PEOPLE v. COLBERT

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Court of Appeal, Second District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. George Kenneth COLBERT, Defendant and Appellant.

Cr. 43142.

Decided: July 08, 1983

Mark Lenenberg, Woodland Hills, under appointment by the Court of Appeal, for defendant and appellant. John K. Van De Kamp, Atty. Gen., Norman H. Sokolow and Shunji Asari, Deputy Attys. Gen., for plaintiff and respondent.

Defendant appeals from judgment entered on a jury verdict of guilty of burglary.   The sole appellate issue is whether the trial court committed reversible error in gagging and restraining defendant and subsequently removing him from the courtroom.

The home of Joanne and Anthony Rosso was entered in their absence, $85 in bills was stolen and the place was ransacked;  Ricky Harper 1 was identified as the one who removed the screen from the front window and broke the glass, and defendant as having pushed open the front door and entered the premises;  the two men were apprehended by police 30 feet from the gate to the Rosso apartment;  three twenty dollar bills were recovered from Harper, a twenty dollar and a five dollar bill were recovered from defendant.   A plaster cast of a footprint outside the window was similar to the cast of a shoe taken from Harper.

Defendant presented no defense.

I

DEFENDANT PROPERLY RESTRAINED

The court appointed Jack Hunt, private counsel, to represent defendant; 2  defendant insisted on a “speedy trial.”   On March 29 defendant's motion to proceed in propria persona was granted and the trial was set for June 1 on defendant's motion.   On June 1 defendant failed to appear and a bench warrant issued;  defendant was found in custody on another charge and brought to court;  on defendant's motion the trial was set for June 23, subsequently it trailed from day to day until June 29.

On June 29 defendant appeared for trial in propria persona;  asked if he wanted the public defender to represent him, defendant emphatically answered “No, I do not”;  at length the court explained to him the problems he may face representing himself but defendant said he had represented himself before in a criminal proceeding and was confident of his own ability.   At defendant's request the trial was continued for one week.   On July 6 the court appointed George Meadows to advise defendant in the event any legal questions arose during trial;  again asked if it was his desire to represent himself, defendant answered “Yes it is.”   Defendant requested another continuance representing he was deprived of use of the law library;  the court directed to the sheriff a letter for use of the library, then offered to provide defendant with its own books if necessary, and provided the transcript it had been using, the court's own office supplies, a yellow pad and two pens, and the police report.   Asked if he wanted anything else, defendant responded “That will do it.”   Defendant asked about witnesses;  the judge told him to give the court a list and he would have Mr. Meadows prepare subpoenas;  defendant asked for his codefendant Harper (in state prison) who “was with me when the crime took place”;  the court advised him to prepare declarations in support of the need and it would do its best to get the witnesses but reminded him that the week before, he had made no mention of the need to subpoena any witnesses.   Defendant became unruly and, in an exchange with him the judge told defendant that he “is going to run this courtroom ․ and you'll follow the rules of law;  and if you don't, you're going to have a problem with this court.”

On July 7 defendant made various motions which were denied as untimely;  he then asked the court to bring on the jury;  after a colloquy with the court defendant again told the court to proceed, then suddenly asked for a continuance because he was not ready for trial;  the court reminded him he had asked for two prior continuances which were granted and now he had to show good cause;  in the absence of such showing the request was denied.   Defendant announced he did not want Mr. Meadows to be his legal advisor and the court excused him.

After the jury was impaneled defendant became unruly making improper, disrespectful and profane statements to the judge and jury.   He interrupted the court and the prosecutor's opening statement whistling for five to seven minutes.   When asked if he wanted to make an opening statement defendant said “Goddamn right.”;   asked to step forward, defendant said “You goddamn right.   You heard what I said” then proceeded to talk to the jury 3 whereupon because of defendant's obscenities and profane language the court took a recess.   When court reconvened the judge apologized to the jury for the proceedings and at length admonished the jurors not to be in any manner prejudiced against defendant because of his foul and obnoxious language and that the People had a right to present their case uninterrupted, he had tried putting defendant in the rear of the courtroom so he would not bother the prosecutor, “nothing has worked,” and he has no alternative but to summon additional deputies to keep the security of the court and order defendant bound to prevent him from interrupting the proceedings.   Defendant was bound and gagged.4  We note that the gag was ineffective for he could and did talk.   Although defendant could not make timely objections, he could do so later and was given an opportunity to and did in fact cross-examine the first three witnesses.   During the testimony of the fourth witness, Deputy Linden, defendant apparently was not under restraint as he objected to some of the questions and spoke during the testimony then overturned the counsel table.   A recess was declared and the trial continued to July 12.

DISCUSSION

 As a matter of record there is a substantial showing of violent nonconforming behavior;  the trial court determined gagging and handcuffing to be the most suitable for defendant in the circumstances and instructed the jury that his conduct and his restraint should have no bearing on the determination of his guilt.   The record is replete with contemptuous, disrespectful, profane, obscene, abusive language directed by defendant to the judge, prosecutor, deputy sheriff, jurors and the judicial process resulting in countless disruptions of the orderly trial procedure.   One cannot read the reporter's transcript of the oral proceedings and not be impressed with the patience, courtesy and consideration shown to defendant by Judge McVittie in the face of defendant's insulting contemptuous conduct;  he bent over backwards in assuring that defendant was afforded due process and his rights were protected even permitting professional courtesies not ordinarily extended to defendants representing themselves.   In the interest of minimizing the likelihood of violence or other disruption in the courtroom the trial court is vested with discretion to order the restraint most suitable for defendant in the “attendant circumstances”.  (People v. Duran, 16 Cal.3d 282, 291, 127 Cal.Rptr. 618, 545 P.2d 1322.)   The “attendant circumstances” here clearly justified the physical restraint on defendant's movement and speech 5 imposed by the court which was reasonable and necessary to conduct the trial in an orderly and dignified manner (People v. Loomis, 27 Cal.App.2d 236, 239, 80 P.2d 1012);  there is manifest no abuse of judicial discretion.  (People v. Duran, 16 Cal.3d 282, 291, 127 Cal.Rptr. 618, 545 P.2d 1322).

II

DEFENDANT PROPERLY REMOVED FROM COURTROOM

On July 12 when court reconvened after a five-day recess, defendant made various insulting and accusatory statements to the court most of which consisted of the vernacular of the street which made them almost incoherent.   The judge advised defendant that if he behaved himself he could remain unshackled and unrestrained in the courtroom but defendant said, “No.   I would rather stay bound and gagged up.   That way when the appeal—when I send this to the appellate courts, I would like them to review how I got treated through this whole procedure.   I would like everything to keep on proceeding just like it was so I am going to sit here and just maintain.  [¶]  I would like the handcuffs to stay on.”   However, he promised to be quiet and the court warned him that if he did not behave himself it would have to remove him from the courtroom, “I have got the attorney conference room wired so that the proceedings will be directed into that room and I will have to take you into that room and have you held there while we conduct the trial.   I would rather not do that.   I would rather keep you here, but obviously you have created bedlam last week.”   Defendant said he would be quiet, make no outbursts and not overturn the table or curse;  upon that representation the court said that he would be unshackled “but if there is a further problem, then I have got no alternative but to take you into the adjoining room.”   Defendant again asked to remain under restraint to make a record on appeal 6 but the restraints were removed.

Following direct examination of the fifth and sixth witnesses defendant said nothing;  the court deemed his silence to be a waiver of his right to cross-examine.   The court as before told defendant he had the right of cross-examination of the seventh witness;  instead defendant delivered a diatribe against the district attorney;  by his silence defendant waived cross-examination of that witness and the eighth and ninth.   At the conclusion of the direct examination of the eighth witness, defendant reached across the counsel table and touched the sign reading “Defendant,” and the sheriff reached over and knocked it from his grasp.

At the conclusion of the People's case the court advised defendant he would now have an opportunity to present a defense.   Defendant made a long vitriolic statement about the judge and the deputies.   The court said, “You are prepared to go forward with the defense, Mr. Colbert, either testimony or—” but was interrupted by another diatribe;  the court then asked if he wanted to testify and defendant said he would like to present witnesses.   The court reminded defendant he had said he had a witness (Mr. James) in the county jail, but defendant said he wanted Ricky Harper then made another statement.   Defendant launched into an incoherent statement about Ricky Harper and made various accusations to the court.   After several more like statements the court reminded him that it had told him he could bring witnesses from a jail on proper affidavit;  defendant responded, “You told me, ‘No, I ain't bringing him in here and letting you all rendezvous.’ ”   When the court answered “You have never been told that, Mr. Colbert,” defendant twice accused the court of “sitting up there lying” and denying him all of his rights.   The court responded “The record will reflect that the defendant has decided not to present a defense at this time,” and defendant said “maybe you're a m f liar, man.   Ain't not decided to do a damn thing, man.”   The court declared a recess and excused the jurors until the following day.   The court then said, “The record should reflect that the reason I excused the jury is that Mr. Colbert once again overturned the counsel table and got into a violent conflict with all three bailiffs who were in this courtroom.   They had a violent confrontation and battle in the hallway adjoining the court and Mr. Colbert is now under control in the courtroom.  [¶] Once again, Mr. Colbert, I will give you an opportunity tomorrow morning to make an opening statement, if that's your desire.   You are free to ask for an attorney, if you want an attorney to help you with your defense.   I am willing to appoint an attorney once again to represent you.   We are here to answer of [sic ] your questions regarding law and procedure, if you want to do so at this point in time.”   Defendant made no comment.

On July 13 outside the presence of the jury, the court asked defendant if it was still his desire not to testify;  defendant answered “Yes”;  the court said it had the bailiff call county jail for J.C. James, but no one was there by that name.   Asked if there was anything further he wanted to say, defendant answered “No.”   The court then told defendant the prosecutor would present his closing argument to the jury during which “I am going to have you removed to the adjoining attorney conference room.   We have arranged microphones and the sound will be transmitted to that room for you, and the reason I am doing that is that previously you have sang in the court, you have whistled, you have disrupted the court by upsetting the counsel table, turning it upside down, and yesterday you had a very serious altercation with the deputy sheriffs․  Likewise, if you want to address the jury, you will be given an opportunity to do so.   I will have you taken into the attorney conference room, but we will have Mr. Wong [prosecutor] go first and then we will bring you out here to address the jury and argue your case, what you believe the evidence does show or does not show, and then you will go back in and Mr. Wong will be able to give his final argument after that.”   The jury was brought into the courtroom and defendant was removed to the attorney conference room.   The court again admonished the jury to disregard defendant's conduct, actions and statements and to follow the law, then said, “At all stages of the proceeding of this trial, the defendant has a right to be here.   We don't in this country conduct serious felony trials such as this in absentia, and as you know, I have had great difficulty in maintaining decorum in this courtroom, so I have arranged a facility.   The attorney conference room is immediately adjoining our courtroom.   We have a microphone from both the counsel table and the bench here, as well as the witness stand, although we are through with the witnesses today.  [¶] This will be electronically transmitted to the attorney conference room and I have Mr. Colbert there so that he can hear everything that is going on in this courtroom, and when Mr. Wong is through with his closing argument then I will bring Mr. Colbert in and he may elect to address you with his closing argument and I will give him that opportunity.”   The prosecutor then made his closing argument.   Defendant was brought into the courtroom and the court inquired “Mr. Colbert, were you able to hear the closing statements?” and defendant answered “Yes, I was.”   Asked if he desired to give a closing argument defendant said he was not prepared and did not know what to say;  after further colloquy the court made the finding that defendant had waived closing argument.   The judge explained to defendant that he had reviewed the jury instructions and put them on tape and would have the bailiff play the same to the jury.   Defendant was removed to the conference room while the jury was being instructed;  defendant was then returned to the courtroom.   After deliberating, the jury asked that the testimony of a witness be read;  again defendant was removed to the conference room where he heard the testimony read to the jury.

DISCUSSION

 After a five-day recess the court told defendant he could remain unshackled if he behaved himself but defendant said he would rather stay bound and gagged so he could make a record for reversal on appeal.   After a second like statement and the rather articulate and reasonable manner in which he addressed the court prior to trial and cross-examined some of the witnesses, it becomes painfully apparent that defendant deliberately engaged in disruptive tactics to use the court's restraint of him as a tool to obtain a reversal of his conviction on appeal.   Defendant was permitted to remain unbound and the court warned him that if he did not behave he would be removed from the courtroom and placed in an adjoining conference room wired for sound.   It was not long before he initiated several outbursts, directed obscenities to the court and jury and launched into a variety of diatribes, again overturned the counsel table and engaged in an altercation with the deputies.   Because of the foregoing and after defendant declined to present a defense, the judge had defendant removed from the courtroom to the adjoining conference room so that the prosecutor could make his closing remarks to the jury uninterrupted admonishing the jury not to be prejudiced about what had happened and ordering it to follow the law in determining defendant's guilt.   The removal was justified.  (§ 1043, subd. (b)(1), Pen.Code;  Illinois v. Allen (1970) 397 U.S. 337, 343, 344, 90 S.Ct. 1057, 1060, 1061, 25 L.Ed.2d 353.)   The Supreme Court in Illinois v. Allen held “that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continued his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.”  (P. 343, 90 S.Ct. p. 1060, fn. omitted.)

III

ABSENCE FROM COURTROOM

This is not the case of People v. Carroll, 140 Cal.App.3d 135, 189 Cal.Rptr. 327, so heavily relied on by appellant.   Carroll was convicted of first degree murder;  from time to time during the prosecutor's case-in-chief while testimony was being taken Carroll appearing in pro. per. was excluded from the courtroom for “disrupting the jury”;  “defendant's annoying activity amounted to no more than a repeated insistence on appointment of counsel” (p. 144, 189 Cal.Rptr. 327);  he was placed in a room in which he had no “access to the proceedings as could have been provided by electronic means” (p. 137, 189 Cal.Rptr. 327);  each time he said he was incompetent to represent himself and wanted court appointed counsel he was removed from the courtroom and no other alternative was attempted;  defendant engaged in no violent, abusive or profane conduct and there was no indication that it was impossible to proceed with the trial as a result of his repeated insistence on the appointment of counsel (p. 143, 189 Cal.Rptr. 327.)   The court concluded “that, under the circumstances of our case, the involuntary exclusion from the courtroom of a defendant who was representing himself, without other defense counsel present, was fundamental error requiring reversal without regard to prejudice.”  (P. 143, 189 Cal.Rptr. 327, emphasis added.)

There is little similarity between the circumstances here and those upon which the holding in Carroll was based.   Here defendant was not absent from the courtroom during any part of the People's case-in-chief or during the taking of any testimony or receipt of any evidence;  his absence was brief and occurred only during the prosecutor's closing argument and the jury instructions, and he was returned to the courtroom for whatever statement he wished to make;  defendant was placed in an adjoining conference room electronically equipped to permit him to hear and he did hear all that was said in the courtroom;  at all times he insisted on representing himself even asking that advisory counsel be relieved;  his disruptive conduct was not as tame and innocuous as Carroll's statements but a continuous course of disruption consisting of frequent interruptions, abusive, profane, insulting and obscene language directed to everyone in the courtroom, contemptuous statements, violent outbursts, whistling and singing in the courtroom, twice overturning the counsel table and fighting with the deputies;  before removing defendant the judge exhausted all practical alternatives first seating him in the back of the courtroom, then physically restraining him;  and it was impossible to proceed with the trial as a result of his violent and disruptive conduct it having become necessary to take defendant from the courtroom on three or four occasions and to declare several recesses.

In the circumstances here—the point in the trial at which defendant's removal occurred, the brief time he was absent (the prosecutor's closing argument is contained in only eight pages of reporter's transcript), his ability to hear all that was said in the proceedings in the courtroom, his return to the courtroom and opportunity to make whatever statement he desired—we are unable to find that any of his fundamental rights were abridged as a result of his removal.   Judge McVittie carefully preserved his rights by making certain that he heard all that transpired in the courtroom, returning him to the courtroom and giving him the opportunity to make a statement, the same as though he had been physically seated in the courtroom listening to the proceedings.   His only deprivation was the opportunity to further disrupt the prosecutor's closing argument (he whistled throughout the prosecutor's opening statement) and the jury instructions.   Defendant had access to the proceedings as provided by electronic means, and in our view during those times, he was constructively present in the courtroom—as much in the courtroom as though he had been physically sitting at the counsel table;  we cannot say that defendant was deprived of any of his rights.

As he had a right to do, defendant exercised his right of self-representation under Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, but as noted in Faretta the “right of self-representation is not a license to abuse the dignity of the courtroom.”  (P. 835, fn. 46, 95 S.Ct. 2541, fn. 46.)   During the entire trial proceedings defendant engaged in violent and disruptive conduct making it impossible to proceed with the trial.   Considering his reasonable conduct toward the judge prior to trial and his cross-examination of several witnesses, there can be no doubt that his continuous disruptive tactics were deliberately contrived to make a record upon which to base an appellate challenge to his conviction.   It would be a travesty on justice to allow such a defendant to manipulate the system by exercising his right to represent himself under Faretta and deliberately becoming unruly and disruptive securing exclusion from the courtroom, and then to obtain a reversal of his conviction on appeal by taking advantage of his wrongful conduct.

The judgment is affirmed.

I concur in and adopt the content and disposition of the lead opinion.   However, since this case represents another example of the problems foisted upon trial courts by Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, I feel compelled to expand on the particular problem faced by the trial court in the instant case and comment further on the full range of options listed in Illinois v. Allen (1970) 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 available to a trial judge when faced with disruptive courtroom behavior by a defendant who has been granted self-representation pursuant to Faretta.

On the heels of Faretta there was the spate of decisions involving claims of ineffectual waiver of counsel and wiley criminal defendants making matters even more difficult by treating such waivers as a game.  (See Witkin, Cal.Criminal Procedure (1978 pocket supp.) § 381A, p. 683.)

The instant case presents a situation where the defendant effectually waived counsel and refused “advisory counsel”, and through his outrageous courtroom language and conduct subjected the trial judge, paraphrasing People v. Carter, (1967) 66 Cal.2d 666, 667, 58 Cal.Rptr. 614, 427 P.2d 214, to the task of “navigat[ing] adroitly between the Scylla of [granting] a defendant the right to determine his own fate [and insuring his Constitutional rights are protected] and the Charybdis of [maintaining courtroom decorum].”

THE CASE AT BENCH

An expanded treatment of defendant Colbert's gross contemptuous verbal and physical conduct during the course of the proceedings appears warranted in order to paint a more graphic word picture of the flavor of the problems faced by the trial court and the court's efforts to insure that the defendant's rights were protected while maintaining courtroom decorum.

Here, prior to the trial, the court warned defendant Colbert that when he represented himself that he would be treated as if he were a lawyer.1

The defendant's conduct throughout the courtroom proceedings was outrageous.   During the pretrial stage the defendant referred to the proceedings as a “circus.”

On July 7, 1982, when the trial began but before the jury was called, the defendant misrepresented statements of the court concerning a 995 motion and said “Well, bring on the jury then because I rather really speak in front of the jury where I can have witnesses to this circus.”

After the jury was impanelled and during the opening statement by the prosecuting attorney, defendant Colbert whistled in the courtroom, disrupting the proceedings.   The trial judge then offered the defendant an opportunity to make an opening statement.   In response to this offer by the court during a colloquy with the trial judge in the presence of the jury, the defendant used such street language as “goddamn;”  “shit;”  “motherfucking mouth;”  and “bullshit.”   The defendant accused the judge of being “old, sick, crazy;”  told the court “fuck you and your contempt of court;”  and again referred to the trial as a “circus.”   This tirade necessitated the judge to recess the court.2

The record shows that upon reconvening the trial, with the jury present in the courtroom and before the prosecution's first witness was called, the defendant was shackled and gagged at the counsel table.   The trial judge explained to the jury why it was necessary to restrain and gag the defendant.3

The record further reflects that the defendant was physically present in the courtroom during the entire time the prosecution conducted direct examination of the People's witnesses whose testimony is summarized in the lead opinion and that the defendant Colbert was given an opportunity to cross-examine the People's witnesses and he either conducted cross-examination or waived cross-examination of all prosecution witnesses.

Just prior to the court recessing following the first day of evidence, the court made the following statement for the record:

“THE COURT:  The record will reflect the defendant has overturned the counsel table and it rolled over against the bench and he is being removed bodily by the deputy sheriffs.

“At this time, ladies and gentlemen, I think it is appropriate that we take our recess for the day.”  (Emphasis added.)

When the court reconvened, and out of the presence of the jury, the court stated to the defendant:

“Since we are going forward, Mr. Colbert, last week you either sang or whistled when the district attorney was inquiring of various witnesses and then later you turned over the counsel table.  [¶]  If you can restrain yourself, I am willing to have you unshackled, let you speak out without any kind of restraining device.  [¶]  What is your position?   This Court is willing to be fair to you, if you are willing to be fair to the Court, to the proceedings.”

Whereupon, the defendant declined the judge's offer and stated that he would “rather stay bound, gagged up” because “I am going to appeal and I know I am going to win the appeal.”   The defendant indicated that he would behave himself and was unshackled.4

Following the foregoing, each time the prosecuting attorney completed direct examination of each one of the People's witnesses, the court addressed the defendant directly and offered him an opportunity to cross-examine each witness.   The court stated in the record that the defendant waived cross-examination.5

After the People rested its case-in-chief, the court advised the defendant that “the defense has an opportunity to present a defense, if they elect to do so.”   The defendant then launched into a tirade how the court's actions did not allow him to make a defense, and accused the trial judge of “lying” and that the judge was a “coward” and a “mother-fucking liar.”   The court found that the defendant had waived his right to present a defense and excused the jury.6

After the jury was excused, the trial judge made the following statement for the record:

“THE COURT:  The record will reflect that we are back in the courtroom.   I have excused the jury until 10:00 o'clock tomorrow morning.  [¶]  The record should reflect that the reason I excused the jury is that Mr. Colbert once again overturned the counsel table and got into a violent conflict with all three bailiffs who were in this courtroom.   They had a violent confrontation and battle in the hallway adjoining the court and Mr. Colbert is now under control in the courtroom.  [¶]  Once again, Mr. Colbert, I will give you an opportunity tomorrow morning to make an opening statement, if that's your desire.   You are free to ask for an attorney, if you want an attorney to help you with your defense.   I am willing to appoint an attorney once again to represent you.   We are here to answer of [sic ] your questions regarding law and procedure, if you want to do so at this point in time.  [¶]  All right.   [¶]  The record will reflect there is no statement from Mr. Colbert.   He will be ordered back here at 10:00 o'clock tomorrow.   If he does not have a witness, if he is not prepared to go forward at that time, Mr. Wong, we will hear your closing argument and we will instruct the jury.  [¶]  Then I will give the case to them for deliberation.”

When the court reconvened on July 13, 1982, out of the presence of the jury, the court advised the defendant that “as a courtesy to [him] that [the judge] did make a phone call, or have the bailiff call and try to locate [a Mr. J.C. Jones in the Los Angeles County Jail]” and that “there [was] no such person in custody.”   The court asked the defendant:  “Is there anything further at this time, Mr. Colbert, in connection with your defense?” and the defendant answered “no.”

Prior to closing arguments, the court advised the defendant as follows:

“THE COURT:  All right.   Mr. Wong, are you prepared to argue?

“MR. WONG:  Yes, I am, Your Honor.

“THE COURT:  This is the time, Mr. Colbert, when the parties can argue their case to the jury.   During Mr. Wong's closing argument, I am going to have you removed to the adjoining attorney conference room.   We have arranged microphones and the sound will be transmitted to that room for you, and the reason I am doing that is that previously you have sang in the court, you have whistled, you have disrupted the court by upsetting the counsel table, turning it upside down, and yesterday you had a very serious altercation with the deputy sheriffs.  [¶]  It is not fair to them to risk their safety by having altercations with someone.   I know that you just lost your temper yesterday and that happens, but you are going to have to restrain yourself.   Do you understand that, sir?

“THE DEFENDANT:  Yes, I do.

“THE COURT:  All right.   Likewise, if you do want to address the jury, you will be given an opportunity to do so.   I will have you taken into the attorney conference room, but we will have Mr. Wong go first and then we will bring you out here to address the jury and argue your case, what you believe the evidence does show or does not show, and then you will go back in and Mr. Wong will be able to give his final argument after that.”

After the defendant had been removed to the attorney conference room wired for sound from the courtroom, the court called in the jury and addressed them as follows:

“THE COURT:  Good morning, ladies and gentlemen.  [¶]  When I retired from the Legislature a little over a year ago, my friends thought I would find life as a judge too dull.   It seems like it is not this way in this case.  [¶]  As you know and I have instructed you before, you must disregard all of the statements from either side, either the attorney, Mr. Wong, or the defendant, Mr. Colbert, and you may only consider as evidence those statements that come in through the witness stand and the various exhibits that I have allowed into evidence.  [¶]  If you are unhappy with the way I have conducted this trial, you are not to take that out on the District Attorney's Office, the People.  [¶]  We have an adversary system in this country and there are two sides, and although I am part of the judicial branch, the People are totally separate from the judicial branch, and they should not be prejudiced in your eyes by anything the Court may have done.  [¶]  Likewise, when I say you must follow the law, that is to consider only the evidence which is evidence coming in through this witness stand, you are not to consider in any way either the statements of the defendant either for him or against him.   His actions and his conduct are not to be deemed evidence.   They are not to be deemed admissions and you are not to hold that against him in any fashion, or you are not to believe what he says from the counsel table and use that to support him.  [¶]  Those statements are not to be considered by you and you must disregard them.  [¶]  Now, at this point in time, the parties generally give closing arguments on the case and, once again, these arguments are not statements of evidence.   Mr. Colbert and Mr. Wong may address you and indicate to you what they believe the evidence has shown and that's what we call closing argument, and the People generally go first and then we have an opportunity for the defendant to present his case to you, and then finally, since the People have the burden of proof, Mr. Wong will close.  [¶]  Now, let me admonish you once again, the defendant does not have to present any evidence under our system of justice.   If the People fail to prove their case beyond a reasonable doubt, then you are directed by me to bring in a finding of not guilty.   That is the law and you must follow the law.  [¶]  At all stages of the proceeding of this trial, the defendant has a right to be here.   We don't, in this country, conduct serious felony trials such as this in absentia, and as you know, I have had great difficulty in maintaining decorum in this courtroom, so I have arranged a facility.   The attorney conference room is immediately adjoining our courtroom.   We have a microphone from both the counsel table and the bench here, as well as the witness stand, although we are through with the witnesses today.  [¶]  This will be electronically transmitted to the attorney conference room and I have Mr. Colbert there so that he can hear everything that is going on in this courtroom, and when Mr. Wong is through with his closing argument, then I will bring Mr. Colbert in and he may elect to address you with his closing argument and I will give him that opportunity.  [¶]  Mr. Wong, are you ready to proceed?

“MR. WONG:  Yes, I am, Your Honor.

“THE COURT:  Go ahead.”

Following closing argument by the prosecuting attorney, the court stated:

“THE COURT:  Thank you, Mr. Wong.  [¶] Ladies and gentlemen, I am going to excuse you briefly to the jury room.   I want to inquire of the defendant to see whether he wants to make a closing argument to you.

(The jurors were excused.)

“THE COURT:  The record will reflect that the jury has been excused and they are in the jury room at this time.  [¶] Mr. Colbert has been brought out to the courtroom.  [¶] Mr. Colbert, were you able to hear the closing statements?

“THE DEFENDANT:  Yes, I was.

“THE COURT:  Do you desire to give a closing argument at this time yourself?

“THE DEFENDANT:  I didn't even prepare to write nothing because I have no legal material to even research or make no type of closing argument.   No, I cannot.   I don't know what to say.

“THE COURT:  All right.   Then I am going to instruct the jury.   I have to make a finding—I am going to find a waiver of your right to make a closing argument and the record will reflect that and the record will reflect your statements, sir.  [¶] I have jury instructions which I have reviewed and I have dictated on tape into a tape recording machine and I am going to have the bailiff play that tape recording of the instructions to the jury and I will give them the tape machine so that they can take it to the jury room with them.   I will also give them the written instructions for their use as well.   [¶] Mr. Colbert, I am going to remove you from the courtroom again while I give those instructions.

“THE DEFENDANT:  All right.”

At the sentencing hearing the defendant made a written motion for a new trial on three points.   In denying the motion the court stated:

“THE COURT:  All right.   Mr. Colbert, let me comment briefly on your three points.  [¶] When you were originally sent to Department L, this department, for trial, you requested a continuance at that time.   I asked you if one week would be sufficient, and you indicated, yes, it would be.   At your request I continued the matter for one week to give you an opportunity to prepare for your defense.  [¶] Secondly, insofar as your right to counsel is concerned, I asked you if you would like to have an attorney appointed to represent you.   You said no.   Then I indicated that the court would appoint an attorney to advise you or to sit in the back of the court and give you legal information or advice on procedures.   And I did that, initially.   But you rejected him and did not want him.   That was Mr. Roger Meadows.   So I feel that your motion was originally granted by another department of this court to represent yourself.   And you had ample opportunity to rescind that motion.   And it was your decision to represent yourself throughout these proceedings.  [¶] And then your last point, in terms of your being gagged, throughout the proceedings you raised turmoil in the court.   The jury couldn't hear from Mr. Wong, because you were making so much noise.   You constantly referred to the court as a ‘racist mother fucker,’ among other expletives you used.   This is not the type of language that citizens who come in from outside the street should have to be exposed to.   The court has attempted to be indulgent with you throughout the proceedings.   And, frankly, it's been this court's experience that you did have a fair trial.   And there is no legal ground for a new trial at this time.   And so, of course, your motion is denied.”

At the time of sentencing following defendant's conviction by the jury, the court, prior to imposing sentence on defendant Colbert to the upper three year term to state prison, stated:

“THE COURT:  All right.   Let the record indicate, Mr. Colbert, that first of all, in terms of remorse, I observed conduct and mannerisms throughout the trial and afterwards, as well as your statements to the probation department, and you have demonstrated no remorse whatsoever for the offense for which you have been convicted.   Secondly, throughout the proceedings you maintained a disrespect in terms of judicial process.   You have used vulgar and violent language throughout the trial.   You've been rude and discourteous to not only opposing counsel, but also to the court and the court personnel.   Frankly, you could have injured someone when you turned the counsel table over.   I was most indulgent that you weren't shackled after you did that.   And you went ahead and did it a second time.   You attempted to flee the courtroom.   Frankly, these officers carry loaded weapons.   One of them could have fallen out of a holster in the scuffle.   Somebody could have been seriously injured.  [¶] You have constantly misrepresented the facts, stating you are going to appeal the matter.   You have misrepresented facts on the record.   You have fabricated on the record, and you continue to do so.  [¶] In connection with other circumstances, I note that the probation department, on page six of their original report, indicates that you have had professionalism with which the crime involved here was carried out.   And they indicate that they feel that the burglary was premeditated.   They point out that your prior history shows a pattern of violent conduct, which indicated a serious danger to society.   They further point out that you were adjudicated for various criminal involvement as a juvenile on numerous occasions.   They further point out that your prior performance on both probation and parole are unsatisfactory.  [¶] The court also notes that you have had an opportunity to address the court in terms of sentencing.   And, frankly, you indicated that you would accept upper term.   Under the circumstances, frankly, there is no alternative but to sentence you to three years, the upper term, for the charge of burglary in the second degree.   And that is your sentence, three years in the state penitentiary.   I will accommodate your request that you be sentenced or sent directly to a CIM forthwith.   And I will direct the clerk to put that in the minutes.   So if you do dispose of this other pending case, you can go directly to state prison.  [¶] And, also, let me indicate to you that you have previously been given notice of your right to appeal.”

DISCUSSION

The trial court, in the case at bench, correctly made a decision to use physical restraints, not as a general policy, but based on the specific conduct of defendant Colbert in this particular case hereinbefore described.   The trial court also spread upon the record a clear showing of necessity for taking such action.  (See People v. Duran (1976) 16 Cal.3d 282, 127 Cal.Rptr. 618, 545 P.2d 1322.)   Furthermore, in making the decision to shackle and gag the defendant, the trial court properly exercised its discretion by employing one of the three methods declared constitutionally permissible for handling obstreperous defendants by the United States Supreme Court in Illinois v. Allen, supra, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353.

In Illinois v. Allen, supra, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353,  the United States Supreme Court was faced with the question of whether or not an accused can claim the right to be present in the courtroom at every stage of his trial (a basic right guaranteed by the Confrontation Clause [Sixth Amendment] of the United States Constitution) while he engages in speech and conduct which is so noisy, disorderly and disruptive that it is exceedingly difficult or wholly impossible to carry on the trial.   The Supreme Court held that the right can be lost by consent or misconduct.   The court stated, “we explicitly hold that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.   Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.  (90 S.Ct. 1060, 25 L.Ed.2d 359.)”

The Allen court added:  “ ‘We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case.   No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations.   We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen:  (1) bind and gag him, thereby keeping him present;  (2) cite him for contempt;  (3) take him out of the courtroom until he promises to conduct himself properly.’   (90 S.Ct. 1061, 25 L.Ed.2d 359.)   Although a contempt sentence might not be significant, another aspect of contempt is ‘the judge's power, when exercised consistently with state and federal law, to imprison an unruly defendant such as Allen for civil contempt and discontinue the trial until such time as the defendant promises to behave himself․  It must be recognized, however, that a defendant might conceivably, as a matter of calculated strategy, elect to spend a prolonged period in confinement for contempt in the hope that adverse witness might be unavailable after a lapse of time.’  (90 S.Ct. 1062, 25 L.Ed.2d 360.”  (Emphasis added.)

In the instant case, the trial court's problems in handling the situation were compounded by the United States Supreme Court case of Faretta v. California, supra, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, decided five years after the Allen case was handed down.

In Faretta the trial court had appointed the public defender to represent defendant although the latter vigorously sought to appear and proceed without counsel in propria persona.  Faretta held that the denial of self-representation was impermissible under the Sixth Amendment stating in the concluding paragraph of the majority opinion:  “In forcing Faretta, under these circumstances, to accept against his will a state-appointed public defender, the California courts deprived him of his constitutional right to conduct his own defense․  (422 U.S. at p. 836, 95 S.Ct. at p. 2541, 45 L.Ed.2d at p. 582.)”

Here, the trial judge was confronted with a situation where the defendant had been granted self-representation apparently in conformance with Faretta and also refused “advisory” counsel to assist him during the trial, and then proceeded to become so disruptive, contumacious and defiant that it was impossible to proceed with the trial in an orderly manner.

Faced with the defendant's outrageous conduct as heretofore graphically described in some detail, the trial judge, whose patience not only exceeded that of Job but also surpassed any “judicial temperament” which might be generally considered adequate for sitting judges, was clearly justified in taking one of the three courses of action listed as constitutionally permissible in Allen under such circumstances.

In the case at bench, the trial judge elected, as he was entitled to do under the circumstances, to employ the first possible course of action as discussed in Allen, i.e., “(1) [by] bind[ing] and gag[ging] [defendant Colbert], thereby keeping him present” in the courtroom during the presentation of evidence.

The trial judge in the instant case, exercising his discretion, rejected the second possible course of action as discussed in Allen, i.e., cite for contempt of court, for the reasons stated in footnote 3, supra.   In any event, unquestionably, utilizing this course of action by the trial court in an effort to restore decorum to the courtroom would be ineffectual in light of the defendant's emphatic statement to the court:  “Contempt of court, fuck you and your contempt of court, man.”  (See footnote 2, supra.)  (Emphasis added.)

In my view, in the instant case it was not feasible for the trial court to adopt the third alternative course of action listed in Allen, i.e., removal of the defendant from the courtroom while the People were putting on their case, since the defendant had been granted self-representation pursuant to Faretta and had refused “advisory” counsel.   Thus, there was no counsel in the courtroom to represent defendant's interest while the evidentiary phase of the trial was being conducted during the defendant's absence.  (See for example People v. Booker (1977) 69 Cal.App.3d 654, 138 Cal.Rptr. 347.)

In the wake of Faretta, I suggest for future guidance of trial courts confronted with a similar situation as presented in the instant case, that a trial court could avail itself of the full range of all three options discussed in Allen, including the third alternative (removing the defendant from the courtroom) by using its inherent power to appoint “standby” counsel to move in and represent the defendant if it becomes necessary to remove the defendant from the courtroom to a wired room so the trial could proceed in an orderly fashion.

As the lead opinion points out, Faretta 422 U.S. at page 835 in footnote 46, 95 S.Ct. at page 2541 in footnote 46, stated that the “right of self-representation is not a license to abuse the dignity of the courtroom.”   The majority opinion in Faretta does not mandate appointment of “advisory” counsel.   However, the question was posed by Mr. Justice Blackmun in his dissent where he said:  “[I]f a defendant has elected to exercise his right to proceed pro se, does he still have a constitutional right to assistance of standby counsel? ․”  (Italics in original.)  (Faretta v. California, supra, 422 U.S. 806, 852, 95 S.Ct. 2525, 2549, 45 L.Ed.2d 562.)   The majority opinion in Faretta did not address this question of a right to “advisory” or “standby” counsel directly.   Instead it expressed permissive approval only in footnote 46 (422 U.S. at pp. 834–835, 95 S.Ct. at p. 2541) when it said:  “[O]f course, a State may—even over objection by the accused—appoint a ‘standby counsel’ to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant's self-representation is necessary.  [Citation.]”  (Italics added.)

Indeed in the instant case, in my view, the trial court offered defendant Colbert more than he was entitled to when it offered him “advisory counsel” which defendant rejected, for the reasons pointed out in my concurring opinion in Chaleff v. Superior Court (1977) 69 Cal.App.3d 721, 138 Cal.Rptr. 735.   Clearly when a defendant elects to represent himself, he is his own counsel.   He should not be allowed to have it both ways.   Even though a defendant has the right to represent himself, he still is not entitled to counsel who will serve jointly or alternatively with him, at his pleasure, in presenting the case to the jury.  (See also People v. Wheeler (1977) 68 Cal.App.3d 1056, 1059, 137 Cal.Rptr. 791.)   Moreover, a defendant appearing in propria persona whispering with “advisory counsel” throughout the trial would tend to impede rather than insure an orderly, expeditious and efficient administration of justice.

However, in Chaleff, having concluded that a trial court does not have the power to appoint “advisory” counsel, I concluded that it does have the inherent power to appoint “standby counsel,” and that the distinctions between the duties performed by “advisory” and “standby” counsel are real and could have a long range impact on the orderly and efficient administration of justice, especially in light of the Pandora's box opened by Faretta.

In Chaleff in footnotes 6 and 7, 69 Cal.App.3d at page 731, 138 Cal.Rptr. 735, I described the difference between “advisory” and “standby” counsel as follows:

“I construe the term ‘advisory counsel’ to mean an attorney who is present in the courtroom at the defendant's side, does not speak for him, and does not participate in the conduct of the trial but only gives him legal advice.

“I construe the term ‘standby counsel’ to mean an attorney who is present in the courtroom and follows the evidence and proceedings but does not give legal advice to the defendant.   He ‘stands by’ in the event it is necessary for the trial court to revoke defendant's in propria persona status or even remove the defendant from the courtroom because of disruptive tactics so the case may proceed in an orderly manner to verdict.”

In sum, in my opinion, in the wake of Faretta, in order for a trial court to avail itself of the full range of options discussed in Allen, including number 3, in cases where defendants have been granted self-representation but through obstreperous conduct are destroying courtroom decorum and impeding judicial proceedings, the trial court has the inherent power to appoint “standby counsel” to move in and represent the defendant if it becomes necessary to terminate the defendant's self-representation and to remove him from the courtroom to a wired room.

There is also statutory authority supporting the trial court's decision in the case at bench to remove defendant Colbert from the courtroom during the closing phase of the trial argument, even though not represented by counsel, since it did not abridge his right to confront witnesses against him as provided in the Sixth Amendment.  Penal Code section 1043, as amended in 1977, provides that in a felony trial defendant can be removed from the courtroom and the trial may continue after it has begun in the defendant's presence if “the defendant, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that the trial cannot be carried on with him in the courtroom.”  (Pen.Code, § 1043, subd. (b)(1).) 7

Finally, in any event, even if the shackling and gagging of defendant Colbert in the presence of the jury during the presentation of evidence and his removal from the courtroom to another room wired for sound during closing argument by the prosecuting attorney constituted error (which it was not), such error was not reversible because the evidence presented to the jury inculpating the defendant compelled without question the guilty verdict.8  By reason of the foregoing, there was no reasonable probability that a result more favorable to defendant Colbert would have resulted in the absence of the error.   To put it in terms of Chapman v. California (1966) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, even if error was present, it was harmless to defendant Colbert “beyond a reasonable doubt.”  (See also People v. Prado (1977) 67 Cal.App.3d 267, 276, 277, 136 Cal.Rptr. 521, petn. for rehg. den., S.Ct. Apr. 14, 1977.)

Defendant Colbert was fairly tried and justly convicted.

FOOTNOTES

1.   Codefendant Harper was sentenced to state prison before defendant's trial;  he is not a party to this appeal.

2.   At that time Ricky Harper was represented by the public defender and because of a conflict of interest with Harper the public defender who was representing defendant was relieved.

3.   We include the following as but one example of defendant's verbal abuse.“THE DEFENDANT:  Shit.   Don't know what all this m f mouth is about man.   It ain't nothing but a bunch of bullshit.“THE COURT:  Do you want to make an opening statement?“THE DEFENDANT:  I'm making it, ain't I?   I'm up here talking.  [¶] I don't—hey man.   For one thing, man, mostly for the record because, hey, the jury, they ain't never been through no trial like this before man.“THE COURT:  Mr. Colbert.“THE DEFENDANT:  Excuse me.   Somebody sitting in the courtroom man, that is a circus.   You know what I am saying?   Where are the clowns and whatnot, you know?“THE COURT:  The record—Mr. Colbert—“THE DEFENDANT:  This ain't nothing but a circus and the DA is going to sit up here and telling me that $25 in my pocket belongs to somebody and that's—“THE COURT:  If you continue in your fashion, you will be deemed to have waived your opening statement.   You can only indicate what you feel your defense will show, Mr. Colbert.“THE DEFENDANT:  What defense, man?   You denied me to have any witnesses here.   Maybe you're crazy.   You told me I can't have no witness.“THE COURT:  Anything further, Mr. Colbert?   You will be deemed to have waived your—“THE DEFENDANT:  No.   No.  I ain't going to be deemed nothing.   I would like to show a 995.“THE COURT:  Do you want to give an opening statement?“THE DEFENDANT:  Don't give me the six, two, three, four, whatever years.   Them years don't scare me, you know what I a saying?   They don't scare me.   Contempt of court, f you and your contempt of court, man.“THE COURT:  All right.“THE DEFENDANT:  What—I am saying, hey—hey, man, f that, man.   I am talking now and the DA is going to sit up here and say that I had 25 damn dollars.   How the hell is he going to tell what I took.“THE COURT:  Mr. Bailiff, take him upstairs and have him—he is deemed to have waived his opening statement.“THE DEFENDANT:  I ain't waived shit, man.“THE COURT:  We will have him—“THE DEFENDANT:  How have you ever been through a mother—a jury like this that ain't—“THE COURT:  Mr. Bailiff, take him upstairs.“THE DEFENDANT:  They going to take me way in the back of the court, you know what I am saying?   This ain't no trial.   The Judge is crazy, hey.“THE COURT:  Upstairs.“THE DEFENDANT:  You all understand English, man?   This is not no trial.   Hey, I know putting handcuffs on me in the courtroom, that is strictly prohibited, do you know what I am saying?   This is not no trial.   The man's wasting you all the same.   The Judge, old, sick, crazy.   I mean, you have escaped from some old state pen house.  [¶] Ain't no trial, man.   You know what I am saying?   What trial ever sent like this?”

4.   It is difficult to tell in what manner defendant was gagged;  his physical restraint consisted of handcuffs.

5.   The record shows that defendant could speak while gagged;  he was given the opportunity to and did in fact cross-examine the witnesses.   He spoke during the testimony of the fourth witness and gave statements at the close of other testimony.   Appellant complains he was not permitted to make timely objections but the court gave him the opportunity to make any he might have had to the questions of the prosecutor at the close of the direct examination when given the opportunity to cross-examine.   We note that no objection or motion to strike testimony was made to any of the prosecutor's questions and further, no specific objection or assignment of error based on the prosecutor's questions is raised on this appeal.

6.   “I would like—like I said, I would like the record to reflect I would rather stay like I am because I was like this the whole procedure of the whole trial and there is no use in the Court trying to make like I was not, you know.   I am going to appeal and I know I am going to win the appeal because this was illegal day one to do me like this and I would like everything to remain just the same.  [¶] No use cleaning up the act now because I already got treated that way, you know.   Deputies standing behind me and saying I am a danger, risk.   Every time I walk over there to ask the witness questions, they sent one over.   I ain't make a threatening motion toward anybody in this courtroom, yet I got treated like I was a hard criminal or something.”

1.   The reporter's transcript contains the following colloquy between the court and the defendant:“THE COURT:  All right, Mr. Colbert, you have a right to represent yourself.“I would just indicate that if you do intend to represent yourself, that the Court will have to treat you as if you were a lawyer with respect to this matter and if the results don't come out the way you want them to come out, you can't start over and ask for a lawyer and get another trial.“Do you understand that?“DEFENDANT COLBERT:  Right.”

2.   The following colloquy took place:“THE COURT:  The record will reflect that you have been whistling in the courtroom for the last five to seven minutes.  [¶] At this point in time, Mr. Colbert, you have an opportunity to make an opening statement.   Would you like to exercise—“THE DEFENDANT:  Goddamn right.“THE COURT:  —your right?   Come forward, Mr. Colbert.“THE DEFENDANT:  You goddamn right.   You heard what I said.“THE COURT:  Bring him forward.“THE DEFENDANT:  Shit.   Don't know what all this motherfucking mouth is about, man.   It ain't nothing but a bunch of bullshit.“THE COURT:  Do you want to make an opening statement?“THE DEFENDANT:  I'm making it, ain't I?   I'm up here talking.  [¶] I don't—hey, man.   For one thing, man, mostly for the record because, hey, the jury, they ain't never been through no trial like this before, man.“THE COURT:  Mr. Colbert.“THE DEFENDANT:  Excuse me.   Somebody sitting in the courtroom, man, this is a circus.   You know what I am saying?   Where are the clowns and whatnot, you know?“THE COURT:  The record—Mr. Colbert—“THE DEFENDANT:  This ain't nothing but a circus ․“THE COURT:  If you continue in your fashion, you will be deemed to have waived your opening statement.   You can only indicate what you feel your defense will show, Mr. Colbert.“THE DEFENDANT:  What defense, man?   You denied me to have any witnesses here.   Maybe you're crazy.   You told me I can't have no witness.“THE COURT:  Anything further, Mr. Colbert?   You will be deemed to have waived your—“THE DEFENDANT:  No.   No.  I ain't going to be deemed nothing.   I would like to show a 995.“THE COURT:  Do you want to give an opening statement?“THE DEFENDANT:  Don't give me the six, two, three, four whatever years.   Them years don't scare me, you know what I am saying?   They don't scare me.   Contempt of court, fuck you and your contempt of court, man.“THE COURT:  All right.“THE DEFENDANT:  What—I am saying, hey—hey, man, fuck that, man․“THE COURT:  Mr. Bailiff, take him upstairs and have him—he is deemed to have waived his opening statement.“THE DEFENDANT:  I ain't waived shit, man.“THE COURT:  We will have him—“THE DEFENDANT:  How have you ever been through a mother—a jury like this ain't—“THE COURT:  Mr. Bailiff, take him upstairs.“THE DEFENDANT:  They going to take me way in the back of the court, you know what I am saying?   This ain't no trial.   The Judge is crazy, hey.“THE COURT:  Upstairs.“THE DEFENDANT:  You all understand English, man?   This is not no trial.   Hey, I know putting handcuffs on me in the courtroom, that is strictly prohibited, do you know what I am saying?   This is not no trial.   The man's wasting you all the same.   The Judge, old, sick, crazy.   I mean, you have escaped from some old state pen house.  [¶] Ain't no trial, man.   You know what I am saying?   What trial ever went like this?“THE COURT:  Ladies and gentlemen, why don't you take 15 minutes.   We will see you back in this courtroom in 15 minutes.“THE DEFENDANT:  Man, this ain't no damn trial, it ain't.“THE COURT:  We will see you back here at twenty minutes of 3:00.   In the meantime, you are admonished not to discuss this case among yourself or with anyone else.   If you want to go upstairs, you can.   Make your phone calls, but be back here at twenty minutes of 3:00.”(Recess.)

3.   “THE COURT:  All right.  [¶] The record will reflect the ladies and gentlemen of the jury are back in their proper seats.  [¶] Ladies and gentlemen, we have had all kinds of problems today with the conduct of the trial and I apologize to you.   These things do happen.  [¶] Under our system of justice, the defendant has the right to be present at all times in a felony trial, and I insist that Mr. Colbert be here with us while the People present their case.   At times unusual actions must be taken in order to control the proceedings and that's my responsibility.  [¶] I have certain powers within me.   I can find a defendant guilty of contempt of court when they act out and punish them with a jail sentence every time they act out.   In terms of my particular feelings, I don't feel that power should be used in that fashion.   I feel that people who speak out against the political system for one reason or another should be tried for their main offense and I don't feel that additional punishment is particularly appropriate, and I don't feel that I am going to exercise the contempt power in this particular case against someone who wants to speak out against the system.  [¶] The district attorney does have the burden of proof.   He must prove his case and the defendant, frankly, does not have to present any evidence whatsoever.   He does not have to establish innocence and despite all of his outbreaks, he is still presumed innocent and he must be given the benefit of that presumption.  [¶] You are instructed at this time and you will be instructed later to follow it.   You are not to hold his actions against him in terms of the case in chief.  [¶] The people have the burden of proof to prove up their case, despite any of the actions taken by the defendant in this particular case, and you will be instructed later, and I insist that you follow the law in this case.  [¶] I do feel in fairness to you folks that you don't have to personally suffer personal indignities from any defendant.   You don't have to listen to foul, obnoxious language and I don't feel that people coming in off the street have to be embarrassed or humiliated in terms of the court proceeding.  [¶] I have attempted to exercise various methods in dealing with this defendant.   I have talked to him.   I have tried not to abuse him with power.   I have tried to appoint an attorney to advise him, if not to represent him, to advise him.   I have tried to give him an opportunity to prepare his case.   I have tried to put him in back of the courtroom where he wouldn't bother the People in the presentation of their case.   Nothing has worked.  [¶] The People have rights, too, in terms of the prosecution.   The defense has the right to present their defense and be present, participate in the proceedings, but likewise, I have to recognize the right of the prosecution.   They have an absolute right to go ahead and present their case without undue interference, and so at this point in time the record should reflect that I had no alternative but, first of all, to summon additional help down here since I have a serious security problem in my court and, secondly, I have had to take methods to insure that although the defendant will be personally present and can listen to the proceedings, that he will not speak out again and disrupt the proceedings, and I have instructed the bailiff and sheriffs' office to make sure that the defendant is approrpiately [sic ] bound so that he cannot speak out and interrupt the proceedings.  [¶] I will instruct the district attorney to present his case, and when the time comes for cross-examination, at that point in time, this defendant who has elected to voluntarily represent himself, will have an opportunity to cross-examine, as long as it is properly done so and within the bounds of law and reason.  [¶] Mr. Wong, at this point in time—“THE DEFENDANT:  At this time, I would like the record to reflect myself—I can speak, man.   Hey, man, I can speak.   Will you let him know that I can speak right now?“THE COURT:  Mr. Colbert, we are going to proceed with the People's case.“THE DEFENDANT:  Could I just put something on the record, that you ordered a Kotex be taped over my mouth.   A Kotex, something that a woman wears and they got toilet paper and everything on there.“THE COURT:  Mr. Wong, go ahead with your first witness.“MR. WONG:  Thank you, Your Honor.   At this time—“THE COURT:  Ladies and gentlemen, before we do this, understand this.   This is my decision.   This is a proceeding that is not done at the request of the People.   Their concern is that there might be an unfair bias against them because of the method in which the defendant is being handled.   I think all of you should know I am doing the best I can under the circumstances.   If you are upset in the method in which I conduct my proceedings, hold it against me, not against either side.  [¶] Both are entitled to present their case and have a fair trial.  [¶] Go ahead, Mr. Wong.“MR. WONG:  Thank you, Your Honor.   I will call Miss Joanne Rosso.“THE DEFENDANT:  You ain't getting away with that Kotex shit, man.”

4.   The colloquy between the court and the defendant in this respect was as follows:“․“THE COURT:  Mr. Colbert, you haven't really answered my question.   If you can handle yourself—.“THE DEFENDANT:  No.   I would rather stay bound, gagged up.   That way when the appeal—when I send this to the appellate courts, I would like them to review how I got treated through this whole procedure.   I would like everything to keep on proceeding just like it was so I am going to sit here and just maintain.  [¶] I would like the handcuffs to stay on.“THE COURT:  But in terms of keeping quiet, you are going to—“THE DEFENDANT:  Ain't going to say one word at all, not one word.“THE COURT:  You will behave yourself.   The reason I ask that is I have got the attorney conference room wired so that the proceedings will be directed into that room and I will have to take you into that room and have you held there while we conduct the trial.  [¶] I would rather not do that.   I would rather keep you here, but obviously you have created bedlam last week.  [¶] If you can restrain yourself until such time as comes your opportunity to cross-examine or make succinct objections, I will be willing to keep you here and, frankly, have you unchained.“THE DEFENDANT:  I already stated that I ain't going to say nothing at all.   I ain't going to make no outbreaks.   I ain't going to do nothing but sit here.   I will let you all have a little show, you know.   I ain't nothing, but sitting here any way.   You know, I can't defend myself because I am denied due process of the law regardless.  [¶] So, like I said, it makes no difference.   I ain't going to make no noise.   I ain't going to do nothing but sit here, so like you say, you know, continue with the trial and just let me be, you know.  [¶] I am just going to sit here.   I ain't going to make no outbursts and I ain't going to turn over the table.   I ain't going to curse.   I ain't going to do nothing but sit here.“THE COURT:  All right.  [¶] Well, with that representation that you are not going to disrupt the proceeding of the Court, I am willing to have you unshackled and we will take a chance again, but if there is a further problem, then I have got no alternative but to take you into the adjoining room.  [¶] Do you understand that?“THE DEFENDANT:  I would like—like I said, I would like the record to reflect I would rather stay like I am because I was like this the whole procedure of the whole trial and there is no use in the Court trying to make like I was not, you know.   I am going to appeal and I know I am going to win the appeal because this was illegal day one to do me like this and I would like everything to remain just the same.  [¶] No use cleaning up the act now because I already got treated that way, you know.   Deputies standing behind me and saying I am a danger, risk.   Every time I walk over there to ask the witness questions, they sent one over.   I ain't made a threatening motion toward anybody in this courtroom, yet I got treated like I was a hard criminal or something.  [¶] I ain't nothing.   What's 16, two and three, which is the lowest term you can go to the pen on.   That's the lowest you can go on.   That's all that this Court can give me on this.“THE COURT:  Anything further for the record, Mr. Colbert?“THE DEFENDANT:  Yes.   I would like the record to reflect that that's it.“THE COURT:  It has.“THE DEFENDANT:  Right.“THE COURT:  Let's take a short recess while the deputies unshackle him.(Recess.)“THE COURT:  The record will reflect that Mr. Colbert is back in the courtroom.  [¶] Mr. Colbert, as I indicated before, I am going to accept your representation that you maintain some order of decorum during the proceedings, and the record will reflect that Mr. Colbert is at the counsel table at this point in time.  [¶] Gentlemen, are you both ready to proceed?“MR. WONG:  Yes.   The People are ready, Your Honor.“THE COURT:  All right.   There is no response from Mr. Colbert.  [¶] Bring out the jurors.”

5.   Following are some extracts from the reporter's transcript of what transpired:“THE COURT:  Mr. Colbert, it's your opportunity to cross-examine this witness [Harold Clifford Linden].  Would you like to exercise that right at this time, Mr. Colbert?  [¶] The record will reflect that there has been no response from the defendant and he is in the Court's judgment waiving his right to cross-examine.“․“THE COURT:  All right.   Mr. Colbert, any questions of Mr. [Anthony] Russo [victim].  [¶] All right.   The record will reflect that Mr. Colbert has been made aware of his right of cross-examination and, apparently, he decides to waive that right at this time.“․“THE COURT:  Mr. Colbert, you have the right of cross-examination of this witness [Wayne Ketaily].“THE DEFENDANT:  I would like the record to reflect that the DA ain't doing nothing but making a case against Rickie Harper, which I don't know what is relative to me at all.   The only thing he keeps talking about Rickie Harper had his shoes, Rickie Harper had a cast that they took off near the mud or near the window.  [¶] Big deal.  [¶] I don't know what he is saying concerning me.   That's what I don't understand.   I thought I was on trial.   The only thing he is talking about Rickie Harper that, Rickie Harper this.   Rickie Harper is not here.   I am here, you know, and so I just want the record to reflect that the DA ain't doing nothing but bringing up evidence against Rickie Harper, whoever that may be.  [¶] Let the record reflect that.“THE COURT:  The record will so reflect.   Do you have any questions on cross-examination?  [¶] The record will reflect that Mr. Colbert has waived his right of cross-examination of this witness.Following direct examination of prosecution witness Harvey M. Sagara, a criminalist who testified as an expert that following a comparison of a plaster cast of a footprint found outside the victim's window and shoes of co-defendant Rickie Harper, he matched elongated indentations in co-defendant Rickie Harper's shoes.   After the prosecution attorney had completed direct examination, the following colloquy occurred:“MR. WONG:  I have nothing further of this witness at this time, Your Honor.“THE COURT:  Thank you, Mr. Wong.“THE DEFENDANT:  Yes.   I would like the record to reflect two things.  [¶] For one thing, all I did is just reach to touch that little old defendant and respondent sign, and the Deputy Sheriff Lobo came here, attacked me, you know, because I almost barely touched that, and the other thing—“THE COURT:  Excuse me, Mr. Colbert.“THE DEFENDANT:  I would like the record—“THE COURT:  Mr. Colbert, so that the appellate court will understand what we are referring to, during the course of Mr. Sagara's testimony, you apparently reached across counsel table and touched the sign indicating defendant, and the sheriff reached over and knocked those from your grasp.  [¶] Is that a fair representation, sir?“THE DEFENDANT:  No, it's not.   I was reaching over there to touch that and he jumped and knocked me into the table and then knocked it out of my hand.   That was physical.  [¶] So, that was—that was physical abuse.  [¶] Another thing I would like the record to reflect that this criminal, whoever done testify, he is telling—testifying toward Rickie Harper's shoes.   I don't know what they got to do with me.   I would like the record to reflect that.“THE COURT:  All right.  [¶] Any questions in cross-examination, sir?  [¶] The record will reflect that Mr. Colbert has waived his right of cross-examination of this witness.The direct testimony of the next witness, police officer Kenneth Lane, was that when he [Officer Lane] went to the location of the break-in, he saw defendant Colbert and co-defendant Rickie Harper;  that he impounded a 1973 dark-blue Dodge Dart vehicle with license plate number 510 HNE parked in the vicinity;  and that as he [Officer Lane] and officer Ketaily were escorting defendant to a patrol car that ‘he [defendant Colbert] asked me what we were going to do with his car and I asked him where his car was and he motioned with his head at the dark-blue Dodge and said, “that one.” ’   Following direct examination by the prosecuting attorney the court said:“THE COURT:  All right.   Mr. Colbert, would you like to exercise your right of cross-examination of this witness?  [¶] The record will reflect there is no response from Mr. Colbert.   I have no alternative but to consider his right has been waived.”

6.   The reporter's transcript contains the following colloquy:“THE DEFENDANT:  I got chained.   You gagged me last week.   Woo, woo, woo, woo, woo, woo, woo.   I didn't even got a chance to cross-examine the witnesses because I was gagged, and I can't even make a move in this courtroom without Sheriff Lobo behind me going to try and sit up and attack me, whatever, you know.  [¶] So, how am I being able to make a defense?“THE COURT:  All right.   Ladies and gentlemen, let me instruct you on the law.   It is very clear that you can only consider the evidence that actually comes in through the witness stand, or through exhibits.  [¶] You may not consider the evidence a person representing themself, a propria persona, or the district attorney.   Their statements are not evidence to be considered by you one way or the other.  [¶] At this point in time, the defense will have a right to make an opening statement.   When the People made their opening statement originally, the defendant at that time, in my determination, waived his right of opening statement then.   I have offered him an opportunity once again to make an opening statement as to whether he plans to present a defense and, if so, what he plans to demonstrate.  [¶] We will consider your statements as your statement.“THE DEFENDANT:  No, don't consider that as my statement.“THE COURT:  Would you like to make an opening statement then?“THE DEFENDANT:  Yes, I would like an opening statement.“THE COURT:  As to what you feel your evidence will show.“THE DEFENDANT:  Yes, I would like to make that.“THE COURT:  You are prepared to go forward with the defense, Mr. Colbert, either testimony or—“․”Following another tirade by the defendant accusing the court of denying him witnesses, the following colloquy occurred:“THE COURT:  Do you want to testify on your own behalf, Mr.—“THE DEFENDANT:  I would like to present witnesses on my own behalf.   That's what I would like to do.“THE COURT:  You indicated you have a witness in the county jail, Mr. J.C. James.“THE DEFENDANT:  I would like to bring this Rickie Harper since all the evidence pertaining to him—will you tell the jury why I can't bring Rickie Harper into the court?“THE COURT:  Do you want to bring Mr. James in tomorrow?“THE DEFENDANT:  Yes, I would like to bring Rickie Harper into court, too, since all the evidence pertaining to him—I would like to have Rickie Harper get on the stand and let him tell exactly what happened.  [¶] Why I ain't allowed to bring him in?   I would like the jury to know this, you know, because, hey, talking about I got a right to make any defense, how?   [¶] Hey, man, I am in jail.   I can't get out there and get nobody because, hey, I am locked up and contained in L.A. County jail and, so, the Court is supposed to subpoena, use their power to bring him into court and the Court denied.   You said, ‘I ain't going to let you rendezvous with your buddies.’   Ain't this something?“THE COURT:  Are you refusing to present a defense at this time?“THE DEFENDANT:  What do you mean refusing?   I would like to present a defense.   Are you going to bring my witness so I can present a defense?“THE COURT:  Well, I have indicated to you, Mr. Colbert, that they will bring inmates from state prison only on affidavit.“․“THE COURT:  Anything further, Mr. Colbert?“THE DEFENDANT:  Yeah.   Will I be allowed to bring Rickie Harper to court?   That's all I would like to know.“THE COURT:  I have indicated that you have had an attorney who you fired.   You have had a legal advisor.“THE DEFENDANT:  There ain't no attorney.   Did the jury ever see a legal attorney here since I be in court?   Did they ever see a legal advisor since the jury be in this jury?  [¶] I ain't seen nothing.   They seen me here and I demonstrate my behavior on the grounds to get listened to because everybody ignores me like I ain't even here, you know, like, woo, woo, woo, woo, you all getting together, you talking to that all Georgia talk, yeah, woo, woo, woo, woo, woo, woo, woo, all that little old thing don't do nothing but impress y'all.   I would like to present a defense, but you denied me a right to present a defense, you know.  [¶] So, are you going to get me Rickie Harper?“THE COURT:  Anything further, Mr. Colbert?“THE DEFENDANT:  Yeah.   Would I get an answer to the question?“THE COURT:  You can bring witnesses if they are obtained through process, Mr. Colbert, and you are aware of that.“THE DEFENDANT:  Then why won't I ask you, can I bring him?   You told me, ‘No, I ain't bringing him in here and letting you all rendezvous.’“THE COURT:  You have never been told that, Mr. Colbert.“THE DEFENDANT:  Man, you sitting up there lying.   Man, you sitting up there lying.   You ain't never told me—you ain't allowed me to bring him in because you ain't going to let us rendezvous?“THE COURT:  You have to prepare an affidavit.“THE DEFENDANT:  Woo, woo, woo, woo.   Who is a coward now?   Man, you scared to admit it in front of the jury?   You're scared to let this record reflect—you kick back, man.  [¶] It ain't no thing what you give me, ain't nothing.   You can't give me enough time, man.   You coward, man.   You are scared to let the jury know what you are saying.   You are scared to let the record reflect.  [¶] You are probably up there walking that yard, you know.   You are going to abuse all my rights, deny me due process.   You are going to run through all my constitutional rights, my First, Fourth, Fifth, deny me everything, and then you sit up there and make like you with me.   Ain't this something?“THE COURT:  Anything further?“THE DEFENDANT:  Just a fool.“THE COURT:  All right.   Mr. Colbert has waived his right to present a defense at this time.“THE DEFENDANT:  I ain't waived no right to present a defense.   I told you all I want to present a defense.   You bring my witness in here, or you give me a copy of that file where I can look and see all the evidence pertaining against me.  [¶] The one thing I am allowed to have—am I allowed to present the evidence pertaining against me?   Do I supposed to possess that evidence?“THE COURT:  Anything further?“THE DEFENDANT:  Am I allowed to have the evidence presented against me to present a defense?   I don't know what is said against me.   Am I allowed to have the evidence pertaining against me?“THE COURT:  All right.   The record will reflect that the defendant has decided not to present a defense at this time.“THE DEFENDANT:  Maybe you're a mother-fucking liar, man.   Ain't not decided to do a damn thing, man.“THE COURT:  Ladies and gentlemen, we will be in recess at this time.  [¶] 10:00 o'clock tomorrow, ladies and gentlemen.   10:00 o'clock tomorrow.   You have my usual admonition not to discuss this among yourselves or with any other person.”(Jury excused.)

7.   Penal Code section 1043, as amended in 1977, in pertinent part provides:“(a) Except as otherwise provided in this section, the defendant in a felony case shall be personally present at the trial.“(b) The absence of the defendant in a felony case after the trial has commenced in his presence shall not prevent continuing the trial to, and including, the return of the verdict in any of the following cases:“(1) Any case in which the defendant, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that the trial cannot be carried on with him in the courtroom.“․“(c) Any defendant who is absent from a trial pursuant to paragraph (1) of subdivision (b) may reclaim his right to be present at the trial as soon as he is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.”

8.   The record on appeal further shows that while the defendant was representing himself during the pretrial hearing stage and indicated that he desired to have some witnesses brought in from the state prison, that the following colloquy took place in court during that hearing:“THE COURT:  Well, Mr. Colbert, in what prison are these defendants located?“THE DEFENDANT:  San Quentin, Susanville.   I think one of them is in Folsom right now.   My co-defendant.“THE COURT:  You can prepare your declaration and show me good cause as to how they relate to your case.“THE DEFENDANT:  What about co-defendants?   They was with me when the crime took place.”  (Emphasis added.)In addition, in the case at bench, pursuant to rule 12a of the California Rules of Court, the record on appeal was augmented by ordering up the original superior court file (Case No. A527912).   The original superior court file reflects that defendant Colbert's co-defendant Ricky Donall Harper, who was arrested with defendant Colbert at the scene on May 3, 1982, entered a nolo contendere plea to the same charge of which defendant Colbert was found guilty, and that based on the preliminary hearing transcripts, co-defendant Harper was found guilty and was sentenced to state prison for the median term of two years to run concurrently with a median term on another burglary charge (Case No. A 528461).

LILLIE, Acting Presiding Justice.

DISCO, J.*, concurs.