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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,

Plaintiff and Respondent,

v.

PAUL A. KIRGIORGIS,

Defendant and Appellant.

B302889

(Los Angeles County

Super. Ct. No. 9PH07296)

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.

________________________
2

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.
3

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.
4

“[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 
5

[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.
6

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.
7

DISCUSSION

Kirgiorgis contends that the court’s denial of his selfrepresentation 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].)
8

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,5there 

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 
9

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 selfrepresentation, 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. 
10

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 selfrepresentation 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.)
11

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 selfrepresentation. 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 
12

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
13

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.