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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

LUCRETIA GALLOW,

Defendant and Appellant.

F065630

(Madera Super. Ct. No. MCR028437)

O P I N I O N

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.
2

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).
3

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.
4

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 
6

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 selfrepresentation 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.