Filed 7/23/15 P. v. Harmon CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A141483
v.
MARCUS DESHAWN HARMON,                                               (Alameda County
                                                                     Super. Ct. No. 172503)
         Defendant and Appellant.


                                                             I.
                                                INTRODUCTION
         Approximately one month prior to the scheduled date for his burglary trial,
defendant Marcus Deshawn Harmon (appellant) asked to represent himself at trial
pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta). During the hearing on
his request, appellant acknowledged his request arose because he wanted additional time
for his family to raise the money to retain private counsel to represent him instead of
proceeding to trial with his court-appointed attorney. The trial court concluded
appellant’s self-representation request was equivocal and denied appellant’s Faretta
motion on that basis. We affirm.
                                                            II.
                                        FACTUAL BACKGROUND
         Appellant was charged with one count of first degree burglary (Pen. Code, § 459)
with the enhancement of a person being in the residence (Pen. Code, § 667.5,




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subd. (c)(21)).1 It was also alleged that appellant had suffered two prior felonies (Pen.
Code, § 667.5, subd. (c)), one prior strike felony (Pen. Code, §§ 1170.12, subd. (a), 667,
subd. (c)), and seven prison priors (Pen. Code, § 667.5, subd. (b)).
       On February 5, 2014, a jury found appellant guilty as charged. On February 10,
2014, after a court trial, all seven felony priors were found true. On April 4, 2014, the
trial court sentenced appellant to state prison for 14 years. On April 7, 2014, appellant
filed a timely notice of appeal.
                                            III.
                                      DISCUSSION
       A. Trial Court’s Denial of Appellant’s Faretta Motion
       On December 18, 2013, approximately 40 days before the scheduled trial date of
January 27, 2014, appellant presented a motion seeking to represent himself at trial.
Appellant did not complete the written motion because he had fractured his hand a few
months prior and it was preventing him from writing. The court read the form to
appellant admonishing him of his rights and the consequences of self-representation.
       The following discussion ensued:
       “THE COURT: All right. First of all, do you understand that you have a right to a
speedy and public trial by jury?
       “[APPELLANT]: Yes.
       “THE COURT: Do you understand that you have a right—and this applies
whether you represent yourself or whether you are represented by an attorney—
       “[APPELLANT]: Right.
       “THE COURT:—to utilize the process of this Court to subpoena any witness or
any records that you may need on your own behalf or in your defense?
       “[APPELLANT]: The first part I understand, when you said in the event that I go
pro per. I understand that I have a right to utilize the process of this Court to subpoena


       1
         We have not summarized the evidence underlying appellant’s conviction
because it is not material to the outcome of his appeal.


                                             2
any witness or any records that I may need in my own behalf or in my defense. But in
the event that I, you know, wanted representation from an attorney and you know, I’m
not getting that proper representation, then I don’t understand that right—
       “THE COURT: Well—
       “[APPELLANT]:—to subpoena witnesses.
       “THE COURT: In either case, if an attorney represents you, the same rights
apply. In other words, in the real world, sometimes defendants and attorneys get along;
sometimes they don’t get along.
       “[APPELLANT]: Right.”
       The trial court went on to explain other matters regarding the right of self-
representation. The trial court then asked appellant if it was his “ ‘personal desire that
you be granted permission by me to proceed in propria persona, acting as your own
attorney.’ ” Appellant replied, “Yes.” Further discussion ensued.
       “[APPELLANT]: Yes, I do understand. I understand the totality of the
circumstances, you know, and everything as far as representing myself and going to trial
on my own or whatever. But right now at this moment, I feel like I’m kind of like being
forced into going pro per right now, just, you know, until a couple of months from now,
maybe my family can get together some money to hire me an attorney. But to make a
long story short, yes, I do understand the question.
       “THE COURT: Well, if your family doesn’t hire you an attorney, and you find
yourself in the position of being in the middle of a jury trial—
       “[APPELLANT]: I mean, things do happen, but I’m confident in my family
getting together some money to hire me an attorney, but I need a couple of months.
       “THE PROSECUTOR: . . . We have a jury trial date set for January 27th, 2014,
and this was a date—the reason I’m here is because the Court in Department 11 sent the
case here for the Faretta, and also indicated that the trial date should be maintained. So I
don’t know if a few months to hire an attorney is going to help the situation, given the
fact that we have a trial date that I would object to moving, and I know Judge Delucchi



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also had strong feelings about maintaining. It’s my understanding through the DA, who
was in there, that he has feelings about maintaining that trial date.
        “[APPELLANT]: And I would like to object to that, Your Honor. If possible, I
could waive time; put in another waiver, and just, you know, give me a little more time to
hire an attorney, if possible.
        “THE COURT: Well, you understand that that’s up to the judge in Department 11
as to whether he will allow the trial date to be changed, even if you do waive time.
        “[DEFENSE COUNSEL]: Judge Delucchi indicated today that he’s not moving
that trial date.
        “THE COURT: . . . Do you understand that you could substitute in an attorney
even if Ms. Silvaggio is representing you? In other words, seems to me that it would be
safer for you to have Ms. Silvaggio represent you, and then if your family gets an
attorney for you, fine; that attorney can be substituted in. But if something goes wrong
and that doesn’t happen, then you at least have an attorney once you are in the trial. Do
you see what I mean?
        “[APPELLANT]: That makes sense. I understand.
        “THE COURT: Okay, Well I’m going to find that there is not unequivocal waiver
or motion to represent himself in this case, so the motion under Faretta is denied. The
January 27th jury trial date will be maintained.
        “[DEFENSE COUNSEL]: Your Honor, we would like to set an intervening D & S
[sic] date. I’m requesting, perhaps, January the 10th. Is that okay?
        “THE COURT: Okay. January 10th for D & S [sic] in Department 11.
        “[DEFENSE COUNSEL]: Yes.
        “[APPELLANT]: Can I say one more thing?
        “DEFENSE COUNSEL: I’m going to advise my client not to speak.
        “[APPELLANT]: It’s not pertaining to my actual case. It’s pertaining to this
motion.
        “THE COURT: Well, I’ve concluded the motion, so I’m not going to change my
mind about that.


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       “[APPELLANT]: God bless you. You have a good day.”
       Appellant did not renew his request to proceed in pro. per. during the underlying
proceedings, including his trial, at which he was represented by appointed counsel.
       B. Argument on Appeal
       On appeal, appellant makes a single contention: “The court’s denial of [his]
Faretta motion was reversible error.” In Faretta, the Supreme Court held, “forcing a
lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he
truly wants to do so.” (Faretta, supra, 422 U.S. at p. 817.) Accordingly, “[o]nce a
defendant proffers a timely motion to represent himself, the trial court must proceed to
determine whether ‘he voluntarily and intelligently elects to do so . . . . If these
conditions are satisfied, the trial court must permit an accused to represent himself
without regard to the apparent lack of wisdom of such a choice and even though the
accused may conduct his own defense ultimately to his own detriment.’ [Citations.]”
(People v. Joseph (1983) 34 Cal.3d 936, 943, italics added.) Given the importance of the
countervailing Sixth Amendment right to an attorney, however, courts are to indulge
every reasonable inference against a waiver of counsel’s assistance. (People v. Boyce
(2014) 59 Cal.4th 672, 703 (Boyce); People v. Marshall (1997) 15 Cal.4th 1, 20
(Marshall).)
       On appeal of a ruling under Faretta, we review the entire record de novo to
determine whether the invocation of the right of self-representation satisfies these
requirements, even where the trial court has failed to conduct a full and complete inquiry.
(Marshall, supra, 15 Cal.4th at p. 24.) If the trial court’s stated reason for denying a
Faretta motion is found to be improper, the ruling still will be upheld if the record as a
whole establishes the motion could have been denied on an alternative ground. (People
v. Dent (2003) 30 Cal.4th 213, 218 (Dent).) If erroneous, however, the denial of a proper
Faretta request is reversible per se. (Boyce, supra, 59 Cal.4th at p. 702.)
       In this case, the trial court denied appellant’s Faretta motion, finding it was
equivocal. Appellant claims this was erroneous, arguing the “key moment” in his Faretta
request was at the very beginning, when the trial court asked him if he wished to


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represent himself, and he “unequivocally and unambiguously stated” that he did. We
disagree.
       Our Supreme Court’s most thorough exploration of the meaning of equivocation
in this context occurred in Marshall. As the court initially observed, “the high court’s
emphasis in [Faretta] on the defendant’s knowing, voluntary, unequivocal, and
competent invocation of the right suggests that an insincere request or one made under
the cloud of emotion may be denied.” (Marshall, supra, 15 Cal.4th at p. 21.) With
apparent approval, the court noted other courts had “declared that a motion made out of a
temporary whim, or out of annoyance or frustration, is not unequivocal” and held “a court
‘properly may deny a request for self-representation that is a “momentary caprice or the
result of thinking out loud.” ’ [Citation.]” (Ibid.) In summation, the court concluded, “in
order to protect the fundamental constitutional right to counsel, one of the trial court’s
tasks when confronted with a motion for self-representation is to determine whether the
defendant truly desires to represent himself or herself. [Citations.] . . . [T]he 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.” (Id. at p. 23,
italics added.)
       Cases in which a defendant was found to have made an equivocal motion for self-
representation generally involve a defendant whose request is conditional (e.g., People v.
Valdez (2004) 32 Cal.4th 73, 98–99) or not clearly and affirmatively stated. (See, e.g.,
People v. Marlow (2004) 34 Cal.4th 131, 147 [defendant’s question, “ ‘Is it possible’ ”
for him to represent himself, construed as a request for information]; People v. Danks
(2004) 32 Cal.4th 269, 295–297 [defendant made “fleeting statements” about
representing himself in the midst of “diatribes” about his treatment].) Often such
requests arise in the context of motions for substitution of appointed counsel under
People v. Marsden (1970) 2 Cal.3d 118 (Marsden), when defendants frustrated by their
relations with their attorneys express the generalized sentiment that even self-


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representation would be preferable to continuing with current counsel. (E.g., People v.
Stanley (2006) 39 Cal.4th 913, 932–933; People v. Roldan (2005) 35 Cal.4th 646, 678,
683–684, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421
& fn. 22 [during hearing on Marsden motion, defendant said, “ ‘I’ll be my own lawyer if
he is going to be like that.’ [(Italics omitted.)]”].)
       After making a de novo review of the record, we agree with the trial court that
appellant’s statements did not represent an unequivocal and sincere invocation of the
right of self-representation. Although appellant initially stated he wanted to represent
himself, the trial court’s careful questioning made it clear that what appellant actually
sought was additional time for his family to raise the necessary funds to hire private
counsel to represent him in his upcoming trial. In short, the record shows appellant’s true
desire was different representation and not self-representation.
       We have cited numerous cases standing for the proposition that a defendant’s
invocation of the right of self-representation is not considered unequivocal when
motivated simply by dissatisfaction with the defendant’s current attorney. (See People v.
Lopez (1981) 116 Cal.App.3d 882, 889–890 [Faretta request “was at best equivocal and
hardly an unqualified waiver since he only wanted to represent himself if the court would
not give him another attorney”].)
       Appellant also complains the trial court precluded him from making his Faretta
request more unequivocal and foreclosed any realistic possibility that his request for self-
representation would be considered in the future. When appellant wanted to “say one
more thing” at the end of the hearing, the court indicated it did not wish to hear anything
further from appellant stating, “[w]ell, I’ve concluded the motion, so I’m not going to
change my mind about that.”
       Appellant’s assignment of error takes the trial court’s comment out of context and
ignores the entirety of the trial court’s previous discussion of appellant’s Faretta motion,
which we have set out at length in this opinion. Before the challenged comment, the trial
court engaged appellant in a lengthy dialogue to make certain he understood what a
Faretta request entailed. Reasonably deducing appellant was actually dissatisfied with


                                                7
his current representation, the trial court’s questioning revealed that appellant actually felt
that he was being “forced” into self-representation as the only means of delaying the trial
for a few months in order to allow his family to obtain sufficient funds to hire private
counsel. We find the trial court’s management of defendant’s Faretta motion provided
abundant opportunity for defendant to unequivocally state his request for self-
representation. Once the trial court denied appellant’s Faretta request as being
equivocal, its refusal to entertain further argument on the matter fell within the bounds of
the court’s inherent powers to control the proceedings.2 We find no Faretta error.
                                             IV.
                                      DISPOSITION
       The judgment is affirmed.




       2
          Consequently, Dent, supra, 30 Cal.4th 213, to which appellant compares this
case, is readily distinguishable. In Dent, the court unequivocally denied the defendant’s
Faretta motion by stating, “I am not going to let him proceed in pro. per. . . . . Not in a
death penalty murder trial.” (Id. at p. 217.) Thus, there was no point in renewing the
motion because making the request again would be futile. (Id. at p. 219.) Here, there
was nothing in the court’s remarks indicating submitting a new request for self-
representation at some other point in time would have been futile.


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                                _________________________
                                RUVOLO, P. J.


We concur:


_________________________
RIVERA, J.


_________________________
STREETER, J.




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A141483, People v. Harmon




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