People v. Kirgiorgis CA1/3 ( 2022 )

Filed 12/16/22 P. v. Kirgiorgis CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publi-
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A163156
v.
PAUL APOSTOLOS KIRGIORGIS, (Napa County Super. Ct.
No. 21CR001237)
Defendant and Appellant.
The trial court revoked the parole of appellant Paul Kirgiorgis after he
disabled a monitoring device that he was required to wear as a condition of
parole. In this court, appellant challenges the revocation order, contending
he was deprived of his constitutional right to counsel of his choice at the
parole revocation hearing. Alternatively, he claims the trial court improperly
revoked his constitutional right of self-representation. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2018, appellant was convicted of obstructing or resisting a peace
officer in violation of Penal Code section 69. He had multiple prior felony and
misdemeanor convictions.
On June 10, 2021 (all subsequent dates are in 2021), appellant was
arrested while on parole for removing a GPS device he was required to wear.
This was the third time appellant had disabled his GPS device, and second
time absconding while on parole. A petition to revoke parole was filed on
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June 17. Ultimately, the trial court ordered parole revoked and reinstated
under the same terms and conditions, with the modification that appellant
shall serve 180 days in jail with certain specified credits.
Appellant filed a timely notice of appeal.
DISCUSSION
Relying on the Sixth and Fourteenth Amendments to the federal
Constitution, appellant challenges the parole revocation order on alternative
grounds. First he argues he was deprived of counsel of his choice.
Alternatively, he contends the trial court improperly revoked his right of self-
representation under Faretta v. California (1975) 422 U.S. 806 (Faretta).
A. Background Facts
The trial court held hearings on appellant’s parole revocation,
beginning on June 18 and concluding on July 14. The record reflects the
following relevant facts.
At the first hearing on June 18, appellant repeatedly told Judge Scott
Young he was not “Paul Kirgiorgis” and he was not on parole. Judge Young,
however, recognized appellant from “numerous court appearances” and asked
appellant if he should appoint the public defender’s office to represent him in
the parole revocation matter. Appellant responded, “I want my private
attorney. I don’t want Public Defenders.” When asked if his attorney was in
court, appellant indicated he had no opportunity to obtain an attorney
because he had been “locked up” and unable to make phone calls. Judge
Young appointed Deputy Public Defender Aric Bright to represent appellant.
Bright waived arraignment on appellant’s behalf and denied the allegations
of the parole revocation petition. Thereafter, appellant reiterated he did not
want the public defender’s office to represent him. Claiming the Public
Defender is “not favorable for the people,” appellant said he would try to
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retain a private attorney or, if necessary, represent himself. Judge Young set
a Faretta hearing for the following week.
At the second hearing, on June 24, Public Defender Ronald Abernethy
reported to Judge Young that appellant still opposed representation by his
office and that appellant would represent himself if another attorney were
not appointed. Judge Young provided appellant with paperwork to read and
complete in order to waive his right to an attorney and represent himself.
When the hearing resumed, Judge Young informed appellant of his
constitutional rights and confirmed that appellant had filled out and signed
the Faretta waiver form. Appellant stated he wanted an attorney, but not the
public defender. Judge Young told appellant he could either represent
himself or hire a private attorney, but if he wanted an appointed attorney he
would have to accept the public defender’s office. At that point, appellant
said he would represent himself, and Judge Young advised him of the risks of
self-representation. Judge Young discharged the public defender’s office and
continued the hearing for another week so appellant could retain a private
attorney. Appellant said he would have no problem representing himself.
The third hearing was held on June 30 before Judge Elia Ortiz. At the
outset of the hearing, appellant said he was not ready to proceed because he
did not have an interpreter or an attorney. When Judge Ortiz said she
understood appellant had previously asked to represent himself, appellant
said he did not want to do so and also did not want to be represented by the
public defender’s office. After appellant stated he had enough money to hire
a private attorney, Judge Ortiz agreed to continue the proceeding “one last
time” to give appellant another week to retain an attorney.
At the fourth hearing, on July 7, appellant again appeared without a
private attorney. When asked by Judge Ortiz if he was choosing to represent
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himself, appellant said he had spoken with two attorneys’ offices but had not
yet hired an attorney. Appellant also asked if he could hire a private
attorney and have a second attorney appointed for him. At this juncture,
Judge Ortiz noted that appellant’s first appearance in the matter had been on
June 18 and that the prosecutor had already subpoenaed witnesses for two
prior hearings. The judge said she would reappoint the public defender’s
office if appellant wanted an appointed attorney. Appellant reiterated that
he had contacted two attorneys’ offices but had not had enough time to
complete the arrangements and that they would charge $900, which he had.
At that point, Judge Ortiz expressed her belief that appellant was trying to
delay the judicial process, and she assigned the matter to Judge Guadagni.
Judge Ortiz again asked appellant if he opposed the appointment of the
public defender, and appellant twice said that public defenders “didn’t take
care of” him in the past. Judge Ortiz said she would ask Judge Guadagni to
address the Faretta issue.
Later that morning, the parties returned to Judge Ortiz, who said she
had been informed that appellant had “refused to come out” to Judge
Guadagni’s courtroom. Saying she did not have many options, Judge Ortiz
reappointed the public defender’s office to represent appellant. Appellant
said he refused to appear at the hearing. Judge Ortiz then spoke to Deputy
Public Defender Kristin Keeley, who said that Public Defender Abernethy
would be prepared to represent appellant the next week. Judge Ortiz
continued the parole revocation hearing for one more week.
On July 14, the parties appeared before Judge Young. Public Defender
Abernethy informed the judge that appellant had consistently objected to any
representation by the public defender’s office and that appellant wanted
another attorney appointed for him. Appellant said his original intention had
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been to hire a private attorney, but the court “didn’t let [him] do so.”
Appellant claimed he had been given only five days to hire an attorney, which
was not enough time.1 Appellant maintained that Abernethy had been
“imposed on” him. Judge Young noted that the matter had been pending for
almost a month and that appellant faced a maximum jail time of only 180
days. Appellant again protested that the court had “stop[ped]” him from
hiring a lawyer and then announced he did not want to “waste [his] time” and
had “better things to do.”
For Judge Young’s benefit, the prosecutor and Public Defender
Abernethy summarized the proceedings that had occurred before Judge Ortiz.
Appellant said he had bad experiences with public defenders in the past.
Judge Young ruled that the parole revocation hearing would proceed with
Abernethy representing appellant. Although appellant said he would not
participate in the hearing, he changed his mind a few moments later. The
hearing commenced before Judge Young, with Abernethy representing
appellant. After hearing testimony from a parole agent and appellant , Judge
Young found that appellant had violated his parole by intentionally and
knowingly removing a GPS device from his leg.
B. Claimed Deprivation of Counsel of Choice
Under the Sixth Amendment to the federal Constitution, the right to
effective assistance of counsel in a criminal prosecution “ ‘encompasses the
right to retain counsel of one’s own choosing.’ ” (People v. Courts (1985) 37
Cal.3d 784, 789 (Courts).) A necessary corollary of such right is that “ ‘a
defendant must be given a reasonable opportunity to employ and consult with
1 As the record reflects, the trial court allowed appellant to retain private
counsel from the outset of the parole revocation proceedings, which began on
June 18.
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counsel; otherwise, the right to be heard by counsel would be of little worth.’ ”
(Id. at p. 790.) Though “revocation of parole is not part of a criminal
prosecution” and does not implicate “the full panoply of rights” due in such
proceedings (Morrissey v. Brewer (1972) 408 U.S. 471, 480), a California
parolee nonetheless enjoys a statutory right to representation by counsel at a
parole revocation hearing (see § 1203.2, subd. (b)(2)) and, in some situations,
as a matter of due process (see In re Love (1974) 11 Cal.3d 179, 182, 186–
187).
As a general matter, trial courts must “ ‘make all reasonable efforts’ ”
to accommodate a defendant’s choice of private counsel in criminal
proceedings. (Courts, supra, 37 Cal.3d at pp. 790–791; People v. Williams
(2021) 61 Cal.App.5th 627, 631 (Williams).) The right to counsel of one’s
choosing, however, is not absolute. Rather, such right “ ‘must be carefully
weighed against other values of substantial importance, such as that seeking
to ensure orderly and expeditious judicial administration, with a view toward
an accommodation reasonable under the facts of the particular case.’ ”
(Courts, at p. 790.) Thus, a court need not grant a continuance of trial to
accommodate a defendant if the defendant “is unjustifiably dilatory in
obtaining counsel [citation], or if he arbitrarily chooses to substitute counsel
at the time of trial [citation].” (People v. Byoune (1966) 65 Cal.2d 345, 346–
347 (Byoune).)
Appellant offers no authority applying Courts’s right to private counsel
analysis in the context of a parole revocation hearing. Nonetheless, even
assuming the analysis applies, the trial court did nothing to deny or impede
appellant’s right to counsel of his choice. From the outset, the trial judges
below respected appellant’s wish to retain an attorney of his choice and
granted several continuances so that appellant could do so. At the fourth
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hearing concerning the revocation petition, appellant reported that he had
spoken with two law offices but did not retain either despite having the funds
to do so. Although the potential revocation of parole would subject appellant
to a maximum confinement of only 180 days, by that point the matter had
been pending for nearly a month, and witnesses had been subpoenaed for two
prior hearings. On this record, we conclude the trial court acted properly “ ‘to
ensure orderly and expeditious judicial administration’ ” after having
provided appellant an accommodation that was “ ‘reasonable under the facts
of the particular case.’ ” (Courts, supra, 37 Cal.3d at p. 790.)
In so concluding, we observe that the facts here are nothing like those
in appellant’s proffered authorities. In three of the cases, the trial court’s
refusal to continue trial improperly deprived the respective defendants of
private counsel who were already in place. (People v. Crovedi (1966) 65
Cal.2d 199, 201–205, 208 [instead of continuing trial after retained counsel
had heart attack, court ordered retained counsel’s partner to assume the
defense]; Courts, supra, 37 Cal.3d at p. 791 [defendant contacted private
attorney two months prior to trial and established an attorney-client
relationship the week before trial]; Williams, supra, 61 Cal.App.5th at p. 652
[attorney retained nearly a week prior to trial].) And in the fourth case, the
request for a change of counsel on the eve of trial was neither untimely nor
unwarranted because it was made immediately after a new and more serious
charge was filed against the defendant. (Byoune, supra, 65 Cal.2d at p. 348.)
These cases provide no basis for finding an abuse of discretion here.
C. Claimed Revocation of Faretta Right
Alternatively, appellant contends the trial court improperly revoked his
Faretta right to represent himself.
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Although defendants have a Sixth Amendment right to be represented
by counsel at all critical stages of a criminal proceeding, defendants may
choose to waive that right and represent themselves. (Faretta, supra, 422
U.S. at p. 835.) But it is unclear whether parolees have an analogous right to
represent themselves at parole revocation hearings. Because revocation of
parole is “not part of a criminal prosecution,” several federal circuit courts
have concluded the Sixth Amendment right of self-representation is
inapplicable at such hearings. (E.g., United States v. Boultinghouse (7th Cir.
2015) 784 F.3d 1163, 1165, 1171–1172 [revocation of supervised release];
United States v. Spangle (9th Cir. 2010) 626 F.3d 488, 494; United States v.
Hodges (5th Cir. 2006) 460 F.3d 646, 650.) In California, the Supreme Court
has held that the Sixth Amendment right to self-representation “does not
extend beyond the point of conviction.” (In re Barnett (2003) 31 Cal.4th 466,
473 [right of self-representation not applicable in capital habeas corpus
proceedings].)
We assume for purposes of argument that the right of self-
representation extends to parole revocation hearings and is subject to the
same principles applying in criminal proceedings. The principles relevant to
this inquiry are as follows: “To invoke the constitutional right to self-
representation, a criminal defendant must make an unequivocal assertion of
that right in a timely manner. [Citation.] ‘The 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 the court’s decision to deny the
defendant’s motion. A motion for self-representation made in passing anger
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or frustration, an ambivalent motion, or one made for the purpose of delay or
to frustrate the orderly administration of justice may be denied.’ [Citation.]
A reviewing court, in determining whether a motion for self-representation is
unequivocal, is not bound by the trial court’s apparent understanding that
the defendant was making a motion for self-representation.” (People v.
Barnett (1998) 17 Cal.4th 1044, 1087.) And even when invoked, the Faretta
right “may be waived or abandoned” thereafter. (People v. Dunkle (2005) 36
Cal.4th 861, 909.) “In determining on appeal whether the defendant invoked
the right to self-representation, we examine the entire record de novo.”
(People v. Stanley (2006) 39 Cal.4th 913, 932.)
In this case, the record does not reflect that appellant ever made an
unequivocal request. When discussing the matter at the first hearing,
appellant’s apparent goal was to rid himself of representation by the public
defender and to retain his own counsel. At the outset of the second hearing,
he informed the trial court that he preferred to represent himself rather than
accept representation by the public defender. But a little later in the
hearing, appellant indicated he wanted an attorney, just not the public
defender. Still later, appellant said he wanted to represent himself until he
hired his own counsel, and the court relieved the public defender. Then at
the third hearing, while representing himself, appellant told the court that he
did not want to represent himself but that he was doing so because he did not
have a lawyer. At the fourth hearing, appellant again stated that he
preferred to choose his own lawyer and did not want the public defender, that
he wanted the court to appoint a lawyer so he could have two lawyers, and
that he would take a court-appointed attorney but not the public defender.
Finding appellant’s statements about self-representation ambiguous and
equivocal, the trial court reappointed the public defender to represent
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appellant. After the public defender’s reappointment, appellant did not
renew his request to represent himself, reflecting abandonment of that
endeavor. (People v. Dunkle, supra, 36 Cal.4th at p. 909, and cases cited.)
On this record, we cannot find error on the part of the trial court.
Appellant clearly wanted attorney representation, just not representation by
the public defender, though he indicated at various points he would rather
represent himself than proceed with the public defender. But once the trial
court made clear it would not allow additional time for appellant to retain
private counsel, and then reappointed the public defender to represent
appellant at the parole revocation hearing that it scheduled for the following
week, appellant had the choice of going forward with the public defender or
representing himself. As the Supreme Court has observed, “[t]here is nothing
improper in putting the defendant to this choice.” (People v. Michaels (2002)
28 Cal.4th 486, 524.) Mindful that we should draw every reasonable
inference against waiver of the right to counsel, because appellant did not
elect to represent himself once the possibility of retaining counsel was ruled
out, we conclude there was no Faretta violation.
DISPOSITION
The judgment is affirmed.
FUJISAKI, J.
WE CONCUR:
TUCHER, P.J.
RODRÍGUEZ, J.
People v. Kirgiorgis (A163156)
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