Filed 5/16/14 P. v. Silagi CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR




THE PEOPLE,                                                             B248087

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. SA082728)
         v.

JARRIS JAY SILAGI,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Elden S.
Fox, Judge. Affirmed.
         Doreen B. Boxer, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and
Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
                                    INTRODUCTION


       A jury convicted defendant Jarris Jay Silagi of attempted second degree robbery
(Pen. Code, §§ 664, 211)1 (count 2). The jury found defendant not guilty of attempted
grand theft from a person (§§ 664, 487, subd. (c)) (count 1). In a bifurcated trial, the jury
found defendant had suffered three prior felony convictions within the meaning of section
667.5, subdivision (b). The trial court denied probation (pursuant to §1203, subd. (e)(4)),
and sentenced defendant to a total term of five years in prison.
       In this appeal, defendant contends that the trial court erred when it denied his
request for self-representation under Faretta v. California (1975) 422 U.S. 806 (Faretta).
We readily conclude that defendant did not make an unequivocal request to represent
himself, and therefore affirm the judgment of conviction.


                               FACTUAL BACKGROUND


       Because defendant does not challenge the sufficiency of the evidence to support
the jury’s verdict, we need only briefly recite the facts of the crime.
       In August 2012, Francisca Cano Sanchez was seated in an outdoor patio at a
restaurant in Beverly Hills. Defendant jumped over a railing and tried to grab Sanchez’s
cell phone from her hand. A restaurant employee pushed defendant back over the railing
and held defendant on the ground to detain him until police arrived.


                          THE RELEVANT PROCEEDINGS


       After the jury was impaneled and the trial court read the initial instructions, the
court addressed defendant outside the jury’s presence. The court stated, “I do want to
have a couple comments with you, Mr. Silagi. Your attorney has a very difficult job.
She is representing you. She is going to be examining witnesses. She is going to be


1      All further statutory references are to the Penal Code.

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presenting your defense in this case. If you have outbursts while you’re seated here and
make statements that these jurors can hear, it does not inure to your benefit. Do you
understand what I mean by that? It’s going to hurt your case. So if you have an issue
with something, it’s better that you speak to counsel quietly than say something in open
court that the jurors may interpret adverse to you.”2 The court asked if defendant
understood, and he replied, “All right.” The trial court repeated, “Again, I remind you,
she is going to do the best she can to defend you in this case, but outbursts are not going
to help, okay?” Defendant again replied, “All right.”
       After taking a recess, the court reconvened and told defendant outside the jury’s
presence, “Mr. Silagi, again, I’ll just caution you if you speak with your attorney, she
certainly can assist in terms of any issues that you have with evidentiary objections, but
by you blurting out things in front of the jury, it does not help your case. Understood?”
Defendant began, “Well, if the D.A. —,” but the court stated, “Mr. Silagi, I’m not
debating with you. I’m just trying to . . . make sure you have a fair trial.” Defendant
interrupted the court, repeatedly saying, “I have a right to object.” The court told
defendant that his counsel was there to protect his constitutional rights and present his
defense. “If you speak with her and you feel there’s something objectionable, she
certainly can make the legal objection if it’s appropriate. Okay?” Defendant responded
that he had the right to object. The court said, “You can do whatever you want,
Mr. Silagi. I’ve told you my impressions, and I can only tell you from doing this for 30
years, defendants that don’t cooperate in open court and do things in front of the jury
usually don’t end up with good results.” Defendant said, “Okay.”
       When the jury returned, the prosecutor gave a brief opening statement. The court
turned to defense counsel, but defendant blurted out, “Well, I’m going to make an
opening statement because she doesn’t even know what it is.” The court said, “Excuse
me. I told you to be quiet.” Defendant replied, “Yes, Your Honor. I’m going to defend
myself. I have a right to defend myself.” The court asked defense counsel if she wanted

2      Apparently defendant had interrupted the proceedings during jury selection, but a
transcription of these outbursts is not included in the record on appeal.

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to make her opening statement. Defendant said, “I’m making an opening statement for
myself. Your Honor?” The court said, “One moment, Mr. Silagi. I need you to calm
down, okay?” Defendant said, “Okay. I’m making an opening statement for myself.
She doesn’t even know. She doesn’t know. She doesn’t know. . . . I’m making the
opening statement.” The court warned defendant that if he continued he would be
removed from the courtroom. Defendant said, “I want to make my own opening
statement because she doesn’t even have an opening statement for me. She doesn’t even
know I have one. So I want to make my . . . . I have a right to make my own opening
statement, and that’s what I want to do, Your Honor.” The court asked the jury to exit
the courtroom for a moment, and they did so.
         Turning to defendant, the court explained, “[Y]ou’re represented by counsel.
Ms. Tryfman is your attorney. She makes the opening statement. She will question the
witnesses. She will also argue the case. She has copies of the reports. She’s spoken to
you about the case. I’m going to give you a choice right now.” The court continued, “If
you open your mouth again and insist on doing something that counsel’s supposed to do,
I’m going to absent you from the courtroom, and I’m going to allow Ms. Tryfman to
proceed, I’m going to tell the jurors that you’ve requested by way of your actions not to
be present during those portions of the case. Do you want that to happen?” Defendant
responded, “She doesn’t have the opening statement. She has not talked to me like you
said. You said she talked to me. She has not talked to me. . . . I have no idea what my
opening statement is.”
         The court asked defense counsel if she was prepared to make an opening
statement, and she replied that she was. Defendant said, “She has no opening statement,
Your Honor, for me.” The court indicated defendant should be removed from the
courtroom, and defendant said, “I have rights.” The court replied, “You’ll have a right.”
The following exchange ensued:
         “The Defendant: I just want to make my own opening statement. May I have that
right?
         “The Court: When you want to be quiet —


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       “The Defendant: Do I have that right?
       “The Court: — you can come back.
       “The [Defendant]: I have the right to make my — do I have a right to make an
opening statement —
       “The Court: No, you don’t.
       “The Defendant: — for myself?
       “The Court: No, you don’t sir.
       “The Defendant: If she does not — can I — she has my opening statement for me.
Your Honor. I have a right to make an opening statement for myself.
       “The Court: I want you to keep him up here, and as soon as he’s ready to comply
with the court’s orders, I’ll let him have a seat in the courtroom again.
       “The Defendant: She doesn’t have one for me, Your Honor.”
       Defendant was removed from the courtroom and the jury returned. The court
informed the jury, “Mr. Silagi is not present for the opening statement. Based on his
conduct, he’s voluntarily absented himself for this purpose. You’re not to consider that
for any purpose as it relates to as we proceed in this matter, and hopefully we will
proceed once we complete the opening statement which has nothing [to] do with
Ms. Tryfman. I ask that you pay attention to her opening statement.”
       Defense counsel made a brief opening statement. The court asked the jury to step
out for a moment and returned defendant to the courtroom. The court addressed
defendant: “We’re going to proceed with the first witness, Mr. Silagi. I would like to
have you present so that you can participate in this process with your counsel. Help her
in questioning if there’s some questions you need asked. I’ll allow you to remain here as
long as you do not interrupt the proceedings and work through your counsel. Will you do
that for me, sir?” Defendant answered, “I have a right to object. I have a right — I have
the right to make an opening statement.” The court replied, “Okay. I’m not going to
debate with you. You will remain in the courtroom. We’re going to proceed. Bring the
jurors and alternates back in, please.” Defendant said, “She’s not prepared to do so.”



                                              5
Defense counsel said she was prepared, and defendant responded, “She has not spent
adequate time with me.” The trial then proceeded.
       Defendant continued to interject frequently, objecting and commenting on
witnesses’ answers. During Sanchez’s direct examination, defendant asked for readback
of her answer. Initially the trial court was accommodating but defendant repeatedly
demanded readbacks. The court told defendant he was not to tell the court reporter what
to do, and indicated they would finish with direct examination, “then you can have your
counsel ask questions.” Defendant asked, “Your Honor, do I have a right to hear
everything that has been said in this courtroom?” The court asked if he wanted to leave
the courtroom again or hear the case. Defendant answered that he wanted to know if he
had a right to hear. The court excused the jurors, then warned defendant that his right to
be present was not absolute and that if he interrupted again, he would be removed. The
court asked if he understood. Defendant responded, “No. I want to open my case.” The
court ordered defendant removed.
       The court took a recess, then addressed defendant outside the jury’s presence. The
court told defendant, “if you conduct yourself by interrupting these proceedings, I have a
right to order that you remain outside the courtroom, meaning in the lockup, and the case
proceeds without you being present. I don’t want to do that. I want you to be here so you
can hear everything that’s testified to. So I’m going to remind you again, if you have a
concern about an answer or a question that’s being asked, consult with your attorney and
she can clarify that because she’s going to have the chance to question the witness also.
Do you understand what I’ve said?” Defendant replied, “Well, I don’t feel that my —
being my representation is as good as I want it to be, you know what I’m saying? And I
feel there’s many doubts, you know, but —” The court expressed its opinion that defense
counsel “is doing a very good job in representing you, and the charges in this matter have
some specific elements, and she is presenting a defense by examining witnesses that
raises issues as to those elements. So I suggest you let your attorney who is very
qualified and has tried many cases help you in this case because what you’re doing in
front of the jury is not helping you. Do you understand that?” Defendant said, “Your


                                             6
Honor, I understand niceties. I understand that, you know, these are professional people
in here, you know. I just want my rights. I want just — I want to have the right. I want
to exercise my rights. I’m innocent.” The court said defendant was exercising his rights,
including the right to counsel and to have the jury decide his guilt or innocence. “But
unless you’re going to let your attorney do what she does best which is defend people
charged with crimes, then you’re going to put yourself in a position that someone who
watches you keep interrupting is going to get upset with you and that may affect their
verdict in this case. Do you understand that?” Defendant said he did, but reiterated, “I
want to exercise my right to hear everything that was said after she said, ‘and then the
cops came.’” The court indicated counsel would get to that, but defendant indicated he
wanted to hear it immediately. The court told defendant he needed to be quiet and not
interrupt anymore, and ordered the jurors returned to the courtroom. As they were
returning, defendant asked if he could have an answer to the question. The court called a
lunch recess.
       When the trial resumed, defendant again asked if he had the right to hear the
answer to the question. The court attempted to continue with the trial but when defendant
persisted the court had him removed. The court addressed the jury: “The record will
reflect the defendant has been removed from the courtroom. The court finds that by his
actions and interruptions of the process he has voluntarily absented himself from these
proceedings at this stage.”
       After the parties rested, defendant reentered the courtroom outside of the jury’s
presence, and remained during the rest of the trial. He spoke out during the prosecutor’s
closing argument and again while the court was reading the jury instructions.
       After the jury returned its verdict, defendant continued to obstruct the proceedings.
Defendant announced he wanted to file state and federal charges against the jury, the
court, the prosecutor, and his counsel. He was removed from the courtroom during the
bifurcated jury trial on his prior convictions because of his repeated outbursts.
       During the sentencing hearing, the court stated, “I think it’s apparent to anyone
that’s been involved in this trial that Mr. Silagi, although legally competent, certainly


                                              7
suffers from some serious psychiatric issues.” Defendant continued to speak out, saying,
“I wanted my justice,” and “This is illegal sentencing right here.” He asked if he had a
right to free speech and a right to defend himself. The court said he had a right to free
speech to the extent he did not interrupt the court. The court sentenced defendant to a
term of five years.
       This timely appeal followed.


                                      DISCUSSION


       Defendant contends on appeal that the trial court erred when it denied his request
to represent himself. We conclude that he did not unequivocally request self-
representation and therefore reversal of his conviction is not warranted. Although
defendant expressed dissatisfaction with aspects of his counsel’s representation, at no
time did he request self-representation or even substitution of counsel. At most, he tried
to insist he had the right to speak when he wanted to speak during the proceedings.
Criminal defendants do not have an absolute right to speak when they want, and the
record makes clear the court did not abuse its discretion by not allowing defendant to
serve as cocounsel. We find no error and affirm the judgment.
       As part of the Sixth Amendment right to counsel, a defendant has a right to self-
representation if the request is timely, unequivocal, and made after a knowing and
intelligent waiver of the right to counsel. (Faretta, supra, 422 U.S. 806, 819; People v.
Koontz (2002) 27 Cal.4th 1041, 1069.)
       Here, after the prosecutor gave an opening statement, defendant tried to insist on
making his own opening statement, saying, “Well, I’m going to make an opening
statement because she doesn’t even know what it is.” The court said, “Excuse me. I told
you to be quiet.” Defendant replied, “Yes, Your Honor. I’m going to defend myself. I
have a right to defend myself.”
       On appeal, defendant contends that this exchange constituted an unequivocal
request for self-representation. We disagree. Defendant did not express that he wanted


                                             8
to discharge his counsel and represent himself, or “go pro. per.” Nothing in the record
suggests that the trial court, or even defendant’s own counsel, interpreted his comments
as being a request for self-representation under Faretta, supra, 422 U.S. 806.
       The case of People v. Danks (2004) 32 Cal.4th 269 (Danks) is instructive. At two
pretrial hearings, defendant referred to “going pro. per.” At the second hearing,
following a lengthy discussion of defendant’s Marsden3 motion, the defendant stated, “‘I
want a trial. I want to defend myself and go pro. per. If I’m not allowed to go pro. per., I
would at least like to be cocounsel to where I could sit there, maybe I could just take the
stand and tell ’em, the jury exactly what happened on this incident.’” (Id. at p. 295.) On
appeal, defendant contended the trial court erred in denying his motion for self-
representation. The appellate court held that, in the context in which they were made, the
defendant’s “references to self-representation were equivocal, born primarily of
frustration regarding the granting of counsel’s requests for continuances and his desire to
avoid further psychiatric examination.” (Id. at p. 296; see also p. 297.)
       Similarly, in People v. Marlow (2004) 34 Cal.4th 131, 147 (Marlow), the
defendant inquired, “‘Is it possible that I just go pro[.] per[.] in my own defense and have
someone appointed as co-counsel?’” The Supreme Court deemed the defendant’s
comments to be a mere inquiry, not an unequivocal assertion of the right to self-
representation. The court held that the defendant’s question “was a request for
information, not a Faretta motion,” and stated that the fact “the trial court went on to
‘decline to do that at this particular time’ did not convert defendant’s inquiry into a
motion.” (Ibid.; fn. omitted.)
       In this case, defendant’s remarks in the trial court were far more equivocal than
those rejected as insufficient invocations of the right to self-representation in Danks and
Marlow. In the case before us, there was no reference in defendant’s comments to self-
representation. There was no request to discharge or replace his attorney. He said he
wanted to “defend” himself, but in context he was using that term to mean that he wanted


3      People v. Marsden (1970) 2 Cal.3d 118.

                                              9
to protect his interests by speaking whenever he wanted to speak, rather than seeking to
serve as his own attorney.4 Although he was dissatisfied with counsel’s plan regarding
an opening statement, and continued at other times during the trial to request to make his
own evidentiary objections and have evidence repeated, he never indicated he wanted to
represent himself. Because defendant failed to make an unequivocal request for self-
representation, there was no Sixth Amendment error as defendant claims on appeal.
       A defendant has no right, under either the federal or state Constitution, to “hybrid
representation.” As stated in People v. Moore (2011) 51 Cal.4th 1104, 1119-1120,
footnote 7 (Moore II): “[B]y hybrid representation we mean one of three arrangements
involving the presence of both a self-represented defendant and a defense attorney:
(1) standby counsel, in which the attorney takes no active role in the defense, but attends
the proceedings so as to be familiar with the case in the event that the defendant gives up
or loses his or her right to self-representation; (2) advisory counsel, in which the attorney
actively assists the defendant in preparing the defense case by performing tasks and
providing advice pursuant to the defendant’s requests, but does not participate on behalf
of the defense in court proceedings; and (3) cocounsel, in which the attorney shares
responsibilities with the defendant and actively participates in both the preparation of the
defense case and its presentation to a degree acceptable to both the defendant and the
attorney and permitted by the court. A second major category of hybrid representation
. . . occurs when a criminal defendant who has chosen to accept the assistance of counsel
is permitted to serve as cocounsel to his or her attorney. In such cases, the attorney
retains control of the tactical choices to be made, and the defendant participates only to
the extent permitted by counsel and the court.” (Italics added.)
       It is the second category of hybrid representation that is at issue in the case before
us. In any event, “‘[N]one of the “hybrid” forms of representation, whether labeled
“cocounsel,” “advisory counsel,” or “standby counsel,” is in any sense constitutionally



4       We note that during sentencing he repeated this usage of the word, asking the
court if he had a right to “defend” himself.

                                             10
guaranteed.’ (People v. Bloom [(1989)] 48 Cal.3d 1194, 1218.)” (People v. Bradford
(1997) 15 Cal.4th 1229, 1368.)
       “Criminal defendants have the constitutional right to have an attorney represent
them, and the right under the federal Constitution to represent themselves, but these
rights are mutually exclusive. (McKaskle v. Wiggins (1984) 465 U.S. 168, 183 . . . ;
People v. Marlow[, supra,] 34 Cal.4th 131, 147, fn. 6; People v. Clark (1992) 3 Cal.4th
41, 111 . . . ; People v. Bloom[, supra,] 48 Cal.3d 1194.)” (Moore II, supra, 51 Cal.4th at
pp. 1119-1120.) Thus, “[a] defendant has no absolute right to participate in the
presentation of his case when he is represented by counsel. (People v. Mattson (1959) 51
Cal.2d 777, 789.) Indeed, the decision whether to confer on a defendant cocounsel status
is within the sound discretion of the trial court which ‘should not permit a litigant both to
have counsel and to actively participate in the conduct of the case . . . unless the court on
a substantial showing determines that in the circumstances of the case the cause of justice
will thereby be served and that the orderly and expeditious conduct of the court’s
business will not thereby be substantially hindered, hampered or delayed.’ (Id., at
p. 797.)” (People v. Moore (1988) 47 Cal.3d 63, 77-78 (Moore I).)
       It is unclear whether defendant in the case before us wished to act as cocounsel
throughout his trial. It seems he simply wished to speak out whenever he desired. His
conduct was disruptive and defiant, and repeatedly hindered the orderly conduct of the
proceedings. There is no doubt that the cause of justice would not have been served by
permitting defendant to speak out whenever he wished to speak out. The trial court was
respectful toward defendant and protective of his right to a fair trial, but also properly
ensured that the progress of the trial was not unduly impeded by defendant’s outbursts.
We conclude the court exercised proper discretion in refusing to grant him de facto
cocounsel status.




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                                    DISPOSITION


      The judgment of conviction is affirmed.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                EDMON, J.*

We concur:




      EPSTEIN, P. J.




      WILLHITE, J.




*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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