People v. Kirgiorgis CA2/3

Filed 8/31/21 P. v. Kirgiorgis CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B302889
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 9PH07296)
v.
PAUL A. KIRGIORGIS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Robert M. Kawahara, Judge. Affirmed.
Heather E. Shallenberger, under appointment by the Court
of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney
General, Charles C. Ragland, Scott C. Taylor, and Stephanie H.
Chow, Deputy Attorneys General, for Plaintiff and Respondent.
________________________
Paul A. Kirgiorgis, a registered sex offender, was convicted
in 2018 of resisting a peace officer. After serving a prison
sentence, he was released on parole. When he violated a parole
condition by disabling his global positioning system (GPS) ankle
monitor, the trial court revoked and reinstated his parole, on
condition he serve 180 days in county jail. Kirgiorgis appeals,
contending the court improperly denied his request to represent
himself pursuant to Faretta v. California (1975) 422 U.S. 806(Faretta). Because Kirgiorgis abandoned his request, we affirm
the order.
FACTUAL AND PROCEDURAL BACKGROUND
Kirgiorgis, who is a registered sex offender,1 was convicted
in June 2018 of resisting or deterring a peace officer by means of
force or violence (Pen. Code, § 69)2 and was sentenced to two
years in prison. He was subsequently released on parole
supervision. As a condition of parole, Kirgiorgis was required to
wear a GPS ankle device, which allowed his parole officer to
monitor his whereabouts. Another condition of parole, to which
Kirgiorgis agreed, was that he would charge the device for one
hour at least two times per day, every 12 hours.
1. Parole revocation petition and arraignment
On October 10, 2019, the Division of Adult Parole
Operations filed a parole revocation petition alleging that
Kirgiorgis had disabled his ankle monitor by failing to charge it,
1
Kirgiorgis was convicted in January 2014 of indecent
exposure in violation of Penal Code section 314.
2
All further undesignated statutory references are to the
Penal Code.
2
in violation of his conditions of parole. Parole was preliminarily
revoked.
On October 18, 2019, Kirgiorgis appeared for arraignment,
and was represented by Deputy Public Defender Douglas Sweet.
Kirgiorgis stated he wished to represent himself. The following
colloquy transpired:
“[Kirgiorgis]: I don’t want an attorney to represented [sic]
me.
“[The Court]: I’m sorry.
“[Kirgiorgis]: I don’t want an attorney to represented [sic]
me.
“[The Court]: You don’t want an attorney to represent you?
“[Kirgiorgis]: No.
“[The Court]: You want to represent yourself?
“[Kirgiorgis]: Yeah.
“[The Court]: Why is that?
“[Kirgiorgis]: I don’t need anybody. The case is so small.
Why you makin’ a big deal.
“[The Court]: But I still don’t understand what you’re
saying.
“[Kirgiorgis]: You don’t speak English? I said the case is
small. You tryin’ to make it so big.
“[The Court]: That’s the first—
“[Kirgiorgis]: I don’t need an attorney, you know. We can
work something out.
“[The Court]: Yeah, but you can work it out through your
attorney. And it’s better you talk through your attorney—
“[Kirgiorgis]: I don’t want to have an attorney.
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“[The Court]: —because if you say something that could be
used against you and you go to a hearing, they will use that
against you.
“[Kirgiorgis]: That’s okay. I take the blame.
“[The Court]: And so—let me ask you, Mr. Sweet. You’ve
attempted to interview him. And I don’t want to know exactly
the conversation, but in terms of the tone.
“[Kirgiorgis]: He tried to tell me I was wrong.
“[Mr. Sweet]: I got through 80 percent of the report. At
some point he stated he did not want to speak with me and he
wanted to talk to the court.
“[The Court]: That’s all right. Let me just explain about
two things to you; okay. Okay. You’ve not been in this court yet
before; right? Not been before this court right?
“[Kirgiorgis]: Not in L.A., no.
“[The Court]: Yeah, okay. And the violation is not properly
charging—
“[Kirgiorgis]: I didn’t violate. My battery was charged.
That’s a lie.
“[The Court]: So you want to have a hearing?
“[Kirgiorgis]: I guess so or just—you got a deal for me?
“[The Court]: I can’t give you a deal because it’s a
mandatory 180 days. It’s mandatory. I must—if you’re found in
violation I must give you 180 days. I have no choice.
“[Kirgiorgis]: You have no proof.
“[The Court]: You know what, I’m going to deny your right
to represent yourself. I don’t think he’s—there’s no right to
represent yourself, number one. And I don’t think he’s
appropriate. So Mr. Sweet is going to continue to represent you,
sir. Based upon our discussion I don’t think it’s appropriate for
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[you to] represent yourself. All right. So Mr. Sweet is going to
continue to represent you.
“[Kirgiorgis]: I don’t want to be represented by nobody.
“[The Court]: So the thing is that he’s your attorney today.
So you want to go back and complete your interview?
“[Kirgiorgis]: He’s not my attorney.
“[The Court]: He is your attorney. You don’t have a choice
at this point.
“[Mr. Sweet]: I’m prepared to enter a plea at this time if
the court would accept it.
“[The Court]: Okay. If you’re not unwilling to finish your
interview, Mr. Sweet—
“[Kirgiorgis]: Why [is] he on the case?
“[The Court]: I don’t know. Okay.”
Defense counsel then entered a denial on the petition and
requested a probable cause hearing. The court informed
Kirgiorgis that he would be brought back to court for the hearing.
Kirgiorgis stated, “I’m not fucking up. They’re going to go find a
prison” and “They set me up.”
2. The parole revocation hearing
On October 23, 2019, Kirgiorgis refused to come to court.
The court ordered he be extracted from his cell, and rescheduled
the hearing.
A combined probable cause and contested parole revocation
hearing transpired on October 29, 2019. Kirgiorgis was
represented by a different deputy public defender, Thomas
Slattery.3 He did not renew his self-representation request, and
his new attorney did not reference it.
3
The record does not reflect the reason for attorney
Slattery’s substitution for attorney Sweet.
5
At the hearing, Kirgiorgis’s parole officer testified that
when a GPS monitor’s battery goes into “low” or “critical” status,
it sends an audible tone to alert the wearer. On October 6, 2019,
the parole agent was electronically alerted that Kirgiorgis’s
device’s battery had run out. Kirgiorgis was subsequently located
at a Starbucks in La Mirada; the monitor was still affixed to his
ankle, but the battery was dead. Kirgiorgis was arrested and the
device was tested. It charged properly when plugged in. When
asked why he had failed to charge the battery, Kirgiorgis stated
he “didn’t feel like charging and he knew [the parole officer]
would find him.”
Kirgiorgis testified that he had been living with relatives
and would charge the ankle monitor “all the time.” The day or
two prior to his arrest, his relatives notified parole that
Kirgiorgis was not taking his medication; they also called the
police. Upset with his family, Kirgiorgis left and spent the night
on the street. He charged his device in the outdoor plug of a
grocery store, and also charged it twice at Starbucks. He denied
that the battery had died; it was charged when he was arrested.
It never emitted an audible tone indicating the battery was
running down. He believed he was required to charge the device
for two hours each day, and he “did more than that.” He also
believed the device was not charging properly. He did not realize
he had to charge the device for an hour, every 12 hours.
The court found true the allegation that Kirgiorgis had
disabled his GPS device and was in violation of parole. It
revoked and reinstated parole upon Kirgiorgis’s completion of a
180-day jail term, with credit for 48 days.
Kirgiorgis filed a timely notice of appeal.
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DISCUSSION
Kirgiorgis contends that the court’s denial of his self-
representation request violated the Sixth Amendment, a
structural error requiring per se reversal. The People argue that
Kirgiorgis’s request was properly denied because it was “initially
equivocal and was subsequently abandoned.”4
1. Applicable legal principles
Under the Sixth Amendment to the United States
Constitution, a defendant has two mutually exclusive rights at all
critical stages of a criminal prosecution: the right to be
represented by counsel, and the right to self-representation.
(People v. Marshall (1997) 15 Cal.4th 1, 20; People v. Fedalizo
(2016) 246 Cal.App.4th 98, 103–104.) As interpreted by Faretta,
the Sixth Amendment gives a mentally competent defendant a
right to represent himself at trial if his request is timely,
unequivocal, voluntary, knowing, and intelligent. (People v.
Johnson (2019) 8 Cal.5th 475, 499; People v. Stanley (2006) 39
Cal.4th 913, 931–932; People v. Best (2020) 49 Cal.App.5th 747,
756.) An ambivalent or insincere motion, or one made on a
4
We asked the parties for additional briefing on the issue of
whether the instant appeal is moot. Appellant clarifies that he is
still on parole supervision, which will likely not terminate until
2022, and we accept his representation. Thus, despite the fact
that Kirgiorgis has completed the 180-day jail term imposed as a
consequence of the parole violation, the appeal is not moot
because revocation may have the effect of extending his period of
parole. Time during which parole supervision is suspended
because a prisoner has been returned to custody as a parole
violator is not credited toward his parole period. (§ 3000,
subd. (b)(6); cf. People v. DeLeon (2017) 3 Cal.5th 640, 645 [appeal
from parole revocation order moot where defendant was no longer
under parole supervision].)
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temporary whim, under a cloud of emotion, in passing anger or
frustration, or for the purpose of delay or to frustrate the orderly
administration of justice, may properly be denied even if the
defendant has said he or she seeks self-representation.
(Marshall, at p. 23; People v. Danks (2004) 32 Cal.4th 269, 295–
296; Stanley, at p. 932.) The defendant’s technical legal
knowledge and his ability to effectively represent himself are
irrelevant. (People v. Butler (2009) 47 Cal.4th 814, 824; Best, at
p. 757.) A court must draw every reasonable inference against
waiver of the right to counsel. (Marshall, at p. 23; Stanley, at
p. 933; People v. Ruffin (2017) 12 Cal.App.5th 536, 545.) A “court
faced with a motion for self-representation should evaluate not
only whether the defendant has stated the motion clearly, but
also the defendant’s conduct and other words. Because the court
should draw every reasonable inference against waiver of the
right to counsel, the defendant’s conduct or words reflecting
ambivalence about self-representation” may support denial.
(Marshall, at p. 23.)
“In determining on appeal whether the defendant invoked
the right to self-representation, we examine the entire record de
novo.” (People v. Stanley, supra, 39 Cal.4th at p. 932.) The
erroneous denial of a valid Faretta motion is reversible per se.
(McKaskle v. Wiggins (1984) 465 U.S. 168, 177, fn. 8; People v.
Boyce (2014) 59 Cal.4th 672, 702.)
2. The court did not err by denying Kirgiorgis’s request
Here, assuming arguendo that a Sixth Amendment right to
self-representation exists at a parole revocation hearing,5 there
was no violation of that right in the instant matter.
5
It is not clear that a parolee has such a right at a parole
revocation hearing. The Faretta right to self-representation
8
There is no dispute that Kirgiorgis’s self-representation
request was timely; he made it during his first appearance in the
parole revocation proceeding.
The People argue that Kirgiorgis’s comments were
equivocal because they were made out of anger and frustration,
derives from the Sixth Amendment (Faretta, supra, 422 U.S. at
p. 819; People v. Scott (1998) 64 Cal.App.4th 550, 556, 560), and
courts have held that, because a revocation proceeding is not part
of the criminal prosecution, the Sixth Amendment does not apply.
“[R]evocation of parole is not part of a criminal prosecution and
thus the full panoply of rights due a defendant in such a
proceeding does not apply to parole revocations.” (Morrissey v.
Brewer (1972) 408 U.S. 471, 480; Gagnon v. Scarpelli (1973) 411
U.S. 778, 781; In re Barnett (2003) 31 Cal.4th 466, 473 [“the sole
constitutional right to self-representation derives from the Sixth
Amendment, which pertains strictly to the basic rights that an
accused enjoys in defending against a criminal prosecution and
does not extend beyond the point of conviction.”]; United States v.
Spangle (9th Cir. 2010) 626 F.3d 488, 494.) Therefore, courts
have concluded that the Sixth Amendment right to self-
representation, as construed by Faretta, does not exist at a parole
revocation hearing either. (See United States v. Spangle, at
p. 494 [although Sixth Amendment indisputably provides
criminal defendants with the right to self-representation, it “does
not apply to parole revocation proceedings”]; United States v.
Hodges (5th Cir. 2006) 460 F.3d 646, 650 [Sixth Amendment
“right to self-representation . . . does not extend to hearings to
revoke parole”]; United States v. Boultinghouse (7th Cir. 2015)
784 F.3d 1163, 1165, 1170–1171; cf. Martinez v. Court of Appeal
of California (2000) 528 U.S. 152, 165 [no Sixth Amendment right
to self-representation on appeal].) We need not reach this
question, however, because even assuming Faretta applied at
Kirgiorgis’s revocation hearing, the trial court did not err by
denying his request.
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rather than a genuine desire for self-representation. We need not
decide this question because Kirgiorgis’s failure to renew his
request when he appeared with new counsel at the revocation
hearing reflects his abandonment of any Faretta request. (See
People v. Dunkle (2005) 36 Cal.4th 861, 906, disapproved on
another ground by People v. Doolin (2009) 45 Cal.4th 390, 421,
fn. 22.) It is well settled that a “Faretta right, once asserted, may
be waived or abandoned.” (People v. Dunkle, at p. 909; People v.
Tena (2007) 156 Cal.App.4th 598, 609–610.) Such “waiver or
abandonment may be inferred from a defendant’s conduct” that is
inconsistent with the assertion of that right, such as the
acquiescence in representation by counsel without further
invocation of his Faretta rights. (People v. Trujeque (2015) 61
Cal.4th 227, 262–263; McKaskle v. Wiggins, supra, 465 U.S. at
p. 183 [“Once a pro se defendant invites or agrees to any
substantial participation by counsel, subsequent appearances by
counsel must be presumed to be with the defendant’s
acquiescence, at least until the defendant expressly and
unambiguously renews his request that standby counsel be
silenced.”]; People v. Butler, supra, 47 Cal.4th at p. 825 [Faretta
right may be waived “by abandonment and acquiescence in
representation by counsel”]; People v. Stanley, supra, 39 Cal.4th
at p. 929; People v. D’Arcy (2010) 48 Cal.4th 257, 285; People v.
Fedalizo, supra, 246 Cal.App.4th at p. 104; People v. Rudd (1998)
63 Cal.App.4th 620, 631 [“the Sixth Amendment self-
representation right does not exist when a defendant prior to or
during trial acquiesces in the assignment or participation of
counsel in the defense.”].) The standard for waiving the right to
self-representation is “substantially less stringent than it is for
waiving the right to counsel.” (People v. Fedalizo, at p. 104.)
10
In line with the well-settled requirement that we must
draw every reasonable inference against waiver of the right to
counsel (People v. Marshall, supra, 15 Cal.4th at p. 23; People v.
Stanley, supra, 39 Cal.4th at p. 933), we conclude Kirgiorgis
agreed to or at least acquiesced in representation by a new
attorney at the revocation hearing. At the hearing, neither
Kirgiorgis nor his new counsel brought up the issue of self-
representation. If Kirgiorgis seriously wished to represent
himself, he could have informed new counsel of that request and
counsel could have renewed the Faretta request, or at least
apprised the court that he was appearing for Kirgiorgis against
his wishes. (See People v. Tena, supra, 156 Cal.App.4th at p. 609
[attorney who represented defendant after denial of Faretta
request did not indicate he was appearing only because the
request had been denied].)
People v. Stanley, supra, 39 Cal.4th 913, is instructive.
There, the defendant made a conditional self-representation
request, which the court denied. Thereafter, he accepted the
appointment of two attorneys. (Id. at pp. 930–931.) Stanley
reasoned that the request was properly denied for two reasons:
first, it was not fully knowing and intelligent; and second, it was
abandoned. The court explained: “in light of defendant’s
subsequent acceptance of several appointed counsel to represent
him, both at the preliminary hearing and throughout the ensuing
trial, without renewing his request for self-representation, we . . .
conclude he must be found to have ultimately waived or
abandoned his asserted right of self-representation.” (Id. at
p. 929.)
Kirgiorgis contends that renewal of his self-representation
request would have been futile. (See People v. Dent (2003) 30
11
Cal.4th 213, 219.) However, the trial court’s statements here
were not as definitive as in Dent. In Dent, the court’s denial of a
self-representation request “foreclosed any realistic possibility
defendant would perceive self-representation as an available
option.” (Id. at p. 219.) There, the defendant’s appointed counsel
failed to arrive on time for the first day of trial. (Id. at p. 216.) In
light of counsel’s repeated requests for continuances and failure
to appear, the trial court relieved counsel and continued the trial.
The court explained “ ‘These are all very, very serious charges.
And I think that you should definitely have attorneys here to
represent you that have the time to spend on a case.’ ” (Id. at
p. 216.) It continued, “ ‘You must be represented by attorneys
that are senior trial attorneys. And you have got to have people
here to represent you. You cannot represent yourself in this
matter.’ ” (Ibid.) When the defendant asked to respond, the
court prevented him from doing so without counsel present.
(Ibid.) When the tardy counsel arrived at the courtroom,
defendant informed the court, through counsel, that he preferred
to proceed with that attorney or, alternatively, would rather
represent himself than receive new attorneys. The court stated,
“ ‘I am not going to let him proceed pro. per. . . . Not in a death
penalty murder trial.’ ” (Id. at p. 217.) New counsel were
appointed, and the defendant did not renew his Faretta request.
(Ibid.) Dent concluded that even if Dent’s request had been
equivocal, the trial court’s response effectively prevented him
from making an unequivocal invocation. (Id. at p. 219.)
Here, the court’s comments were far more cursory.
Moreover, the court stated that attorney Sweet was “your
attorney today,” and Kirgiorgis did not “have a choice at this
point.” (Italics added.) These aspects of the court’s comments did
12
not foreclose a future request, especially when Kirgiorgis was
subsequently represented by a new attorney. Kirgiorgis’s
comments indicate he was not reluctant to speak up, assert his
perceived rights, and make his wishes known. (See People v.
Tena, supra, 156 Cal.App.4th at p. 610 [noting defendant’s
“demonstrated proclivity” to speak for himself].) The logical
inference from the record is that, upon being appointed new
counsel, Kirgiorgis reconsidered and abandoned any desire to
represent himself.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
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