People v. Kirgiorgis
| Decision Date | 31 August 2021 |
| Docket Number | B302889 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. PAUL A. KIRGIORGIS, Defendant and Appellant. |
| Court | California Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No 9PH07296, 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.
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.
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, 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?
a big deal.
“[The Court]: But I still don't understand what you're saying.
to make it so big.
“[The Court]: That's the first-
“[Kirgiorgis]: I don't want to have an attorney.
“[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]: He tried to tell me I was wrong.
“[Kirgiorgis]: Not in L.A., no.
“[The Court]: So you want to have a hearing?
“[Kirgiorgis]: I guess so or just-you got a deal for me?
“[Kirgiorgis]: You have no proof.
“[Kirgiorgis]: I don't want to be represented by nobody.
“[Kirgiorgis]: He's not my attorney.
“[Mr. Sweet]: I'm prepared to enter a plea at this time if the court would accept it.
“[Kirgiorgis]: Why [is] he on the case?
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, and “They set me up.”
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.
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.
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 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 ...
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