NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

THE COURT*

It was alleged in a first amended information that appellant, Charles Conley Howell, committed robbery (Pen. Code, § 211)1 and petty theft after having suffered a conviction of a theft-related offense (§ 666), that he had suffered three prior serious felony convictions within the meaning of section 667, subdivision (a) and four "strikes,"2 and that he had served three separate prison terms for prior felony convictions (§ 667.5, subd. (b)). Pursuant to a plea agreement, appellant pled no contest to the section 666 charge and admitted one strike and four prior prison term enhancement allegations (§ 667.5, subd. (b)). The court imposed a prison term of 10 years.

On appeal, appellant contends the court erred in denying his Faretta motion3 for self-representation. We will affirm.

PROCEDURAL BACKGROUND

At the trial setting conference on January 5, 2010,4 after some discussion regarding setting the date for the readiness conference, appellant told the court he thought his constitutional rights were being violated because, he stated: "... time has been waived continuously. I've been here like, next month will be two years and nothing has been done here."

Moments later he told the court: "That's another thing, he [defense counsel Sean Howard] doesn't explain nothing to me. I'd like to defend my own self. I haven't seen a complaint against me. I haven't had a conference with him. I don't have nothing. Anything. No reports, anything."

The court stated it would set a hearing on the issue of whether appellant could represent himself and directed appellant to "think about that ...." Appellant responded, "Yeah, I thought about it. I need to see the evidence against me." The court asked appellant if he wanted a new lawyer appointed or if he wanted to represent himself. Appellant responded, "... it looks like I'll just be the same representing myself if I get a counsel that's not going to even come to see me ... and have a conference with me. I haven't seen evidence against me." The court set the hearing on appellant's motion to represent himself for January 7, and set the readiness conference for February 22. At the outset of the hearing on January 7, the court asked appellant for some "clarification" as to his "position ... as far as being represented by an attorney." Appellant told the court that his counsel, Mr. Howard, was not "properly represent[ing]" him, and he wanted an attorney who would give him his "undivided attention or at least come see [him]." Shortly thereafter, appellant asked the court to dismiss the charges against him. When the court stated it would not do that, appellant asked for assurances that he would have an attorney who is "going to help me." The court responded that it did not know what appellant's "expectations" were and stated, "I[] take[] it that you want legal representation." Appellant responded, "Yes, I do." At that point, the court stated it would conduct a Marsden hearing.5 The court did so, and at that hearing, appellant indicated he was "asking for a different lawyer than Mr. Howard" based on "[i]neffectiveness of counsel." Appellant then stated his specific complaints, Howard responded, and the court denied appellant's Marsden motion.

On February 22, at the outset of the readiness conference, with appellant and the prosecutor present but Howard not present, the court stated that the prosecutor had indicated that appellant wanted to represent himself, and asked appellant if that was true. In a rambling response, appellant again asked the court to dismiss the charges and asserted that his rights had been violated in various ways. At one point, the court asked appellant if he wanted to represent himself. Appellant responded, "I'd like to proceed. I'd like to proceed with Mr. Howard." The court then sought to confirm that appellant wanted to "go to trial with Mr. Howard," and appellant responded, "... he's been really ineffective, but yeah, if that's all I have."

The court then told appellant that Howard was in another jury trial in a case that had "priority" over appellant's case, and that Howard would be available for appellant's trial "probably ... next week." Appellant responded that it was not his fault Howard was in another trial, and that his (appellant's) case was "very, very important ...."

The court then reiterated that appellant's case would go to trial "very soon," in all likelihood the following week, to which appellant responded: "I'd just like to defend my own self, then." The following colloquy then took place:

The court then told appellant representing himself would be a "bad idea." Appellant responded that the prosecution had the burden of proof at trial, and in response to the court's statement that it would be better to have an experienced attorney, appellant stated the he was not guilty of the charges and that he was a "victim." The court reiterated its admonishment as to the importance of appellant having an experienced attorney, to which appellant responded: "With an attorney—I have a better chance by myself than I have with an attorney because he has proven to be nothing except ineffective. He has never once investigated any—"

At that point the prosecutor interjected, "... if this is going to be a Marsden motion, I'm going to step outside." The court then noted that appellant had earlier stated he wanted a new attorney and asked appellant if that was still the case. The following exchange ensued:

Shortly thereafter Howard entered the courtroom, at which point an off-the-record discussion occurred, after which, back on the record, the court, in summarizing previous events, stated "[appellant] had made some indication out in open court that he wanted to have a Faretta hearing to represent himself so Ms. Carlson [the prosecutor] was here. It began to evolve, I guess I would say, into a Marsden type of hearing and so ... we were talking very briefly about, you know, having a new attorney."

The court further stated the following. Appellant had complained about Howard's performance and "indicated at various times that he wanted to represent himself." The court had "tried to suggest" to appellant that self-representation was not "a good idea given the fact that he appears to be facing a 25 to life sentence" and that appellant "hasn't indicated" that he had the "knowledge or experience" he would need to "conduct a jury trial on his own ...."

There followed a discussion in which appellant argued the case should be dismissed because he had been denied his right to a speedy trial. The court reiterated that the trial "cannot start until Mr. Howard is finished with the trial he's in" and ruled, "I'm going to find that there are no grounds to relieve Mr. Howard of representation here ...." The court noted that "we started out on the road on Faretta motion," but appellant "at various times .... changed the tack and wanted to ... simply get another attorney." The court told appellant his trial would begin in approximately one week when Howard was finished with the case he was currently trying.

Appellant told the court that he was "not waiving time" and that many of his constitutional rights were being violated. The court told appellant that it was in "[appellant's] best interest to go to trial with Mr. Howard," to which appellant responded: "I'd rather just defend myself tomorrow because I know that I'm not guilty of these charges and the burden of proof is on the prosecutor to prove these allegations against me." The court responded that appellant had never stated his "qualifications, experience in being able to conduct your own jury trial," and stated, "I don't find that it's appropriate to have you represent yourself when you're facing a long sentence here." Over appellant's objection, the court set a readiness conference for March 1, 2010, and scheduled trial for the day after that.

DISCUSSION

Appellant contends the court erred by not permitting him to represent himself. Respondent counters that there was no error because appellant's Faretta motion was neither timely nor unequivocal. As we explain below, we conclude appellant's Faretta motion was not unequivocal, and was therefore properly denied.

The Right to Self-Representation

"Criminal defendants have the right both to be represented by counsel at all critical stages of the prosecution and the right, based on the Sixth Amendment as interpreted in Faretta [citation] to represent themselves." (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1001 (Lewis).) A trial court must grant a defendant's motion for self-representation, commonly called a Faretta motion, "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. [Citations.]" (People v. Stanley (2006) 39 Cal.4th 913, 931-932 (Stanley).)

"`[A] [Faretta] motion made out of a temporary whim, or out of annoyance or frustration, is not unequivocal—even if the defendant has said he or she seeks self-representation.' [Citation.]" (Stanley, supra, 39 Cal.4th at p. 932.) "Faretta's emphasis `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.'" (People v. Danks (2004) 32 Cal.4th 269, 295.) "`Equivocation, which sometimes refers only to speech, is broader in the context of the Sixth Amendment, and takes into account conduct as well as other expressions of intent.'" (Stanley, at p. 932.) All of a defendant's words and conduct are taken into consideration in determining whether defendant unequivocally invoked his right of self-representation. (People v. Marshall (1997) 15 Cal.4th 1, 23-26 (Marshall).) "Equivocation of the right of self-representation may occur where the defendant tries to manipulate the proceedings by switching between requests for counsel and for self-representation ...." (Lewis, supra, 39 Cal.4th at p. 1002.)

"[A] Faretta motion cannot be denied because of the seriousness of the charge." (People v. Hardy (1992) 2 Cal.4th 86, 196; accord, People v. Dent (2003) 30 Cal.4th 213, 218 (Dent) [trial court improperly denied the request for self-representation on the basis defendant was facing death penalty].) However, 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 that the motion could have been denied on an alternative ground. (Dent, supra, at p. 218.)

"[C]ourts must draw every inference against supposing that the defendant wishes to waive the right to counsel." (Marshall, supra, 15 Cal.4th at p. 23; accord, United States v. Weisz (D.C. Cir. 1983) 718 F.2d 413, 425-426 [court applies a "stringent standard" for judging the adequacy of the defendant's invocation because of the strong presumption against waiver of the right to counsel].)

Analysis

Appellant argues that his request on February 22 that he be allowed to represent himself, though conditional—he indicated he wanted to represent himself if he could not proceed to trial the following day—was unequivocal. He argues that once he made his request for self-representation after the court told him that Howard would not be available to try the case for approximately one week he "was not flip-flopping between choosing self-representation and asking for a new attorney." Rather, appellant argues, he was "steadfast" and "consistent[]" in his request that he be allowed to represent himself if the trial was to be continued, and the trial court "did not consider appellant's request equivocal, but treated it as `serious [and then] emphatically denied it.'"

However, a defendant's statements "do not constitute an unequivocal invocation of the right of self-representation simply because the trial court described the motion as one for self-representation ...." (Marshall, supra, 15 Cal.4th at p. 25.) As indicated above, we examine all of a defendant's words and conduct in assessing whether he has made an unequivocal invocation of the right of self-representation. And as also indicated above, it is of no moment that the trial court denied appellant's request for self-representation on an improper basis, i.e., that he lacked "qualifications" and "experience," and was "facing a long sentence ...." Here the record supports the conclusion that prior to and on February 22, appellant vacillated between wanting to represent himself and wanting an attorney to represent him. On January 5, he stated he wanted to represent himself at trial, but by January 7, he had changed his mind. And on February 22, prior to the hearing, he apparently indicated to the prosecutor his desire for self-representation, but again changed his mind when questioned by the court as to his wishes in that regard. Finally, moments after appellant told the court he wished to proceed with Howard as his attorney, and the court told him Howard was not immediately available, appellant changed his mind again and stated that if he had to wait for Howard's availability, he would forgo representation by counsel and represent himself. On this record, drawing every inference against supposing that appellant wished to waive his right to counsel, we conclude that appellant's expressions of his wish to represent himself, though adamant and repeated, were borne out of frustration at not being able to proceed to trial when he wanted to and, to some degree, out of frustration with his belief that he was being "treated unfairly" and with Howards's performance. Appellant's Faretta motion did not represent a carefully considered desire for self-representation.

The court's stated reasons for denying appellant's request for self-representation—that appellant lacked the experience or qualifications to represent himself and was facing a long sentence—do not, individually or in combination, justify denying the motion. Neither appellant's "experience" nor the length of possible sentence are relevant in deciding a Faretta request. Nevertheless, there was no Faretta error because appellant's request was not unequivocal.6

DISPOSITION

The judgment is affirmed.