering almost 50 pages of transcript regarding defendant’s decision to represent himself. The court was particularly concerned that defendant’s written petition to appear in propria persona was filled out by defendant himself, and most importantly in the court’s view, the form did not indicate whether defendant was aware of the minimum and maximum punishments that he faced if convicted of the charges. The court asked the trial prosecutor to briefly tell defendant his sentence exposure if he was convicted. The prosecutor asked for “five minutes” to prepare, but the court indicated that “some of it you don’t have to prepare,” to which the prosecutor said, “Okay.” The court then stated that it wanted to make sure that defendant understood, when he filled out the petition that day in court, that on the crime of attempted first degree murder with premeditation and deliberation, his exposure was life without parole. When asked if defendant understand that meant “the rest of his life without parole in prison,” the defendant replied, “I do now. I did not understand that. I do now.” The prosecutor noted that since defendant had been representing himself she had told him “on a number of occasions” that if he were convicted, he would be going to prison for the rest of his life, but then she agreed with the court that “first degree attempted murder is life without parole.” The court proceeded to tell the defendant his maximum sentence exposure on the other charged offenses, and that if convicted of those counts, there would be future consequences. The court told defendant that it was up to him to decide if his educational background was adequate to permit him to defend himself from any exposure to prison for the rest of his life without the possibility of parole. When the defendant again indicated that he had never been told before that he was facing life without parole, the court asked defendant what he wanted to do. Defendant replied, “I had planned to defend myself for very good reason, and that’s a very heavy consequence, life without parole. My understanding was it was seven years to life, but there was parole possibility. That’s a very heavy consideration, not one that I’m prepared to make [a] snap judgment about right now. My inclination is to continue on my own.” When the court indicated that its only concern was that defendant understand and be aware of his sentence exposure to life in prison, the defendant replied, “I appreciate and understand what you’re saying. . . . I will say for the record that’s the first I heard of it. My initial inclination is to continue. It’s something I would give some very serious thought to.”
Concededly, defendant was not facing exposure of a life term without parole. If convicted of the attempted murder counts, the defendant was facing a sentence of five, seven, or nine years to life on each count, and if the jury found true that the attempted murder was willful, deliberate, and premeditated, defendant was facing a sentence of life with the possibility of parole after seven years on each count. (Pen. Code, § 664, subd. (a); 3046, subd. (a)(1).)
The court continued to advise defendant of the disadvantages of self-representation. During the colloquy, the court noted that it wanted the defendant to be aware that he was facing a “very large exposure” if convicted. However, the court told defendant that he had the absolute right to represent himself, and if he wanted to continue to represent himself he could do so. At that point, defendant explained: “[T]he reason that I’m representing myself is because I cannot get counsel to stay with me and represent my interest. They appear[ ] not to represent my interest, so that is why I’m representing myself. If I’m denied access, if I’m denied the ability to use [the] pro per phone, and to get help -- advisory counsel [had] been denied. I don’t have advice. I need assistance. I cannot do much of anything if I can’t get assistance from the outside through the pro per phone. I can’t function. I can’t present a defense.” The court responded by suggesting that defendant should be represented by counsel, but the court did not want to dissuade defendant from representing himself. The court wanted defendant to be aware of the limitations he faced, and that if defendant was saying that he could not represent himself appropriately, then the court needed to get somebody to represent him. In reply, the defendant indicated that if the sheriff’s deputies would comply with their rules, “then we’ll be fine.” But, if there is no compliance and he did not have time to get documents then he would not “have a chance.” But, if the court was willing to provide time, then he could defend himself because he was the only one prepared to do so.
At this point in the proceeding, the district attorney and defendant attempted to clarify the circumstances pertaining to the previous appointments of counsel assigned to represent defendant. Defendant asserted that he had dismissed his last court appointed counsel David Byron and if the court were to reassign Byron, defendant would have to represent himself even if he were facing the death penalty.
The court again advised defendant of the benefits of having an attorney represent him. During the court’s review of the amendments to the information, it again noted that by amending the information to include premeditation and deliberation, that such an amendment meant “life without parole.” Once again, defendant asserted, “That’s the first I heard of that.” Defendant indicated that he understood the charges in the amended information and the penalties if he were found guilty. When asked if he thought he could do a better job than a lawyer, defendant replied, “The last attorney did -- the answer is absolutely, unequivocally yes.” And, when asked if he believed he was competent to represent himself, defendant replied, “I certainly hope so.” The court responded: “I certainly hope so, too. I’ll tell you one last thing before I ask you for your waiver, and that is, any loved one of mine who was [in] your situation, I would give to that person the following advice: Under no circumstances represent yourself, . . . be represented by a lawyer. Having said that, it’s still absolutely your right to make your choice. I’m going to ask you, do you specifically give up your right to have a lawyer represent you in this case?”
Before answering the question, defendant asked to clarify whether his decision was irrevocable. The court initially stated that defendant’s reliance on his ability to be assigned counsel in the future was “misplaced,” because the court did not believe defendant had the right to change his mind and elect at some future undesignated time that he wanted to be represented. The court then qualified its statement by noting that a self-represented defendant did not necessarily have the right to terminate his status and request appoint of counsel at any stage, but that certain factors would have to be evaluated. The court further indicated that it was not determining that defendant’s earlier Faretta waiver was inadequate, but that out of an abundance of caution, the court had reviewed the file to make sure that if there was any later review, an appellate court would find that defendant had made a knowing, intelligent waiver, understanding all the risks and his sentence exposure.
When the court again asked defendant if he specifically gave up his right to counsel, defendant responded by recounting his experiences with Byron. The court told defendant that if he were assigned counsel, the lawyer was going to manage the case, and if defendant wanted counsel, the court would ask for the assignment of a qualified attorney “to defend a case where the exposure is life without parole,” other than Byron. Defendant responded, “It is very clear to me that I lack the understanding and knowledge of law. That is very clear to me. I’m also deadly afraid [of] being stuck with an attorney. You say he will control my life. If I have an attorney not prepared to defend me, . . . may I have an opportunity to communicate with this counsel before a final determination is made?”
The court agreed that before defendant made his decision regarding representation, defendant could speak with a qualified attorney. The court asked the prosecutor to provide the prospective attorney with copies of the court file, police report and preliminary hearing transcript so that the attorney could consider what would be involved in preparing the case for trial. The court then told the defendant that after he talked to counsel, the court would ask him if he wanted to have counsel appointed or if he wanted to continue representing himself. Defendant replied, “I think that is quite fair. Thank you.” The court indicated that the prospective new counsel would be told what the charges were and the sentence exposure. Defendant also confirmed that he would have no problem if the court appointed Billups, who had previously represented him at the preliminary examination. After a break in the proceedings, the court informed the defendant that he would be meeting with Joanne Kingston, who had almost 30 years experience in criminal defense work. Once Kingston arrived in court, the court explained how the matter would proceed: “This wasn’t my intention, to give you the opportunity to talk to a lawyer and make your decision, but I’m persuaded after talking to Ms. Kingston, [Michael A.] Rosenblum [defendant’s court-appointed investigator], and the District Attorney that [it] would be in your best interest, and I’m going to do that. So Ms. Kingston told me she’s going to make arrangements to visit you tomorrow at Santa Rita. . . . Mr. Rosenblum provided all the discovery that he has. Ms. Kingston’s gone through the court file, and she has copies of transcripts . . . . [After] she talks to you . . . we are all going to return again, . . . [and] you’re going to tell me what you are going to do.” The court again informed defendant that if he decided to be represented by counsel, then Kingston would be appointed and defendant would no longer be representing himself or managing the case. The court directed defendant to explore “all of this with” Kingston. When the court asked defendant if he had any questions, defendant replied, “You[r] choice is intimately fair to me.” The court concluded its comments by noting that it had done everything that it was able to help defendant in his decision. Defendant acknowledged, “I think we have a good plan,” and Kingston acknowledged she was “ready to go forward.” The court again asked if defendant had any questions, and he indicated he had “no questions whatsoever.”
Two days later, on March 30, 2005, the parties appeared in court before Judge Saunders. At that time, the court noted Kingston had indicated that it was defendant’s intention to proceed to trial represented by her. Defendant was granted time to speak with Kingston off the record before he agreed to her appointment. After defendant spoke with Kingston, the court asked defendant for an answer to its question as to whether it was his intention to proceed with counsel and forego representing himself, defendant replied, “Yes, Your Honor.” Defendant indicated that Kingston was “very susceptible to the conversations she and I have agreed to. With those considerations, we’re fine.” Thereafter, Kingston represented defendant through the jury trial presided over by Judge Brenda Harbin-Forte.
The court initially scheduled sentencing within 30 days of the verdict, but later agreed to postpone sentencing at the request of defendant and his counsel so that the court would have time to adjudicate a motion for a new trial and motion to dismiss pursuant to section 1385. Defense counsel indicated that defendant had prepared “points and authorities” in support of a section 1385 motion to dismiss, which counsel requested permission to file. The court indicated that since defendant was represented by counsel, it would accept the document as counsel’s motion to dismiss. Additionally, the court granted defense counsel’s request for time to submit a motion for a new trial. After a discussion regarding the potential issues and need for transcripts in support of the motion for a new trial, the court directed defense counsel to file the necessary motion papers by September 28. The court indicated that on September 30, the court would set briefing schedules for both the motion for a new trial and the section 1385 motion to dismiss.
On September 28, defense counsel wrote to the court asking for a postponement of the September 30 proceeding. The court denied the request. On September 30, the case appeared on the court’s calendar. Defense counsel was not present and consequently, defendant was not brought into the courtroom. The court noted that although defense counsel had been ordered to file a motion for a new trial by September 28, no motion had been filed. The court then proceeded to set dates for the briefing of defendant’s section 1385 motion.
On October 6, 2005, defendant wrote to the court requesting permission to represent himself. In his letter, defendant noted that the prosecution had been ordered to file its Points and Authorities in opposition to “a § 1385 Dismissal and/or Motion for Re-Trial,” by October 12, 2005. Defendant asked the court to schedule a hearing on October 12, or as soon thereafter as possible, at which time defendant could file a formal petition to proceed in propria persona, and file his supplemental points and authorities in support of his section 1385 dismissal motion; and the court could set dates for the motions and sentencing. On October 11, the prosecutor filed its response to defendant’s section 1385 motion.
At the October 14 proceeding, defendant requested permission to represent himself. Defense counsel indicated that she was prepared to file a reply to the prosecutor’s opposition to the section 1385 motion. Counsel had, however, reviewed all the designated issues that could be raised in a motion for a new trial, decided that all of the issues could be raised on appeal, and therefore, it was not necessary to file a motion for a new trial. Counsel also indicated that she had explained to defendant her reasons for not filing a motion for a new trial. Defendant had apparently prepared “another motion” that he wanted the court to read, but counsel did not support it.
Defendant then set forth his reasons for his request to represent himself. Defendant indicated that neither he nor his counsel was present in court on September 30. He did not know whether his counsel had filed a motion for a new trial. Defendant, however, had been prepared to submit supplemental section 1385 points and authorities on September 30, and he still wanted to do so. According to defendant, he was not represented on September 30, and he had “a motion” that he had wished to file, and he still wanted to file that “motion,” and his absence from the courtroom had “frustrate[d] the fairness of [that] proceeding.”
The court indicated that the only issue defendant was to address was the reasons why he wanted to represent himself at this point in the proceedings. Defendant replied that his counsel was not communicating well about things that were going to be happening, and counsel had not represented him in terms of the things he wanted to accomplish in this trial. “We have reached the point where we are at a [section] 1385 motion, and the comments that I hear from her do not represent my state of mind and the things that I think that should be done, and I would prefer to represent myself. It isn’t a matter of preference, it is a matter of either I represent myself or I won’t be represented at all. I have not been represented to this point from my point of view since that trial.” In response to the court’s questions, defendant indicated that he thought that as a matter of law, the evidence showed that he was not guilty and that the acts he committed did not constitute the charged crimes, and that there were deficiencies in counsel’s performance that had contributed to the jury’s guilty verdict.
The court denied defendant’s request to represent himself because it was untimely. The court was satisfied that defendant had received a high quality of representation throughout his trial. The court summarized its review of the case file on the issue of representation, and then noted: “So there has been a proclivity to substitute counsel in the past, to go pro per and then to get counsel again and a proclivity to file motions at about the time we get to a sentencing stage in the case, including your motion to withdraw the plea . . . [of] guilty to the burglary charge that you ultimately got convicted of by the jury. [¶] The reasons for the request appear to be just that . . . your counsel is not doing what you want counsel to do, even though she appears to be exercising judgment, good judgment, and offering you alternatives and pointing out to you that the issues that you wish to raise can be raised on appeal. [¶] Your letter indicates that you wish to have the matter continued, that you want to file supplemental points and authorities in support of your [section] 1385 motion, that you want to set a date for motions and for sentencing, if needed. The sentencing date is already scheduled for next week. [¶] I . . . will tell you that I am not inclined at all to grant your request at this stage for self-representation.”
Defendant replied by challenging the court’s representation of the record pertaining to assigned counsel. Defendant asserted he was prepared to proceed because he did not have a new motion, but merely a supplemental points and authorities in support of his section 1385 motion to dismiss. Defense counsel then noted that defendant had been prepared to file the supplemental document on September 30, and that the supplemental document to the section 1385 motion to dismiss was the only motion that defendant intended to file. The court responded that it had already accommodated defendant by accepting his handwritten section 1385 motion to dismiss, and that the court did not need anything else on that motion. The court remained concerned that, notwithstanding defendant’s protestations to the contrary, his request to represent himself was an attempt to simply delay the proceedings. After further argument by defense counsel on behalf of defendant, the court denied defendant’s request to represent himself after consideration of the totality of the circumstances, including the untimeliness of the motion and the court’s belief that defendant desired to cause a delay and adversely affect the administration of justice. As to defendant’s nonappearance on September 30, the court noted that the proceeding that day concerned setting dates for a briefing schedule on defendant’s section 1385 motion to dismiss, and it was not a critical stage of the proceedings. Defense counsel was given permission to reply to the prosecutor’s opposition to the section 1385 motion to dismiss, but the court indicated it would not accept any additional handwritten pleadings from defendant.
At the beginning of the October 21 proceeding, defense counsel sought to be relieved because she had a irreconcilable conflict with defendant. After a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118), the court granted defense counsel’s request to be relieved. The court then asked defendant if he wished to represent himself or whether he wished new counsel to be appointed. Defendant unequivocally replied: “I will accept appointment of a new attorney.” The court noted it would appoint new counsel, but warned defendant that he would not be in control of his case, that counsel would make the decisions on strategy, and that defendant should consider his decision seriously. The court told defendant that if he wanted to make decisions, he would be better off representing himself. The court explained: “So I warn you, Mr. Williams, . . . if you don’t think that you’re going to be able to accept decisions that are made by the attorney, that are inconsistent with what you think is the best way to go, then you need to consider whether you really want Counsel. They’re not going to be puppets for you.”
On October 26, 2005, the court appointed Les Chettle as defendant’s attorney. Chettle stated that defendant had given him some “motions,” which counsel wanted to review. The court noted that the section 1385 motion to dismiss was still pending, and that it would rule on that motion on November 18 at the scheduled sentencing hearing. The court told Chettle: “[I]f there [are] any requests for anything supplemental, make sure that those requests are timely made, with the D.A.’s office given notice of anything else.” The court asked whether Chettle’s statement regarding “motions” referred to anything other than the section 1385 motion to dismiss that had been previously filed. Chettle replied that he was only referring to that motion. The matter was then continued to November 18 for sentencing.
At the November 18, 2005, sentencing hearing, defendant again requested permission to represent himself. The court indicated that it understood that defendant wanted to file a motion for a new trial, which would necessitate a continuance. Defendant replied that he did not need a continuance for a new trial motion, and he would object to a continuance. He had been prepared for two months to proceed, but his new counsel had not had either the opportunity or time to prepare for the hearing. Defendant was prepared and he wanted to proceed by representing himself, noting that he was more familiar with the case than his counsel or the district attorney’s office. The court again noted that defendant’s motion for a new trial might necessitate reviewing transcripts and having the district attorney’s office spend some time responding to his allegations, and therefore, even though defendant was not asking for a continuance, the motion would necessitate a continuance. The court also noted that at an earlier hearing, defendant had been given the opportunity to represent himself so that he would have been able to file any motions, he had been warned that he would not be permitted to continue to change his mind about counsel, and although defendant had requested counsel, after the assignment of counsel, defendant was again asking to represent himself. Normally, the court would allow defendant to represent himself, but it was clear to the court that what defendant planned to do would necessitate a continuance. Defendant responded by asserting that he had accepted representation by Chettle in good faith. During their first meeting, Chettle promised to meet with defendant, work on the case together, and prepare for the hearing. However, counsel had not accepted defendant’s telephone calls or returned his messages. Defendant spoke with counsel for the first time the day before sentencing, at which time counsel indicated he was not prepared to proceed. The court replied, by stating: “You have a constitutional right to represent yourself. [¶] . . . [¶] The Court is very mindful of that constitutional right. [¶] But we also have a right to proceed in this case in a timely fashion. And if you are telling me that you do not wish to have the Court review any transcripts, you do not wish to have any additional points and authorities, you do not wish to have the Court review any additional points and authorities, you do not wish to have any written points and authorities from the People on any motions that you make, if you are telling me that that is how you want to proceed, and that you want the Court to rule from the bench today on any new trial motion that you have and not consider anything else, you can proceed in pro per. [¶] But if you are telling me that you want to do a motion, and you want me to read it and you want me to spend some time, you want me to order a transcript, you want me to do legal research, you want the People to respond to your motion, you want to do all of those things, then it’s not going to happen. [¶] But if you just want to argue about a new trial and just submit the matter on the basis of what you want to argue about now, without any further review of any record or anything of this sort, if those are the conditions of your new trial motion, I’ll do it. [¶] I’m sure that Ms. Lozano [trial prosecutor] can respond to a new trial motion and any arguments that you make on a new trial motion . . . .” Interrupting the court, defendant indicated that he did not want the court to read any documents, he was prepared to orally read his documents, and he wanted the court to rule on his motion on the basis of what he said, without reviewing any transcripts or hearing any testimony. Defendant then indicated, however, that he wanted the court to consider Holland’s statement to the police, which statement had been presented at the trial. The court indicated it was “very familiar with the statement and everything,” to which defendant replied, “Then if your Honor is familiar with it, there . . . is no need to do anything else.” The court then granted defendant’s Faretta request, indicating that the court would listen to defendant’s arguments and rule on any new trial motion. The court, however, made one other clarification: “You will nonetheless be bound by any deadlines that were already set by prior counsel. You will be bound by any issues. And as I recall, the only issue that Ms. Kingston . . . raised in her oral motion for [a] new trial related to the evidence on the burglary. So if you want to argue that motion, you can. [¶] But in terms of raising other issues for [a] new trial, . . . I’m not going to allow you to do that.” Defendant replied; “Your Honor, among the issues, as it relates to a motion for a new trial, is the fact that Ms. Kingston failed to do . . . a number of things, including not preparing a motion for a new trial in a timely manner. So to the extent that she was -- “ The court interrupted, stating: “But those kinds of things I would have to have a hearing . . . before I could decide the motion. I would have to take testimony and those kinds of things, and hear from people, which would necessitate a continuance. That’s not something that I would be able to rule on . . . .” Defendant protested, arguing that he did not believe he had any new issues that would necessitate a continuance. To which the court replied, “Those issues would necessitate a continuance and testimony from counsel.” Therefore, even though defendant wanted the court to “go forward,” the court could not rule on former defense counsel’s effectiveness without hearing testimony from her. Defendant then requested the court to clarify what limitations would be imposed on him pertaining to a motion for a new trial. The court indicated that the only issue to be considered was the burglary conviction. When defendant protested, the court reasserted that defendant’s motion for a new trial would necessitate a continuance, that there had been delay by defendant’s “back and forth” request for counsel, and that defendant’s Faretta motion was untimely, and therefore, the court would not allow it. The court announced that the case would “go forward. Mr. Chettle is here and is prepared to proceed with the sentencing. And there is no new trial motion that is pending. [¶] The last new trial . . . motion that Ms. Kingston indicated she withdrew, and you will be bound by her prior decisions in this case while you were represented by counsel.” The court also noted it had not heard a motion for a new trial from Mr. Chettle, who was then representing defendant, and defendant’s request to represent himself had been denied, “so [defendant was] represented by counsel, and counsel ha[d] to make motions. [¶] There is no motion. There is a pending [section] 1385 motion that needs to be decided before we can proceed. [¶] Mr. Chettle, you remain in as counsel.” The court then asked if defense counsel had any arguments pertaining to the section 1385 motion. After an off-the-record discussion with defendant, defense counsel asked the court if there were some restriction on whether supplemental points and authorities could be filed. The court replied that the deadline for filing any supplemental points and authorities on that motion had passed, and all arguments were adequately spelled out in the moving papers. Defense counsel indicated that he had been provided with “a 15-page supplemental points and authorities,” but the court interrupted him by stating, “The deadline for filing any supplemental points and authorities has long passed. [¶] The points and authorities were already filed in connection with the motion.” The court then asked if defense counsel was submitting the motion, and defense counsel replied, “Yes.” Having read and considered the papers filed in connection with the section 1385 motion to dismiss, the court declined to exercise its discretion to set aside the jury’s verdict, and therefore, denied the motion. The court then proceeded to sentence defendant. In response to the court’s query whether there was any legal cause why judgment should not be imposed, defense counsel replied that because there was no pending new trial motion, there was no legal cause why judgment could not be imposed.
B. Analysis
1. Defendant’s Self-Representation Before Trial
Defendant concedes that when Judge Saunders observed that defendant’s written request for self-representation did not refer to the potential sentences for the charged offenses, the court “quite properly” decided to review the advisements with him, “most importantly,” his maximum sentence exposure. However, when the court mistakenly told defendant on several occasions that he was facing the possibility of a life term without parole, which was a greater punishment than he was actually facing, defendant asserts that such misadvisement caused him to relinquish his right to represent himself. According to defendant, the court should have granted the prosecutor’s request to review the case for five minutes before subjecting defendant to a “lengthy tag-team misadvisement that shook him out of vigorous self-representation which he had exercised for over a year up to the very eve of trial.” Although defendant does not doubt the good faith of Judge Saunders and the trial prosecutor, he nevertheless contends that as a consequence of the misadvisement regarding his potential sentence, his decision to forego self-representation and agree to the assigned counsel was not intelligently made, and constituted a denial of his right to self representation, which is a structural error requiring reversal even in the absence of any prejudice. We conclude that reversal is not warranted on this ground.
“A defendant who knowingly and intelligently waives the right to counsel possesses a right under the Sixth Amendment of the federal Constitution to conduct his or her own defense. [Citation.]” (People v. Jenkins (2000) 22 Cal.4th 900, 959 (Jenkins).) “ ‘When confronted with a request’ for self-representation, ‘a trial court must make the defendant “aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘[defendant] knows what he is doing and his choice is made with eyes open.’ ” (Faretta, supra, 422 U.S. at p. 835.)’ ” (People v. Stanley (2006) 39 Cal.4th 913, 932 (Stanley).) “[T]he court should draw every reasonable inference against waiver of the right to counsel.” (People v. Marshall (1997) 15 Cal.4th 1, 23 (Marshall).) “ ‘Unlike the right to representation by counsel, “ ‘the right of self-representation is waived unless defendants articulately and unmistakably demand to proceed pro se.’ ” [Citation.]’ ” (Stanley, supra, 39 Cal.4th at p. 932.)
We are not persuaded by defendant’s argument that he was “a determined pro per defendant” and the court’s misadvisement of the potential maximum sentence “shook him,” thereby inducing him to forego his right to represent himself. During the lengthy colloquy on March 28, 2005, defendant made various statements indicating that his decision to represent himself was not really a choice but was forced on him because he believed that some of his formerly assigned counsel were not competent to represent him. Such statements could be construed to undermine the earlier grant of his Faretta motion in 2004. (See Marshall, supra, 15 Cal.4th p. 23.) “The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant’s conduct and other words. Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant’s conduct or words reflecting ambivalence about self-representation may support the court’s decision to deny the defendant’s motion.” (Ibid.) Regardless of the court’s misadvisement regarding the potential sentence defendant was facing, the defendant’s statements at the March 28, 2005, hearing “do not constitute an unequivocal invocation of the right of self-representation simply because . . . the trial court failed to make an express finding on the record that the request was equivocal . . . .” (Id. at p. 25.)
Defendant’s reliance on United States v. Erksine (9th Cir. 2004) 355 F.3d 1161, 1169-1171 (Erksine) and People v Noriega (1997) 59 Cal.App.4th 311 (Noriega) is misplaced. In Erksine, defendant was granted a new trial because it was reasonable to conclude that defendant’s waiver of his right to counsel and decision to represent himself was based on the court’s misadvisement regarding his potential sentence, which occurred immediately before defendant’s decision to forego counsel. (355 F.3d at pp. 1169, 1171, fn. 13.) Similarly, in Noriega, defendant was granted a new trial because he agreed to waive counsel and represent himself immediately after the court seemed to encourage him to take that course but failed to advise him of the risks of self-representation. (59 Cal.App.4th at p. 321.)
The circumstances present in this case distinguish it from Erksine and Noriega. Because Judge Saunders believed defendant had not been adequately advised of the dangers of self-representation, the court sua sponte and properly readvised defendant. By doing so, defendant was given the opportunity to reconsider his decision to represent himself after speaking with prospective counsel, who was described as capable of handling the most serious criminal cases pertaining to a potential sentence of life without parole. We also deem it significant that after discussing the matter with Kingston, defendant returned to court without giving any indication that his ultimate decision to accept counsel representation was influenced by anything the court had said or done two days earlier. (See People v. Lancaster (2007) 41 Cal.4th 50, 70.) Thus, on this record, we cannot conclude defendant’s right to represent himself was abridged or otherwise not respected by Judge Saunders.
2. September 30, 2005 Proceeding
Defendant argues that his absence from the September 30, 2005, proceeding, deprived him of “procedural due process, fundamental fairness at . . . sentencing, his constitutional right to be present, and his right to the effective assistance of counsel to argue the matter.” He contends the proceeding was “clearly a critical stage” because on that date, “the court deemed there would be . . . no motion for new trial; no orders for transcripts to support such motion; or any further pleadings by the defense (except a reply to a previous motion).” According to defendant, the court’s rulings on September 30 “ended up defeating his pro per motions for new trial and self-representation outside his presence or even in the presence of his attorney.” We see no merit to defendant’s contentions.
As noted later by Judge Harbin-Forte, the September 30, 2005, proceeding was not a “critical stage.” On that day, the court only set a briefing schedule regarding the papers to be filed on defendant’s pending section 1385 motion to dismiss. At the September 30 proceedings, although the court noted that defense counsel had not filed a motion for a new trial, it did not otherwise comment regarding whether it would reconsider the issue. It did so at the next court hearing on October 14. Defendant also challenges the September 30, 2005, minute order, which reads: “Court will no longer accept handwritten pleadings from deft. (not on record).” However, at the time of the court’s ruling, defendant was then represented by counsel. Consequently, “the court had the authority to refuse to file or consider pro se motions and other documents presented by [defendant] that related to the conduct of the case,” including any motion for a new trial. (People v. Harrison (2001) 92 Cal.App.4th 780, 789; see People v. Merkouris (1956) 46 Cal.2d 540, 554-555; see also People v. Clark (1992) 3 Cal.4th 41, 173; People v. Mattson (1959) 51 Cal.2d 777, 797-798.) We see nothing in the record that supports defendant’s argument that the court’s September 30 comments had any bearing on its later rulings pertaining to a motion for a new trial, any filing of a supplemental memorandum on the pending section 1385 motion to dismiss, and defendant’s requests to represent himself. These rulings were made after considering arguments of defense counsel and defendant himself.
3. Defendant’s Requests for Self-Representation Pertaining to Motion For New Trial and At Sentencing
Defendant argues that Judge Harbin-Forte erred, at the November 18 sentencing proceedings, by refusing to permit him or his defense counsel to file with the court or read into the record written grounds for a new trial, and in refusing to allow defendant to represent himself at sentencing. We conclude that defendant’s arguments do not warrant reversal.
Defendant concedes that after his former defense counsel (Kingston) was relieved, he accepted new counsel to represent him, Les Chettle. He contends, however, that when Chettle appeared unprepared on November 18, the court erred by refusing to allow either defendant or Chettle to file or read the written claims defendant wanted to file as grounds for a new trial motion. However, defendant’s argument ignores that “ ‘the powers and responsibilities which attend the representation of a criminally accused person should never be conferred jointly and equally on the accused and the attorney.’ ” (People v. Stewart (2004) 33 Cal.4th 425, 518 (Stewart), quoting People v. Bloom (1989) 48 Cal.3d 1194, 1218-1219 (Bloom).) “ ‘Stated otherwise, at all times the record should be clear that the accused is either self-represented or represented by counsel; the accused cannot be both at once. . . .’ ” (Stewart, supra, 33 Cal.4th at p. 518, quoting Bloom, supra, 48 Cal.3d at p. 1219.) If defendant believed Chettle was not properly representing him, defendant’s remedy was a Marsden motion. (People v. Wilkins (1990) 225 Cal.App.3d 299, 309, fn. 4.) So long as defendant was represented by counsel and in the absence of a Marsden motion, the court was not obligated to consider either an oral or written motion for a new trial submitted by defendant himself. Accordingly, we reject defendant’s request to remand the matter to permit him to file a motion for a new trial. Defendant does not now contend that his assigned counsel was ineffective and we express no opinion on the issue.
Defense counsel Chettle sought to file appellant’s pro se supplemental document pertaining to defendant’s section 1385 motion. There is no support in the record for defendant’s assertion that this supplemental document, however denominated, “was clearly part and parcel of the new trial claims” defendant wanted to argue orally.
To the extent defendant challenges the denial of his Faretta motion at the October 14, 2005, proceeding, we note that at the next proceeding on October 21, 2005, after Kingston was relieved as counsel, the court asked the defendant if he wanted to represent himself and defendant indicated he wanted the court to appoint new counsel. When defendant again sought to represent himself at sentencing on November 18, 2005, it was then within the court’s discretion to determine whether to grant the request at that time. (People v. Burton (1989) 48 Cal.3d 843, 852; see Marshall, supra, 15 Cal.4th at pp. 22-25; Bloom, supra, 48 Cal.3d at p. 1220; cf. People v. Halvorsen (2007) 42 Cal.4th 379, 434 [in capital case, trial court erred in denying defendant’s postguilty phase Faretta motion made seven months prior to jury selection at penalty retrial before different jury]; People v. Miller (2007) 153 Cal.App.4th 1015, 1024 [trial court erred in denying defendant’s postverdict Faretta motion made well in advance of commencement of sentencing hearing].) In denying defendant’s Faretta motion made at sentencing, the court appropriately considered, as relevant, “defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.” (People v. Windham (1977) 19 Cal.3d 121, 128.)
III. Trial Court’s Instructions
A. Simple Assault and Assault with a Deadly Weapon
The court instructed the jury regarding the elements of simple assault and assault with a deadly weapon using the language in CALJIC Nos. 9.00, 9.01, and 9.02. The court also instructed the jury that, “If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime of which he is accused in Counts 4 and 5 [assaults with a deadly weapon], and you unanimously so find, you can convict him of any lesser crime provided you are satisfied beyond a reasonable doubt that he is guilty of that crime. [¶] You will be provided with guilty and not guilty verdict forms for the crimes charged in Counts 4 and 5, and lesser crimes. The crime of simple assault is a lesser crime to that of assault with a deadly weapon, as charged in Counts 4 and 5. [¶] Thus, you are to determine whether a defendant is guilty or not guilty of the crimes charged, or of any lesser crimes. In doing so, you have discretion to choose the order in which you evaluate each crime and consider the evidence pertaining to it. You may find it to be productive to consider and reach tentative conclusions to all charges and lesser crimes before reaching any final verdicts.”
The written instruction read: “CALJIC 9.00. [¶] The crime of simple assault, in violation of Penal Code § 240, is a lesser included offense of the crimes of assault with a deadly weapon charged in Counts Four and Five. [¶] Every person who commits an assault upon another person is guilty of a violation of Penal Code Section 240, a misdemeanor. [¶] In order to prove an assault, each of the following elements must be proved: [¶] 1. A person willfully and unlawfully committed an act which by its nature would probably and directly result in the application of physical force on another person; [¶] 2. The person committing the act was aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of this act that physical force would be applied to another person; and [¶] 3. At the time the act was committed, the person committing the act had the present ability to apply physical force to the person of another. [¶] The word ‘willfully’ means that the person committing the act did so intentionally. However, an assault does not require an intent to cause injury to another person, or an actual awareness of the risk that injury might occur to another person. [¶] To constitute an assault, it is not necessary that any actual injury be inflicted. However, if an injury is inflicted it may be considered in connection with other evidence in determining whether an assault was committed and, if so, the nature of the assault. [¶] A willful application of physical force upon the person of another is not unlawful when done in lawful self-defense. The People have the burden to prove that the application of physical force was not in lawful self-defense. If you have a reasonable doubt that the application of physical force was unlawful, you must find the defendant not guilty.”
The written instruction read: “CALJIC 9.01. [¶] A necessary element of an assault is that the person committing the assault ha[s] the present ability to apply physical force to the person of another. This means that at the time of the act which by its nature would probably and directly result in the application of physical force upon the person of another, the perpetrator of the act must have the physical means to accomplish that result. If there is this ability, ‘present ability’ exists even if there is no injury.”
The written instruction read: “CALJIC 9.02. [¶] Defendant is accused in Counts Four and Five of having violated section 245, subdivision (a)(1) of the Penal Code, a crime. [¶] Every person who commits an assault upon the person of another with a deadly weapon or instrument, other than a firearm is guilty of a violation of section 245, subdivision (a)(1) of the Penal Code, a crime. [¶] A ‘deadly weapon’ is any object, instrument, or weapon which is used in such a manner as to be capable of producing, and likely to produce, death or great bodily injury. [¶] ‘Great bodily injury’ refers to significant or substantial bodily injury or damage; it does not refer to trivial or insignificant injury or moderate harm. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person was assaulted; and [¶] 2. The assault was committed with a deadly weapon or instrument, other than a firearm.”
During deliberations, the jury asked several questions regarding the assault counts. In its first question, the jury asked: “In considering simple assault within Count 4 [assault with pellet gun], can the application of pepper spray to Mr. Holland be considered an application of force to satisfy Element[s] 1 and 3 of the lesser charge?” In response to the jury’s question, the court replied, “No.” Defendant concedes the court correctly responded to the jury’s question because only the pellet gun, not the pepper spray, was charged in count 4 as the means of force used by defendant.
In its second question, the jury asked: “In Count 4 [assault with a pellet gun], to satisfy the definition of assault with a deadly weapon, does the weapon have to be brandished or just readily available?” Initially, both defense counsel and the trial prosecutor asked the court to re-read certain jury instructions. The court was also inclined to only re-read jury instructions, rather than trying to answer the question, noting that CALJIC 9.02 was the instruction that told the jurors what elements must be proved to establish an assault with a deadly weapon. Defense counsel asked the court to read the statutory definition of a simple assault as stated in the verdict form, i.e., an “ ‘unlawful attempt, coupled with a present ability, to commit a violent injury’ (§ 240)”; the prosecutor agreed to a reading of both the statutory definition in section 240 and the statutory definition of assault with a deadly weapon in section 245. But, the court was reluctant to deviate from the CALJIC language, which instructed the jury as to the elements that had to be proved for each offense. When the court noted that Count 4 dealt with the pellet gun, defense counsel then requested that the court read to the jury only the CALJIC instruction dealing with Penal Code section 245. The prosecutor objected because the jurors were clearly having a problem pertaining to the definition of assault as opposed to brandishing, which was not a word that appeared in the instructions regarding the assault counts. After further discussion, defense counsel requested that the court respond to the jury’s question by re-reading all three of the CALJIC instructions relating to the assault counts, namely CALJIC Nos. 9.00, 9.01 and 9.02, as well as the verdict form. The court re-read the noted CALJIC instructions, telling the jurors that they might not find the response to their question very satisfying. The court declined to read the verdict form because there was nothing in the form that would assist the jury in answering its question.
The verdict form for the lesser crime of assault relating to Count 4 read: “We, the jury in the above-entitled case find the defendant GUILTY of a misdemeanor, to wit: a violation of Section 240 of the Penal Code in that said defendant did unlawfully attempt, coupled with a present ability, to commit a violent injury upon Jon Holland, a lesser included offense of that charged in Count Four.”
After further deliberations, the jurors asked a third question: “On page 31 of the jury instructions, is the paragraph beginning with ‘A deadly weapon’ merely a definition of a deadly weapon?” Page 31 contained the CALJIC 9.02 instruction defining the crime of assault with a deadly weapon. In response to defense counsel’s arguments, the court declined to read to the jury the statutory definition of the crime of assault because the instructions already told the jury what they must find in order to convict defendant of an assault. The court was also concerned by the jury’s question because the definition of a deadly weapon was “more than merely a definition,” it was the “controlling” or “limiting” definition of a deadly weapon. The court agreed with defense counsel that it should not respond in a way that would separate one portion of the instructions without reminding the jury to look at the totality of the instructions, and that it would be helpful to remind the jury that it could ask for read backs of the testimony. The court re-read CALJIC Nos. 9.00, 9.01, 9.02, and also CALJIC Nos. 1.00, 1.01, and 17.43. The court informed the jury that one of the reasons for its response (re-reading jury instructions) was to avoid intruding on the jury’s deliberative process.
The written instruction read, in pertinent part: “CALJIC 1.00. [¶] Members of the Jury: [¶] You have heard all the evidence and the arguments of the attorneys, and now it is my duty to instruct you on the law that applies to this case. The law requires that I read the instructions to you. [¶] You must base your decision on the facts and the law. [¶] You have two duties to perform. First, you must determine what facts have been proved from the evidence received in the trial and not from any other source. A ‘fact’ is something proved by the evidence. Second you must apply the law that I state to you, to the facts, as you determine them, and in this way arrive at your verdict and any finding you are instructed to include in your verdict. [¶] You must accept and follow the law as I state it to you, regardless of whether you agree with it. If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions.”
The written instruction read, in pertinent part: “CALJIC 1.01. [¶] If any rule, direction or idea is repeated or stated in different ways in these instructions, no emphasis is intended and you must not draw any inference because of its repetition. Do not single out any particular sentence or any individual point or instruction and ignore the others. Consider the instructions as a whole and each in light of all the others. [¶] The order in which the instructions are given has no significance as to their relative importance.”
The written instruction read, in pertinent part: “CALJIC 17.43. [¶] During deliberations, any question or request you may have should be addressed to the Court on a form that will be provided. If there is any disagreement as to the actual testimony, you have the right, if you choose, to request a readback by the reporter. You may request a partial or total readback, but any readback should be a fair presentation of that evidence. If a readback of testimony is requested, the reporter will delete objections, rulings, and sidebar conferences so that you will hear only the evidence that was actually presented. [¶] . . . Please do not casually ask for the readback of testimony when it is not necessary to your deliberations. But if any juror does need a readback, do not hesitate to ask for it by specifying on the jury request form what portions of the testimony you would like readback. . . .”
2. Analysis
Defendant argues that the court’s failure to give an adequate definition of simple assault or assault with a deadly weapon—despite the jury’s requests for clarification—impermissibly reduced the prosecution’s burden of proof and denied him due process of law and his right to a jury determination on all elements of the offenses beyond a reasonable doubt. According to defendant, the jury’s persistent questions show that the court’s rereading of the same instructions it had initially given was wholly insufficient for the jury to resolve the assault charges. We conclude there is no basis for reversal.
“Section 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law. [Citation.] If, however, ‘ “the original instructions are themselves full and complete, the court has discretion under . . . section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information.” ’ [Citations.]” (People v. Smithey (1999) 20 Cal.4th 936, 985, fn. omitted.) We see no abuse of discretion.
As a whole, the instructions informed the jury of the elements and definitions to be considered in evaluating whether defendant was guilty of assault with a deadly weapon and simple assault, and the requisite intent applicable to those crimes. We assume “the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.” (People v. Romo (1975) 47 Cal.App.3d 976, 990, italics added, disapproved on other grounds in People v. Bolton (1979) 23 Cal.3d 208, 213-214, and People v. Anderson (1987) 43 Cal.3d 1104, 1122-1123.) Given the full and complete instructions on what assault was, the court was not required to instruct the jury on what assault was not. While the jury’s questions were related, they were based on different aspects of the instructions. In the absence of any further requests from the jury, we presume the court’s responses to the related but separate questions dispelled any confusion on the jury’s part regarding the law to be applied in this case. (People v. Smithey, supra, 20 Cal.4th at p. 985.)
To the extent defendant challenges the CALJIC jury instructions used in this case, we note that the instructions given were consistent with the holding in People v. Williams (2001) 26 Cal.4th 779 (Williams), that “assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (Id. at p. 790.) Under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, we are required to follow Williams despite the Third District’s criticism of that decision in People v. Wright (2002) 100 Cal.App.4th 703, 710-724. Similarly, we are not persuaded by defendant’s argument that the court should have used certain language in the then prospective CALCRIM instructions to respond to the jury’s questions. Defense counsel did not ask the court to consider responding to the jury’s questions by using the language in those instructions. Additionally, the language in CALCRIM Nos. 875 and 915 does not establish that the responses given by the court using the language in CALJIC Nos. 9.00, 9.01, and 9.02, either incorrectly stated the law, were confusing to the jury, or otherwise were inadequate.
The CALCRIM instructions regarding assault with a deadly weapon (CALCRIM No. 875) and simple assault (CALCRIM No. 915) essentially track the language of CALJIC Nos. 9.00, 9.01, and 9.02. The CALCRIM instructions do not include the second and third sentences in CALJIC No. 9.01, which explain the phrase “present ability.” (Compare CALCRIM Nos. 875, 915 with CALJIC No. 9.01.)
B. Lesser Related Offense of Threatening With A Weapon
Defendant asserts that his federal constitutional rights to trial by jury, compulsory process, due process, and a fair trial were violated by the court’s refusal to instruct on the misdemeanor offense of threatening with a deadly weapon in violation of section 417, subdivisions (a)(1) or (a)(2), as a lesser related offense to either assault with a pellet gun or assault with a metal pipe. Defendant recognizes that pursuant to People v. Birks (1998) 19 Cal.4th 108, 136, fn. 19 (Birks), the trial court properly denied the request to instruct on the lesser related offense because the prosecution objected to the instruction. Defendant asserts this issue for “purposes of exhausting state remedies.” Because we are bound by Birks, we see no reason to further address the issue.
IV. Cumulative Effect of Alleged Error
Defendant asserts he was deprived of a fair trial because of the cumulative effect of the errors he alleges occurred during the trial. We do not discern any cumulative error warranting reversal.
V. Sentencing Errors
A. Section 654
Defendant argues that section 654 precluded the trial court from imposing separate sentences for the burglary and the two assault convictions. We disagree.
“The purpose of section 654 is to insure that a defendant’s punishment is commensurate with his culpability and that he is not punished more than once for what is essentially one criminal act. [Citation.] Courts have devised various rules for proper application of section 654, but ‘[b]ecause of the many differing circumstances wherein criminal conduct involving multiple violations may be deemed to arise out of an “act or omission,” there can be no universal construction which directs the proper application of section 654 in every instance.’ [Citation.]” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1252 (Kwok).) Additionally, section 654’s application has been limited when courts have “narrowly interpreted the length of time the defendant had a specific objective, and thereby found similar but consecutive objectives permitting multiple punishment,” or otherwise “found separate, although sometimes simultaneous, objectives under the facts.” (People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212, 1216 [Supreme Court does not question validity of multiple punishment in those cases where trial courts found “consecutive, and therefore, separate, intents,” or “different, if simultaneous, intents”].)
“The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them. [Citations.] ‘We must “view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” [Citation.]’ [Citation.]” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313.)
Courts have held that section 654 bars multiple punishments for burglary and assault committed when the only criminal objective is to assault the victim. (People v. Radil (1977) 76 Cal.App.3d 702, 713 (Radil); see People v. Hester (2000) 22 Cal.4th 290, 294.) Thus, when a defendant unlawfully enters a home for the sole purpose of assaulting the victim within, he or she may not be separately punished both for the burglary and the assault. (Radil, supra, 76 Cal.App.3d at p. 713.) However, where, as here, the court could reasonably conclude, based on defendant’s written note and his statements to the police, that he had multiple objectives in unlawfully entering the victims’ home, only one of which was to assault them, then separate punishment for burglary and the assault may be sustained. (See, e.g., People v. Booth (1988) 201 Cal.App.3d 1499, 1501-1502 [where defendant entered with intent to commit theft and rape, and committed rape, court could impose separate punishments for burglary and rape convictions].)
Consequently, we need not address respondent’s argument that separate sentences on the burglary and assault convictions can be sustained under the multiple victim exception to section 654.
Defendant also challenges the sentences imposed on the two assault convictions, arguing that there was no basis for inferring any separate intent, transaction, or objective as between the two assaults, which occurred against the same victim in a very short time during a single struggle. However, in refusing to apply section 654, the court could have reasonably found that given the length of time between defendant’s initial assault on Holland immediately on entering the house and the defendant’s later assault with a metal pipe, defendant had “similar but consecutive objectives permitting multiple punishment[s].” (People v. Latimer, supra, 5 Cal.4th at p. 1212; see People v. Trotter (1992) 7 Cal.App.4th 363, 368 (Trotter) [reviewing court upheld the trial court’s imposition of separate consecutive sentences on two assault convictions where defendant fired two shots a minute apart at the victim.].) Here, the court could find that punishment for the two assaults was commensurate with defendant’s culpability because the assaults were separated by periods of time during which defendant had an opportunity to reflect and to break off his assaultive behavior but failed to do so. (Trotter, supra,7 Cal.App.4th at p. 368.)
B. Upper Term on the Burglary Conviction
In Cunningham, supra, 127 S.Ct. 856, the United States Supreme Court concluded that our former Determinate Sentencing Law (DSL), ran afoul of the principles set forth in Blakely, supra, 542 U.S. 296, by “assigning to the trial judge, rather than to the jury, the authority to find the facts that render a defendant eligible for an upper term sentence.” (People v. Sandoval (2007) 41 Cal.4th 825, 832 (Sandoval).) After Cunningham, the United States Supreme Court vacated our Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I) and remanded for further consideration in light of Cunningham. (Black v. California (2007) __ U.S. __ [127 S.Ct. 1210].) On July 19, 2007, our Supreme Court issued its decision on remand in People v. Black (2007) 41 Cal.4th 799 (Black II).
At the time of sentencing, former section 1170, subdivision (b) provided, in relevant part, that the “court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” On March 30, 2007, the Legislature amended certain provisions of the sentencing law “to respond to” Cunningham, supra, 127 S.Ct. 856, and “to maintain stability in California’s criminal justice system while the criminal justice and sentencing structures in California sentencing are being reviewed.” (Stats. 2007, ch. 3, § 1.) Section 1170, subdivision (b), now provides, in relevant part, that the “choice of the appropriate term shall rest within the sound discretion of the court.” (Stats. 2007, ch. 3, § 2.)
Defendant argues that the trial court’s imposition of the upper term of six years on his burglary conviction violated Blakely and Cunningham. He also contends that he did not forfeit review of the issue because his sentence was imposed after our Supreme Court’s decision in Black I, which was binding on the trial court until it was overruled by Cunningham. Respondent contends defendant’s Blakely argument is not preserved for review and in any event, reversal is not warranted. We conclude the matter is preserved for our review, that the imposition of the upper term violated defendant’s right to a jury trial pursuant to Blakely/Cunningham, that the error was not harmless, and accordingly, the matter must be remanded for resentencing.
The forfeiture issue has been recently addressed in Sandoval. In that case, our Supreme Court concluded that a defendant who was sentenced after its decision in Black I but before Cunningham, would not forfeit a Blakely objection because of the failure to raise the issue at sentencing. (Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.) “An objection in the trial court is not required if it would have been futile. [Citations.] . . . Had defendant requested a jury trial on aggravating circumstances, that request clearly would have been futile because the trial court would have been required to follow . . . Black I and deny the request.” (Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.) Accordingly, defendant is not barred from now raising the issue. Respondent’s reliance on People v. Hill (2005) 131 Cal.App.4th 1089 (Hill) is misplaced. In that case, defendant’s Blakely claim was forfeited because his sentencing took place shortly after Blakely but before Black I. (Hill, supra, 131 Cal.App.4th at p. 1103.)
In this case, the probation department report listed as circumstances in aggravation that (1) defendant was armed with a weapon at the time of the commission of the crime (Cal. Rules of Court, rule 4.421(a)(2)); (2) the manner in which the crime was carried out indicated planning, sophistication or professionalism (rule 4.421(a)(8)); and (3) defendant engaged in violent conduct that indicated a serious danger to society (rule 4.421(b)(1)). The one listed circumstance in mitigation was that defendant had no prior criminal record (rule 4.423(b)(1)). In imposing the upper term on the burglary conviction, the court relied on the aggravating factors listed in the probation department report: “[D]efendant was armed with a firearm in the commission of the offense, . . . the violent nature of the offense, and . . . the manner in which the crime was carried out indicates planning, sophistication, and professionalism.”
All further unspecified references to rules are to the California Rules of Court.
Defendant correctly asserts that because the court imposed a separate sentence on the arming enhancement, that factor could not be used to impose an aggravated term on the burglary conviction. (§ 1170, subd. (b) [“the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law”]; see rule 4.420(c).) The two other aggravating factors (that defendant engaged in violent conduct that indicated a serious danger to society and the manner in which the offenses were committed) were based on the facts underlying the crimes, and were not admitted by defendant or established by the jury’s verdict. Contrary to respondent’s contention, we cannot conclude that the jury, if asked, would have found those sentencing factors true beyond a reasonable doubt. Accordingly, the Blakely/Cunningham error requires vacating the sentence imposed on the burglary conviction and remanding the matter for resentencing, which is to be conducted in a manner consistent with the amendments to the DSL adopted by the Legislature effective March 30, 2007, and the Judicial Council’s related amended sentencing rules. (Sandoval, supra, 41 Cal.4th at pp. 843-846.)
Rule 4.420(c) reads: “To comply with section 1170[, subd.](b), a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so. The use of a fact of an enhancement to impose the upper term of imprisonment is an adequate reason for striking the additional term of imprisonment, regardless of the effect on the total term.” (Rule 4.420(c).)
Respondent argues that any challenge to the court’s conceded error in double using the arming factor was waived because defendant did not raise any objection at sentencing. However, given the trial court’s reliance on two other aggravating factors to increase the sentence, any objection by defense counsel to the court’s use of the arming factor would not have resulted in a different sentence. (See, e.g., People v. Osband (1996) 13 Cal.4th 622, 728-729 [existence of single aggravating factor is sufficient to support imposition of upper term].) In light of our determination that the court’s reliance on the other two aggravating factors to impose an upper term violated defendant’s Blakely/Cunningham right to a jury trial, we choose to exercise our discretion to consider defendant’s challenge to the court’s concededly erroneous dual use of the arming factor in determining whether the matter should be remanded for resentencing.
C. Restitution Fine
Section 1202.4, requires that “[i]n every case where a person is convicted of a crime,” the trial court shall impose a restitution fine “unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.” (Id., subd. (b).) “The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony, and shall not be less than one hundred dollars ($100), and not more than one thousand dollars ($1,000), if the person is convicted of a misdemeanor.” (Id., subd. (b)(1).) “In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.” (Id., subd. (b)(2).)
Defendant challenges the restitution fine of $4,800, which sum was recommended by the probation department officer and imposed by the court. Although the court did not indicate how the fine was calculated, defendant contends the court used the felony formula under section 1202.4, subdivision (b)(2), because the product of $200 multiplied by defendant’s sentence of 8 years 6 months (rounded to 8 years), multiplied by defendant’s three convictions, is $4,800. He then argues that the court “clearly intended to rely on the felony formula.” Although defendant recognizes that his failure to object precludes appellate review, he argues that the failure should be excused because his counsel was ineffective for failing to object at sentencing. We conclude defendant’s contentions do not warrant granting him any relief.
Initially, we reject defendant’s contention that the restitution fine was unauthorized. The total restitution fine of $4,800, was within the court’s broad discretionary right to impose a fine between $200 and $10,000, for each felony conviction, and a fine between $100 and $1,000, for the misdemeanor conviction. (§ 1202.4, subd. (b).)
Defense counsel’s failure to object to the restitution fine does not constitute ineffective assistance. “In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Second, he must show prejudice flowing from counsel’s performance or lack thereof.” (People v. Williams (1997) 16 Cal.4th 153, 214-215.) “ ‘It is not enough for the defendant to show that the error[ ] had some conceivable effect on the outcome of the proceeding. . . . The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional error[ ], the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (People v. Ledesma (1987) 43 Cal.3d 171, 217-218; see People v. Bolin (1998) 18 Cal.4th 297, 333.)
The probation department officer accurately reported that defendant had been convicted of two felonies and one misdemeanor, and the court expressly indicated its awareness that defendant had been convicted of two felonies and one misdemeanor. Additionally, there is nothing in the record indicating either the probation department officer or the court used or relied on the statutory formula for felony restitution in determining the amount of the restitution fine for the three convictions. Thus, we reject defendant’s speculative argument that “the court clearly intended to rely on the felony formula” in calculating the restitution fine. Because defendant has not shown there is a reasonable probability the court would have imposed a lesser restitution fine if his counsel had objected at sentencing, remand on this basis is not warranted.
DISPOSITION
The judgment is reversed with respect to the imposition of sentence on the burglary conviction and the matter is remanded for resentencing on that conviction. In all other respects, the judgment is affirmed.
We concur: Pollak, J., Siggins, J.