IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
December 16, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
OSCAR MAURICE PEARSON, DEFENDANT AND APPELLANT.
(Contra Costa County Super. Ct. No. 050900589)
The opinion of the court was delivered by: Pollak, Acting P.J.
P. v. Pearson CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, the court noted and denied defendant's motion for reconsideration of the new trial motion and petitions for writs of habeas corpus and error coram nobis, all filed by defendant personally. Defendant timely appealed on December 4, 2009.*fn6
I. Faretta Motions
Defendant first argues that the trial court's denial of his Faretta motions on July 20, 2009, and July 21, 2009, violated his Sixth Amendment right to self-representation.
"[U]nlike the right to be represented by counsel, the right of self-representation is not self-executing." (People v. Marshall (1997) 15 Cal.4th 1, 20.) "A trial court must grant a defendant's request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial." (People v. Stanley (2006) 39 Cal.4th 913, 931-932.)
We first determine whether defendant's motion was timely. (People v. Hernandez (1985) 163 Cal.App.3d 645, 654.) The trial court's determination that the July motions were untimely must be evaluated as of the date and under the circumstances under which the court made its ruling. (People v. Marshall, supra, 15 Cal.4th at p. 25, fn. 2.)
The Faretta motions that defendant argues should have been granted were filed on the day on which trial was scheduled to commence, almost 13 months after he was originally charged, six months after the filing of the information, and approximately three and a half months after he told Judges Arnason and O'Malley that he no longer wanted to represent himself and wanted new counsel to be appointed. Defendant contends that the July 20 motion nonetheless was timely because trial had not yet commenced. We do not agree. While a Faretta motion made on the day of trial is not necessarily untimely if made at the earliest opportunity (see People v. Herrera (1980) 104 Cal.App.3d 167, 171, 173-176; People v. Tyner (1977) 76 Cal.App.3d 352, 354-355),*fn7 "a defendant should not be allowed to misuse the Faretta mandate as a means to unjustifiably delay a scheduled trial or to obstruct the orderly administration of justice. For example, a defendant should not be permitted to wait until the day preceding trial before he moves to represent himself and requests a continuance in order to prepare for trial without some showing of reasonable cause for the lateness of the request. In such a case the motion for self-representation is addressed to the sound discretion of the trial court. . . ." (People v. Windham (1977) 19 Cal.3d 121, 128, fn. 5.) "[T]he decision whether to grant self-representation status to a defendant is discretionary when the motion is made within days of the trial date." (People v. Howze (2001) 85 Cal.App.4th 1380, 1397.)
Here, not only did defendant wait until the eve of trial to make the motion underlying this appeal, but he had previously made such a motion and, after it had been granted, retracted his request to represent himself. His dissatisfaction with appointed counsel was the subject of numerous Marsden requests. Defendant had an extended period to consider whether or not he wished to represent himself. Neither the denial of his section1538.5 motion on July 15, nor his dissatisfaction with his newly appointed attorney over the manner in which he presented that motion, nor the denial of his Marsden motion to replace that attorney provide a justification for the last-minute request to again represent himself. Given that defendant previously made one Faretta motion that had been granted, the trial court was fully warranted in considering untimely his second motion for the same relief almost a year later and on the day of trial.
An untimely request for self-representation "is addressed to the sound discretion of the trial court, which should consider such factors as the quality of counsel's representation of the defendant, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay that reasonably might be expected to follow the granting of such a motion." (People v. Bradford (1997) 15 Cal.4th 1229, 1365 [citations omitted].) All of these factors support the denial of the untimely motions in this case. Despite the number of defendant's Marsden motions, there is nothing in the record to suggest that defendant's previous counsel provided substandard representation. Although finally succeeding in obtaining the appointment of a private attorney, he promptly directed his Marsden motions to his new counsel. The trial court held numerous Marsden hearings regarding the basis for defendant's dissatisfaction with both Zephra Brewer and Paul Feuerwerker and found no basis to remove either attorney. Defendant does not question the propriety of the rulings denying his many Marsden motions.
On July 20, the court informed defendant that it would grant his Faretta motion only if he would not seek a continuance at trial. Defendant did not assent, instead reiterating his desire for a continuance. The court reasonably considered the Faretta motion to be a dilatory tactic, and remained unconvinced that defendant was ready to proceed to trial despite his assertions to that effect.
Moreover, defendant's request to represent himself was never unequivocal. On July 21, 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." In context, defendant's numerous Marsden and Faretta motions demonstrate defendant's desire to play " 'the Faretta game' " by "juggling his Faretta rights with his right to counsel interspersed with Marsden motions." (People v. Williams (1990) 220 Cal.App.3d 1165, 1170.)
Under all the circumstances, the trial court clearly did not abuse its discretion in denying defendant's last-minute Faretta motions after having denied his most recent Marsden motion. "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. A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied." (People v. Marshall, supra, 15 Cal.4th at p. 23.)
II. Custody Credit
Defendant was awarded presentence conduct credits under the former version of section 4019, which provided that prisoners confined in county jail who had "satisfactorily complied with the reasonable rules and regulations" and had not "refused to satisfactorily perform labor as assigned" are deemed to have served six days for every four days in custody. (Former § 4019, subds. (c), (d) & (f).) In October 2009, the Legislature amended the section, effective January 25, 2010, to increase the rate at which qualified prisoners accrue presentence conduct credit, so that a qualified inmate receives four days of credit for every two days of actual custody. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.)
Defendant contends that the 2009 amendment to section 4019 applies retroactively to his case because his conviction was not final*fn8 on January 25, 2010, when the amendment became effective. Defendant asserts that under the amendment he is entitled to an additional 244 days of conduct credit.*fn9
There is a division of authority among the appellate courts as to whether the 2009 amendments to section 4019 are retroactive and apply to prisoners who had been sentenced at the time the amendments went into effect but whose convictions were not yet final. Our Supreme Court has granted review in cases involving this issue,*fn10 including a case from our court, People v. Norton (2010) 184 Cal.App.4th 408, review granted August 11, 2010, S183260. In Norton, the "primary question before us . . . [was] whether the general presumption of prospectivity or the rule in [In re Estrada (1965) 63 Cal.2d 740][*fn11 ] controls our construction of section 4019, as amended." (Norton, at p. 416.) After reviewing Estrada and its progeny, we stated that "if section 4019, as amended, constitutes an 'amendatory statute' that 'mitigates punishment' within the meaning of Estrada, it will be given retroactive effect unless the Legislature has 'clearly signal[ed] its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent.' " (Norton, at p. 417.) We concluded that because section 4019, as amended, mitigates punishment by reducing the sentence of qualified prisoners, Estrada controls.
Under In re Estrada, supra, 63 Cal.2d 740, "we deem the Legislature to have found the sentences reduced by the additional conduct credit 'sufficient to meet the legitimate ends of the criminal law' for qualified prisoners. [Citation.] The same 'inevitable inference' follows: the Legislature intended the shorter sentences to apply retroactively." (People v. Norton, supra, 184 Cal.App.4th at p. 418.) Pending a definitive resolution of the issue by our high court, we hold that the 2009 amendment to section 4019 applies retroactively.
The matter is remanded to the trial court with instructions to recalculate appellant's custody credits in a manner consistent with this opinion and to deliver a
certified copy of an amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other regards.
We concur: Siggins, J. Jenkins, J.