(Contra Costa County Super. Ct. No. 050900589)
The opinion of the court was delivered by: Pollak, Acting P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Oscar Maurice Pearson appeals from his conviction on charges of vehicle burglary and other offenses. He contends the court erroneously denied his Faretta*fn1 motions for self-representation and that, under a recent amendment to Penal Code section 4019 that became effective after his sentence was imposed but before the judgment became final, he is entitled to increased presentence conduct credits. We reject defendant's first argument, but agree with his second.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by an information filed on January 29, 2009, with second degree vehicle burglary (Pen. Code,*fn2 §§ 459, 460, subd. (b)), petty theft with prior theft convictions (§§ 484, 666, 667.5, subd. (b)), receiving stolen property (§ 496, subd. (a)), and resisting an executive officer (§ 69). The information also charged four prior prison terms (§ 667.5, subd. (b)). The charges stemmed from events occurring on June 22, 2008, but in view of the limited contentions raised on appeal there is no need to describe the evidence that was presented at trial.
More pertinent is a partial history of the proceedings that preceded trial, during which defendant filed numerous Marsden*fn3 motions for substitution of appointed counsel, received permission to represent himself and then withdrew his request to do so, and then filed renewed Faretta motions on the eve of trial that were denied and form the basis for his appeal.
On July 18, 2008, the date on which his preliminary hearing was originally scheduled, defendant filed a Marsden motion before the Honorable Peter Berger, seeking to replace Zephra Brewer, his appointed counsel from the public defender's office. Following an in camera hearing, the court denied the motion, at which point defendant indicated that he wanted to represent himself. The court continued the preliminary hearing to permit defendant and counsel to consider the matter further. At the continued hearing on August 8, before the Honorable Walter D. Rogers, defendant made another Marsden motion, which the court considered and denied. Defendant then renewed his request to represent himself, the court conducted a Faretta hearing and granted the Faretta motion. The court continued the preliminary hearing to permit defendant to prepare for the hearing.
On January 6, 2009, proceedings resumed before the Honorable Clare M. Maier. The court interpreted a "Notice of Defendant's Marsden Motion," which defendant apparently filed on December 29, as indicating his intent to "recant" his Faretta motion.*fn4 Although asserting that he could not effectively represent himself because he was being held in medical segregation, defendant told the court that he would withdraw his request to represent himself only if private counsel were appointed to represent him. The court found no good cause to refer the case to private counsel, and denied defendant's motion to reconsider his Marsden motion. Defendant refused the court's offer to refer him to the public defender's office and on the following day reappeared before Judge O'Malley without counsel, again asking the court to reconsider his Marsden motion. The court indicated that it would review the transcripts from the previous Marsden motions and re-examine his file. By a minute order dated January 9, 2009, the court again denied defendant's motion for reconsideration of his Marsden motion.
On February 2, 2009, defendant appeared for arraignment before the Honorable Leslie Landau without counsel. He informed the court that he was not ready to proceed and again asked for reconsideration of his Marsden motion.*fn5 The court continued the arraignment to the following week. On February 10, 2009, defendant appeared before Judge O'Malley and told her that he had new evidence to support his Marsden motion. The court indicated it would take the matter under submission. On March 4, defendant appeared before the Honorable Richard Arnason and again indicated that he wanted a lawyer, but not one from the public defender's office. The court referred the matter to Judge O'Malley for appointment of counsel and indicated that defendant's case could be referred to a "Conflict Panel" if Judge O'Malley deemed defendant's concerns valid. On March 16th, Judge O'Malley acceded to defendant's request; on March 23, 2009, Paul Feuerwerker was appointed from the Conflict Panel to represent defendant. On May 5, the court scheduled trial for July 20, 2009.
On June 24, 2009, Feuerwerker filed a motion to suppress evidence under section 1538.5. On July 15 the court heard and denied the motion, The following day, defendant appeared before Judge Landau for a further readiness conference and informed the court that he wanted to make a Marsden motion, seeking to replace Feuerwerker. The court then began a Marsden hearing and continued the matter to July 20. Defendant expressed concerns about Feuerwerker's handling of the section 1538.5 motion and his ability to effectively represent him, given Feuerwerker's residency in Contra Costa County. The court denied the Marsden motion, finding that Feuerwerker had acted as a reasonably competent attorney. Feuerwerker then informed the court that defendant had completed a Faretta waiver and wanted to represent himself. The prosecution objected to the Faretta motion as untimely and counsel on both sides indicated that they were ready to proceed. After admonishing defendant about the risks of self-representation, the trial court explained to defendant that he would be required to go to trial the following day if the court granted his Faretta motion. Defendant stated that he was ready to proceed to trial but also indicated that he would "move -- according to what I think I need right now" for a continuance even if the Faretta motion were granted. The court denied the Faretta motion, finding that there was no good cause for the late request, that defendant was not ready to proceed without counsel, and that defendant was trying to further delay trial proceedings.
The next day, July 21, 2009, defendant appeared before the Honorable John H. Sugiyama for the start of trial. Defendant asked the court to review his Marsden motion and to consider whether he could represent himself. The court addressed the Faretta matter first, noting that Judge Landau had already denied that motion. The court asked defendant, "Then with respect to the Faretta part of what you are bringing up right now . . . are you returning to the part about you representing yourself?" Defendant replied, "No. I was explaining to the court that Judge Landau based her decision on that I had filed repeated Faretta's." The court indicated that it would not revisit Judge Landau's denial of the Faretta motion. The court then held a Marsden hearing and denied defendant's request for the appointment of a different attorney. The following day defendant filed renewed Faretta and Marsden motions. He again renewed his Marsden motion on July 27, 2009, during trial. The court held another Marsden hearing and denied the motion.
The jury found defendant guilty on all counts other than for receiving stolen property and the court sentenced him to a term of five years and eight months, with credit for 489 days time served plus 244 days for good conduct. Defendant then moved for substitution of counsel so that he could make a new trial motion based on ineffective assistance of his trial counsel. After conducting another Marsden hearing, the court granted defendant's request. Defendant's new attorney, Ali Saidi, filed a new trial motion based on the trial court's denial of defendant's earlier Marsden and Faretta motions. On October 23, the court denied the new trial motion. On October 27, defendant made another Faretta motion for the purpose of filing a notice of appeal and possibly a writ. Defendant indicated that he might want to file another Marsden motion and the court, the Honorable Gregory Caskey, conducted a Marsden hearing and denied the motion. On November 20, ...