Filed 3/24/14 P.v. Gallow CA5

                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                    F065630

                   v.                                             (Madera Super. Ct. No. MCR028437)

LUCRETIA GALLOW,                                                                  OPINION

         Defendant and Appellant.


                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Madera County. Roger L.
Wayne and David D. Minier, Judges.† (Retired judges of the Madera County Sup. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
         Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Jeffrey
Grant, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-



        Before Levy, Acting P.J., Kane, J., and Poochigian, J.
†     Judge Wayne presided over appellant’s motion to substitute her trial counsel.
Judge Minier presided over appellant’s trial and sentencing hearing.
                                    INTRODUCTION
        On July 30, 2009, appellant, Lucretia Gallow, was charged in a consolidated first
amended information with feloniously carrying a deadly weapon while in custody (Pen.
Code, § 4502, subd. (a), count 1),1 felonious battery of a nonprisoner while incarcerated
in state prison (§ 4501.5, count 2), and misdemeanor possession of narcotics
paraphernalia (Health & Saf. Code, § 11364, subd. (a), count 3). The information further
alleged appellant had a prior serious felony conviction within the meaning of the three
strikes law and a prior prison term enhancement.
        On July 20, 2011, appellant requested a Marsden2 hearing. During the hearing,
appellant appeared to request the right of self-representation (Faretta v. California (1975)
422 U.S. 806 (Faretta)). The court later determined that appellant sought not to change
her counsel but to have him make a motion pursuant to Pitchess v. Superior Court (1974)
11 Cal.3d 531 (Pitchess). The court granted defense counsel’s motion for a continuance
to file a Pitchess motion. On June 4, 2012, the trial court heard and denied appellant’s
Pitchess motion.
        At the conclusion of a jury trial on June 21, 2012, appellant was found guilty of
counts 1 and 3. Appellant waived her right to a jury trial on the special allegations. The
trial court found the prior serious felony allegation and prior prison term enhancements
true.
        The trial court sentenced appellant to the midterm of three years on count 1,
doubled under the three strikes law to six years. The court imposed a consecutive term of
one year for the prior prison term enhancement for a total prison sentence of seven years.



1       Unless otherwise noted, all statutory references are to the Penal Code.
2       People v. Marsden (1970) 2 Cal.3d 118 (Marsden).


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Appellant was awarded total custody credits of 226 days. Appellant contends the trial
court erred in denying her Faretta motion.3 We disagree and affirm the judgment.
               HEARING ON MARSDEN AND FARETTA MOTIONS
       The court conducted a closed hearing to determine why appellant sought to replace
her trial counsel, Mr. Fitzgerald. When asked if she wanted to replace Fitzgerald,
appellant initially said “yes and no.” Appellant stated she wanted to represent herself as
she felt she was being railroaded because she “wrote up a lot of officers” while she was
incarcerated. Appellant said she wanted her attorney relieved. When asked whether she
had any legal training, appellant conceded she did not know much.
       The court explained that appellant would be going up against an experienced
litigator and if she did not know how to present evidence and object to evidence offered
by the prosecutor, she would “be slaughtered.” The court recommended against appellant
representing herself. The court suggested that for the moment, they forget about
appellant representing herself.
       The court then focused on why appellant thought Fitzgerald had not properly
represented her. Appellant replied she wanted to bring in the disciplinary files of the
officers who had arrested her during her incarceration. Appellant also wanted to see
pictures of the battery she had allegedly caused. The court then asked appellant if she
wanted Fitzgerald to bring in disciplinary reports of those who had accused her.
Appellant replied, “Amen. Yes sir.”
       The court stated that appellant was asking for a Pitchess motion. Fitzgerald stated
that they could seek a Pitchess motion but it would delay the trial up to six weeks. The
court asked appellant if this was her main objection. She replied affirmatively.


3      Because the facts of appellant’s offense are not relevant to the issue she raises in
her appeal, we do not recount them.


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Fitzgerald explained that he was willing to continue representing appellant. Fitzgerald
noted there had been some communication problems caused by transportation issues and
appellant’s unstable living environment. Fitzgerald did not believe these issues were
appellant’s fault.
       The court confirmed with appellant that she sought to pursue a Pitchess motion.
The court explained to appellant that Fitzgerald would still be her counsel if the court
denied the Marsden motion. The court also indicated its willingness to grant a
continuance so Fitzgerald could pursue the Pitchess motion. Appellant stated she was in
accord with this outcome and did not indicate any other problems. The court denied the
Marsden motion. The court granted appellant’s motion for a continuance.
                             ALLEGED FARETTA ERROR
       Appellant argues the trial court summarily set aside her motion to represent
herself, stating in effect that they should forget about appellant representing herself right
now. Appellant contends the trial court erred in failing to complete a full Faretta
hearing, the error is structural, and her conviction must be reversed.
       In Faretta, the United States Supreme Court held that a defendant must be free to
decide whether to represent himself or herself even if to do so is to the defendant’s
detriment. When a defendant makes a timely motion to proceed pro se, a trial court must
permit the defendant self-representation after ascertaining that the defendant has
voluntarily and intelligently elected to do so. This determination is made irrespective of
whether the defendant’s choice is unwise. The defendant’s technical legal knowledge is
irrelevant to the trial court’s determination. Erroneous denial of a Faretta motion is
reversible per se. (People v. Butler (2009) 47 Cal.4th 814, 824 (Butler).)
       There are, however, limits to the right to act as one’s own attorney. The right is
not absolute. A judge can terminate self-representation by a defendant who deliberately
engages in obstructionist conduct. It is settled that a defendant can waive the Faretta

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right by failing to make a timely request, or by abandonment and acquiescence in
representation by counsel. A Faretta request can be denied when a defendant makes an
equivocal or passing request out of anger or frustration. (Butler, supra, 47 Cal.4th at p.
825.)
        When confronted with a request for self-representation, trial courts must advise the
defendant of the dangers and disadvantages of self-representation. Unlike the right to
representation by counsel, a defendant waives the right to self-representation unless he or
she articulately and unmistakably demands to proceed pro se. Courts should draw every
reasonable inference against waiver of the right to counsel, especially the
postarraignment right to counsel. “‘In determining on appeal whether the defendant
invoked the right to self-representation, we examine the entire record de novo.
[Citation.]’ [Citation.]” (People v. Stanley (2006) 39 Cal.4th 913, 932 (Stanley).)
        A Faretta motion made out of annoyance, frustration, or a temporary whim is not
unequivocal, even when the defendant says he or she seeks self-representation.
Equivocation is broader than reference only to speech in the context of the Sixth
Amendment. It takes into account conduct and other expressions of intent. (Stanley,
supra, 39 Cal.4th at p. 932.) In Stanley, the Supreme Court held that the defendant made
a request for self-representation during a renewed Marsden hearing, but did so out of
apparent annoyance or frustration with his first trial attorney. Thereafter, the defendant’s
comments demonstrated his belief in a continuing right to representation for counsel and
the court concluded the defendant had waived his Faretta right. (Stanley, supra, 39
Cal.4th at pp. 932-933.)
        Although appellant initially stated she wanted to represent herself during the
Marsden hearing, the trial court’s careful questioning of appellant made it clear that what
she actually sought was a Pitchess hearing on the personnel records of the arresting
officers. Appellant’s reply to the trial court’s understanding that appellant wanted a

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Pitchess hearing was “[a]men.” When asked if her main objection to her counsel was her
desire for a Pitchess hearing, appellant replied affirmatively. Appellant’s counsel, Mr.
Fitzgerald, stated he was willing to pursue a Pitchess motion as long as the court was
willing to grant a continuance of the trial date. The court indicated its willingness to do
so.
       The court confirmed from appellant that she sought to pursue a Pitchess motion.
The court explained to appellant that Fitzgerald would still be her counsel if the court
denied the Marsden motion. The court also indicated its willingness to grant a
continuance so Fitzgerald could pursue the Pitchess motion. Appellant stated that she
was in accord with this outcome and did not indicate any other problems.
       From this record, it is clear that appellant’s Faretta request was out of annoyance
or frustration because she wanted her counsel to bring a Pitchess motion. Appellant had
no other apparent quarrel with Fitzgerald and did not ultimately make an unequivocal
request to represent herself. The trial court got to the gravamen of appellant’s actual
concern, granted a continuance of the trial, and later held a Pitchess hearing. On this
record, we find that by the end of the Marsden hearing appellant had no outstanding
request for self-representation and the trial court did not commit Faretta error.
       Also, like the Stanley case, appellant never renewed her request for self-
representation and appeared to have a continuing belief in her constitutional right to the
appointment and assistance of counsel. Thus, appellant has also waived any claim of
Faretta error.
                                      DISPOSITION
       The judgment is affirmed.




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