Filed 7/24/24 P. v. Bowersock CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

MARK BOWERSOCK,

Defendant and Appellant.

 B324814

 (Los Angeles County

 Super. Ct. No. PA019046)

APPEAL from an order of the Superior Court of Los 

Angeles County, Daniel B. Feldstern, Judge. Affirmed.

Leonard J. Klaif, under appointment by the Court of 

Appeal, for Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Wyatt E. Bloomfield, Supervising 

Deputy Attorney General, and William H. Shin, Deputy Attorney 

General, for Plaintiff and Respondent.
2

In 1996, a jury convicted defendant Mark Bowersock 

(defendant) of first degree murder. Many years later, defendant 

petitioned for resentencing under Penal Code section 1172.6 

(former Penal Code section 1170.95).1 We are asked to decide 

whether to reverse the trial court’s order denying the petition

because the court did not grant defendant’s requests to relieve his 

appointed attorney under People v. Marsden (1970) 2 Cal.3d 118

and Faretta v. California (1975) 422 U.S. 806.

I. BACKGROUND

The Los Angeles District Attorney charged defendant with 

murdering Laurie Ann Prejean (Prejean), his former romantic 

partner. The District Attorney alleged defendant shot and killed 

her in retaliation for her testimony against him in a criminal 

proceeding. The District Attorney also charged defendant with 

robbing Prejean and burglarizing her home. 

In June 1996, a jury found defendant guilty of first degree 

murder and first degree residential burglary (the jury was unable 

to reach a verdict on the robbery charge). The jury also found 

true an allegation that defendant used a firearm when he 

committed both offenses and a special circumstance allegation 

that the murder was committed in retaliation for Prejean’s 

testimony. The trial court sentenced defendant to life without 

the possibility of parole. The judgment of conviction was affirmed

on direct appeal. 

In January 2022, defendant petitioned for resentencing 

pursuant to section 1172.6. Defendant requested the trial court 

1 Undesignated statutory references that follow are to the 

Penal Code.
3

appoint counsel, and the court appointed a deputy public 

defender to represent him. 

In support of his petition, defendant submitted a 

declaration stating he did not kill Prejean in retaliation for her 

testimony; instead, he claimed he had been released from custody 

as a result of her testimony. Defendant also claimed he harbored

no malice aforethought because he went to Prejean’s home only to 

return her tax statements and to pay his portion of shared utility 

bills. Defendant additionally asserted gunshot residue tests 

showed Prejean pulled the trigger of the murder weapon. 

The People opposed defendant’s petition. The People

argued defendant was ineligible for relief as a matter of law 

because the record of conviction (mainly, the jury instructions 

given at his trial) reveals he was not convicted pursuant to the

felony murder rule, the natural and probable consequences 

doctrine, or any other theory of imputed malice. 

In July 2022, the trial court held a hearing to ascertain how 

much time the defense needed to respond to the People’s

opposition. During the hearing, the court advised the parties it 

had received two written statements by defendant “relating to his 

legal representation for th[e] petition” and would need to address 

the statements ex parte with defense counsel. The court 

accordingly calendared what it described as an ex parte 

“‘Marsden hearing.’”

2

2 Before that hearing, defendant personally filed a reply to 

the People’s opposition and argued he would be entitled to relief 

following a complete evidentiary hearing if certain items of 

allegedly exculpatory evidence, which had been withheld from his 

trial, were produced. Defendant’s appointed attorney also filed a 

reply to the People’s opposition. That reply argued defendant 
4

The trial court held the “Marsden hearing” in September 

2022 (with only defendant and appointed counsel present). The 

court began by briefly describing the two letters it had received 

from defendant: the first of which was dated May 25, 2022, and 

entitled “Conflict of Interest with the Public Defender” and the 

second of which was dated June 10, 2022, and entitled “Marsden

Motion Conflict of Interest.” The letters asked the court to 

appoint a new attorney or allow defendant to retain counsel of his 

choosing. 

The court advised defendant that it believed he was not 

entitled to a Marsden hearing, to fire his court-appointed counsel 

without court approval, or to represent himself because the 

proceedings before the court were post-conviction. Nonetheless,

the court stated it would consider defendant’s request as a 

“Marsden-like motion.” 

The court gave defendant the opportunity to speak to the 

purported conflict of interest and defendant argued a conflict 

existed because, during his criminal prosecution, “the public 

defender’s office worked hand[-]in[-]hand with the district 

attorney’s office to cover up this evidence that proves [his] 

innocence.” In addition to alleged misconduct by his trial 

attorney, defendant claimed his current attorney was “against 

him” and had “made it clear she would not argue on [his] behalf 

in [his] best interest.” In questioning defendant about these 

assertions, the court inquired about recent events (including the 

statements he submitted in connection with his petition) and 

about more distant occurrences found in the court’s file, such as a 

had made the requisite prima facie showing for relief and urged 

the court to issue an order to show cause and hold an evidentiary 

hearing. 
5

post-conviction discovery request made in 2008 and the 

appointment of a lawyer who headed a post-conviction discovery 

unit not connected with the public defender’s office. 

After hearing from defendant and asking questions to 

better understand the basis of his concerns, the court invited

defendant’s appointed attorney to respond. Defense counsel, who 

was not involved in the representation of defendant at his earlier 

criminal trial, explained the steps she had taken on defendant’s 

behalf since being assigned to the case, including case research 

(i.e., reviewing trial transcripts, jury instructions, and closing 

arguments) and communicating with her client. She 

acknowledged defendant did not agree with her assessment that 

the “odds [we]re not in his favor” on the petition, but she asserted 

she had done everything possible to assess his petition and 

provide him with the best legal advice. Defense counsel added 

that she had explained to defendant how the facts of his case fit 

within the parameters of section 1172.6 multiple times and 

defendant indicated he understood her explanations. As for 

defendant’s claims of innocence, defense counsel stated she had 

advised defendant repeatedly to pursue those claims with a nonprofit innocence project. When asked directly by the court, 

counsel stated she had no conflict of interest in representing 

defendant. 

The trial court gave defendant a further opportunity to 

speak in light of defense counsel’s response. Defendant told the 

court that prior to Prejean’s death, the public defender’s office 

had represented Prejean in connection with an altercation she 

had with him and had “declared conflicts of interest” with 

defendant in the past. When the trial court observed that it had 

reviewed the case file from “top to bottom” and had found no 
6

record of a conflict of interest finding or even a notation that a 

potential conflict of interest had been raised during the trial 

proceedings, defendant offered nothing in reply. Instead, 

defendant repeated the claim that his appointed attorney told 

him he was not going to prevail on his petition. 

The trial court ruled that there was no conflict of interest 

that would warrant relieving the public defender’s office from 

representing defendant and denied defendant’s request to relieve 

his attorney. 

The court then turned to defendant’s expressed interest in 

retaining private counsel. Defendant told the court that a friend 

was actively looking for an attorney to represent him and 

requested a 30-day continuance of the prima facie hearing on his 

section 1172.6 petition. In view of the fact that his petition had 

been pending for almost nine months, the court expressed 

reluctance to continue the matter. Defense counsel, however,

reminded the court that this was defendant’s first request for a 

continuance to attempt to find retained counsel, and the court 

thereafter agreed to the requested continuance. In addition, the 

court held open the possibility for a further continuance to allow 

private counsel to get up to speed on the petition if he or she 

promptly advised the court of his or her retention. 

Less than two weeks before the continued prima facie 

hearing date, defendant filed a motion for “pro per status.” 

Defendant explained that he wanted to represent himself “only if 

I do not have my paid attorney hired in time for the Oct. 26, 2022 

prima facie hearing.” In his supporting declaration he reiterated 

the same position: “In the event I do not have an attorney hired 

by [October 26, 2022], I want to proceed with pro per status for 

my prima facie hearing . . . .” 
7

On October 26, 2022, the trial court held the continued 

prima facie hearing. Defendant was not present at the hearing 

and he had not retained private counsel. He continued to be 

represented by the appointed deputy public defender. 

Based on the record of conviction, in particular the jury 

instructions, which the trial court reviewed in some detail on the 

record, the court found defendant was “not convicted of murder 

under the felony murder rule or the natural and probable 

consequences doctrine or any other theory under which malice is 

imputed to a person solely on that person’s participation in a 

crime.” The court found “defendant was convicted under a 

currently valid theory of murder as a direct perpetrator of the 

willful, deliberate, and premediated murder of Laurie Ann 

Prejean,” and ruled he was, as a matter of law, ineligible for relief 

under section 1172.6. 

The court also addressed defendant’s self-representation 

request during the same hearing and explained its reasons for 

declining to relieve defendant’s appointed attorney. The court 

stated defendant had made repeated representations over many 

months that he was in the process of retaining private counsel, 

but no such attorney had contacted the court in advance of the 

hearing. In addition, in view of defendant’s submissions alleging 

collusion between defense counsel and the prosecution in the 

willful hiding of exculpatory evidence during his trial, the court 

concluded it was in defendant’s best interests that he be 

represented by a trained lawyer. The court also “note[d], just 

parenthetically,” that under Martinez v. Court of Appeal of Cal., 

Fourth Appellate Dist. (2000) 528 U.S. 152, a defendant does not 

have a Sixth Amendment right to represent himself in a postconviction proceeding. 
8

II. DISCUSSION

Our Supreme Court has held “there is no federal 

constitutional right to counsel under subdivision (c) of section 

1172.6, and the right to counsel at [the prima facie] point in the 

proceedings is purely statutory.” (People v. Delgadillo (2022) 14 

Cal.5th 216, 227.) The parties likewise agree defendant did not 

have a right under the Sixth Amendment to represent himself at 

a section 1172.6 proceeding. The parties, however, disagree 

about whether Marsden and Faretta principles can nevertheless 

apply in a post-conviction proceeding like this one. That is a 

question we need not decide to resolve this appeal; we will 

assume for argument’s sake that Marsden and Faretta principles 

apply.3

The record shows the trial court conducted an adequate 

Marsden hearing in which defendant’s asserted conflicts of 

interest and appointed counsel’s competence were addressed. 

Based on the information developed at that hearing, there was no 

abuse of discretion in denying defendant’s request to appoint new 

counsel under Marsden. The trial court also did not err in 

denying defendant’s request to represent himself. Defendant’s 

request was equivocal, and the law is well established that a 

court need not grant an equivocal self-representation request.

3 Regarding defendant’s claim that the court erred in 

refusing to permit him to represent himself, we adopt the Faretta

framing and mode of analysis defendant asks us to employ.
9

A. The Trial Court Did Not Err in Denying Defendant’s 

Marsden Request

“‘When a defendant seeks to obtain a new court-appointed 

counsel on the basis of inadequate representation, the court must 

permit him or her to explain the basis of [the] contention and to 

relate specific instances of inadequate performance. The court 

must appoint a new attorney if the record clearly shows the 

current attorney is not providing adequate representation or that 

the defendant and counsel have such an irreconcilable conflict 

that ineffective representation is likely to result. [Citations.]’” 

(People v. Rices (2017) 4 Cal.5th 49, 69; accord, People v. Ng

(2022) 13 Cal.5th 448, 500.) 

“‘“When a defendant seeks to discharge his appointed 

counsel and substitute another attorney, and asserts inadequate 

representation, the trial court must permit the defendant to 

explain the basis of his contention and to relate specific instances 

of the attorney’s inadequate performance. [Citation.] A 

defendant is entitled to relief if the record clearly shows that the 

first appointed attorney is not providing adequate representation 

[citation] or that defendant and counsel have become embroiled 

in such an irreconcilable conflict that ineffective representation is 

likely to result.”’ [Citation.] The decision whether to grant a 

requested substitution is within the discretion of the trial court; 

appellate courts will not find an abuse of that discretion unless 

the failure to remove appointed counsel and appoint replacement 

counsel would ‘substantially impair’ the defendant’s right to 

effective assistance of counsel.”’” (People v. Vines (2011) 51 

Cal.4th 830, 878; see also Ng, supra, 13 Cal.5th at 500-501.)

Here, the trial court conducted an adequate hearing on 

defendant’s Marsden request. The court not only allowed 
10

defendant to voice his complaints against the public defender’s 

office with regard to the conduct of his current attorney and his 

former trial attorney, it also clarified the nature of defendant’s 

complaints by asking him questions about his written and oral 

statements and about items in the court file regarding postconviction discovery requests. In addition, the court allowed 

appointed counsel to respond to defendant’s grievance and to

describe her representation of defendant and the communications 

they had concerning the petition’s merits. That was sufficient. 

(See, e.g., People v. Horton (1995) 11 Cal.4th 1069, 1101-1103 

[Marsden motion properly denied after trial court provided 

defendant “ample opportunity” to explain basis for complaints].)

The record the trial court developed also discloses no 

grounds to conclude the court abused its discretion when finding 

that replacing appointed counsel was not required. There is no 

evidence the deputy public defender’s representation of defendant 

was compromised by a conflict of interest, a lack of diligence or 

competence, or an irreconcilable breakdown in communications

between counsel and her client. Defense counsel may have 

expressed views defendant did not want to hear (that it would be 

difficult to prevail on his section 1172.6 petition), but those views 

were, by all appearances, well-informed. There was no reason to 

replace defendant’s attorney for giving her client a candid 

assessment of his case.

B. The Trial Court Did Not Err in Denying Defendant’s 

Faretta Request

“A trial court must grant a defendant’s request for selfrepresentation if three conditions are met. First, the defendant 

must be mentally competent, and must make his request 
11

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. Welch (1999) 20 Cal.4th 701, 729; accord, People v. 

Thomas (2023) 14 Cal.5th 327, 397.)

The requirement that a Faretta motion be unequivocal 

helps to ensure that the defendant “truly desires” to represent 

himself. (People v. Marshall (1997) 15 Cal.4th 1, 23.) A 

defendant’s request for self-representation is equivocal if the 

defendant’s “‘statements or actions create any ambiguity as to his 

desire to represent himself.’” (Ibid.) “[V]acillation between 

requests for counsel and for self-representation amounts to 

equivocation or to waiver or forfeiture of the right of selfrepresentation.” (Id. at 22.) An equivocal request is sufficient on 

its own to warrant denial. (Marshall, supra, 15 Cal.4th at 27 

[upholding the denial of the defendant’s Faretta motion on the 

independent ground that the request was equivocal]; People v. 

Barnett (1998) 17 Cal.4th 1044, 1109-1110 [“we reject defendant’s 

claim that the court erred in denying his subsequent Faretta and 

Marsden motion . . . . For one thing, the record does not reflect an 

unequivocal assertion of the right of self-representation”].) In 

determining on appeal whether the defendant unequivocally 

invoked the right to self-representation, we examine the entire 

record de novo. (Marshall, supra, 15 Cal.4th at 24-25; People v. 

Dent (2003) 30 Cal.4th 213, 218.)

The record here “does not convey an unmistakable desire to 

forego counsel.” (Marshall, supra, 15 Cal.4th at 26.) To the 

contrary, the record shows the opposite: defendant wanted the 

assistance of counsel—he just did not want the assistance of the 
12

public defender’s office or the particular deputy public defender 

appointed. That, of course, is an equivocal request, and the trial 

court did not err in denying it. (People v. Tena (2007) 156 

Cal.App.4th 598, 609 [affirming denial of Faretta request where 

defendant’s conduct showed that his request was “born of 

frustration at his public defender’s decisions” and “from his 

frustrated desire for representation by private counsel,” rather 

than from “a desire to represent himself”]; People v. Williams

(2003) 110 Cal.App.4th 1577, 1592-1593 [holding Faretta request 

was equivocal because defendant’s “request for substitute 

counsel, and then to represent himself, came only as a result of 

Williams’s disagreement with defense counsel”]; People v. Scott

(2001) 91 Cal.App.4th 1197, 1204, 1205-1206 [Faretta request 

equivocal where defendant said, “‘if I can’t get a [new] state 

appointed attorney, then I[‘ll] represent myself’”].)

DISPOSITION

The order denying defendant’s section 1172.6 petition is 

affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, Acting P. J.

We concur:

MOOR, J. KIM, J.