People v. Smith CA2/3

Filed 9/16/22 P. v. Smith CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B309606

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA152190)
v.

MICHAEL SMITH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Henry J. Hall, Judge. Affirmed.
Daniel Milchiker, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Marc A. Kohm and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.
——————————
 A jury convicted Michael Smith of two counts of assault
with a deadly weapon in violation of Penal Code1 section 245,
subdivision (a)(1). The trial court imposed a sentence of 20 years
in state prison. On appeal, Smith contends the court erred in
denying his motion to represent himself at the preliminary
hearing and trial; in presenting him to the jury shackled, in jail
garb, and on a gurney; and in excluding him from the courtroom
at various points during his trial. We reject each of those
contentions, and therefore affirm.
BACKGROUND
Following a June 2020 altercation at the board and care
facility where Smith resided, the People charged him with two
counts of assault with a deadly weapon. The People further
alleged Smith had suffered three prior strikes. (§§ 667,
subds. (a)(1), (d), 1170.12.) The evidence at trial established that
Smith threatened to kill the owner of the board and care facility
while holding a knife. He then used the knife to slash the chest
of another elderly resident who intervened. On appeal, Smith
raises no issues requiring a detailed exposition of the facts of the
case. We therefore turn to the relevant procedural history.
Smith was arrested on June 9, 2020. On June 10, he
appeared for arraignment, represented by appointed counsel. As
discussed in more detail below, before and during the early stages
of trial, the sheriff’s department required that Smith sit on a
gurney while being transported and while attending court
proceedings, due to his weight. Smith was estimated to weigh
between 400 and 600 pounds.

1All further undesignated statutory references are to the
Penal Code.

2
 On July 16, the matter was called for a preliminary hearing
and a different attorney appeared on Smith’s behalf. Smith was
not present because he had refused to be transported to court.
The court signed an extraction order and continued the case to
the next day.
On July 17, the parties appeared for the preliminary
hearing. Smith was present on a gurney, represented by the
attorney who had appeared on his behalf the day before. The
proceeding began with a discussion of the statutory deadlines for
the preliminary hearing. Before the court could utter a complete
sentence, Smith interjected to assert his speedy trial rights. As
the preliminary hearing discussion continued, Smith again cut
the court off, stating; “Motion to dismiss . . . for discrimination
under the color of authority under the law.”
The court repeatedly requested that Smith “hold on,” but
he ignored the court and continued:
“The Court: Okay. Well—
“The Defendant: I was not arraigned, and then the court
decided that it didn’t want to hear me without a lawyer, and I
asked for subligation [sic]—the reason for subligation. I’m not a
slave to no man. I didn’t hire no lawyer. They wouldn’t even—
they buried me in prison. They wouldn’t even allow me to have a
pencil and paper, my telephone, or a telephone call. They
wouldn’t let me have it for three days. They didn’t even give me
toilet paper for five days, and they didn’t give me soap until six
days later. I was not in the position—they took the evidence I
had and cut it up and stole it in front of me, Your Honor.
“The Court: Well, Mr. Smith, hold on. We are going to get
the—

3
 “The Defendant: I was doing an investigation, and they
come in and arrest me because the thieves and the murders that
I was investigating lied on me.”
The court responded that they would “get to the bottom of
it,” and returned to the arraignment date and speedy trial
calculation, only to have Smith break in:
“The Defendant: It was no legal arraignment, Your Honor.
The court told me under—that I had no voice.
“The Court: Mr. Smith—
“The Defendant: And then when I tried to call the
defender’s office, the phone would not work. It says not
authorized.”
The court warned Smith that if he did not stop disrupting
the proceedings he would be removed from the courtroom. The
court further told Smith he would have “more than an ample
opportunity to get whatever it is you have to get off your chest off
your chest,” but the proceedings needed to happen in an orderly
way. Smith said he understood. Yet, as soon as the court began
speaking again, Smith interrupted, demanding a jury trial. The
court informed him that they had not yet arrived at that topic.
The court and counsel set a further date for the preliminary
hearing, then the court explained Smith’s jury trial rights and
what would transpire at the preliminary hearing. When defense
counsel indicated he would not pursue a motion to suppress at
the preliminary hearing, Smith interjected:
“The Defendant: I want to limit on me all of the evidence
that was collected after June the 8th, because on June the 8th,
the—it’s insufficient evidence that I did anything.
“[Defense counsel]: Okay.

4
 “The Court: Okay. We’re going to—that’s what we are
going to find out.
“The Defendant: And I got plenty of evidence that they
collected that they had been murdering people; they had been
stealing from people; and they had been putting people in jail for
no reason at all.
“The Court: Well, we are going to find that out. And,
believe me, Mr. Smith, if it looks to me like they put you in jail
for no reason at all, you are going home. Okay? But we have to
do this in a legal orderly way. And in order to do that, I’ve got to
hear what the People present at this preliminary hearing. That’s
what the hearing is to determine, whether there’s enough
evidence for the case to go forward. So let’s do this in an
organized legal way.”
The court again attempted to finalize the preliminary
hearing arrangements. Smith interrupted the court and counsel,
stating, “Objection,” “I need to know,” and “I have the flight risk
of 1, and then they pushed it up to 15 for no reason at all.” As the
court provided a start time for the preliminary hearing and began
to inquire about having Smith transported to court, Smith
interrupted again:
“The Defendant: This is white supremacy racism.
“The Court: Mr. Smith, believe me, we will not allow that
to happen. Okay?
“The Defendant: Well, this is what’s happening, white
supremacy racism.
“The Court: Let me see what’s going on—
“The Defendant: Discrimination under the color of the law.

5
 “The Court: Okay. We are done for now. We will see
everybody back here, then, Tuesday morning and get started as
soon as possible.”
At the beginning of the next hearing on July 21, Smith
immediately asserted that appointed counsel was not his
attorney, he had not accepted the lawyer, and he had not spoken
with him. When the court explained that it had appointed the
public defender’s office to represent him, Smith declared, “Pro
per. You cannot by law give me a lawyer that I don’t want.”
When the court began to explain that it could, in fact, assign the
public defender’s office to represent him, Smith interrupted, “I
don’t believe you. Show me where—”
The court warned Smith that, although it had tolerated his
disruptions at the prior appearance, it would only allow him to
stay as long as he could maintain proper decorum in court.
Smith responded, “If he’s my lawyer—I fire you.” The court
stated it seemed necessary to clear the courtroom to conduct a
Marsden hearing.2 Defense counsel asked for a moment to speak
with Smith, but as counsel and the court tried to discuss the
logistics of providing Smith and his attorney a private area to
communicate, Smith apparently continued to speak, leading the
court to admonish him, “Mr. Smith, I’m trying to talk to your
lawyer. Would you please be quiet?” Smith responded that
counsel was not his lawyer because he had just fired him.
Eventually the judge left the bench so that Smith and counsel
could confer.
When the proceedings resumed, defense counsel informed
the court that Smith wished to represent himself. The court

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

6
denied the request, reasoning that Smith had been “way too
disruptive” and that the court was “close to having a 1368
doubt.”3 Smith objected, to which the court responded, “You can
object all you want to, Mr. Smith, but this kind of disruptive
behavior is unacceptable and it would disqualify you in my
opinion from representing yourself. We’ll see how things go.”
Smith answered, “You are prejudiced and you would like to see
the defendant go to prison for the rest of his life. Therefore, I
accuse you of prejudice towards the defendant.” The court
reminded Smith that it would remove him from the courtroom if
he could not maintain “some level of decorum.”
The preliminary hearing was completed the same day.
After Smith was held to answer on the two charges, he tried to
get off the gurney and continued to address the court regarding
legal matters despite instructions to let his attorney speak for
him. He reasserted his desire to go pro per, so that he could “go
home and take care of—of this case because there’s a lot of things
that I know about the case that the attorney cannot know.” The
court indicated it would not discuss Smith’s case without his
attorney being present.
Smith was arraigned on August 4, 2020. He again refused
to be transported to court for a pretrial appearance on September
3. The court ordered that he be extracted for the next
appearance. As soon as the proceedings began on September 10,
Smith interrupted to assert that the statute of limitations had
run on his case. When instructed to let his attorney speak for
him, he insisted he had fired defense counsel. After repeatedly

3Section 1368 sets forth the procedure for further inquiry
when a doubt arises as to a criminal defendant’s mental
competence.

7
asking Smith to “stop for a minute,” and “stop,” the court cleared
the courtroom to conduct a Marsden hearing.
At the outset of the hearing, the court warned Smith that
he would be excluded if he could not remain quiet when told to do
so. Smith explained that his attorney had never visited him to
discuss the case. Defense counsel corroborated that pandemic
safety concerns had rendered him unable to visit Smith in
person. Counsel further admitted that his office had no measures
in place to visit clients who could not medically attend
videoconferences. Defense counsel indicated he had planned to
meet with Smith that day, suggesting the meeting could occur in
the courtroom if the court was willing to clear it for that purpose.
Smith continued to interrupt. He asserted he had read the law,
he discussed one of his prior criminal cases, and he repeatedly
asserted that “martial law” was in effect. The court began to
speak, stating it would allow time for Smith and counsel to meet
and discuss the case in the courtroom. Before the court could
finish, Smith again interrupted, reasserting that the statute of
limitations had passed and that he had filed a motion to recuse
the court. The court responded:
“The Court: I’ll consider it when I get it. I haven’t seen it.
“The Defendant: Here it is right here.
“The Court: Well, it hasn’t been filed. . . .
“The Defendant: It has.
“The Court: Mr. Smith—
“The Defendant: It says—
“The Court: Mr. Smith—
“The Defendant: I—

8
 “The Court: Mr. Smith, I’ve been trying to treat you like an
adult with some respect. If you don’t stop talking over me we are
done. Are we clear?”
Smith denied that he was talking over the court. As the
court began to make its ruling, Smith interjected, insisting he
had fired defense counsel and the court did not have the power to
force him to have an attorney. The court explained:
“The Court: Mr. Smith, the only thing that would relieve
you of that is if I allowed you to go pro per. And you’re the most
disruptive defendant—
“The Defendant: I am pro per. My name is Michael Smith.
My mother and father give me this name, Michael Smith. The
doctor of—agreed with my mother and father that I should be
Michael Smith. The state has always notified me as Michael
Smith. Now, how do I come in and you going to tell me that I’m
not Michael Smith? This is my proper name.
“The Court: Mr. Smith—
“The Defendant: Michael Smith. And pro per proper
means the same thing.”
The court stated it was close to declaring a doubt about
Smith’s competency. Defense counsel disagreed, indicating he
believed Smith understood the nature of the proceedings, but
merely had his own ideas about the representation. The court
denied the Marsden and self-representation requests, citing
Smith’s disruptiveness. Smith continued to interrupt the
proceedings to object and assert his speedy trial rights.
On September 16, the day before jury selection, the parties
appeared in court to discuss pretrial motions. The court noted
that Smith remained confined to a gurney and that he had tried
to sit up several times during prior proceedings. The court

9
explained that this was “very dangerous to [Smith] and very
dangerous to people in the courtroom.” The court instructed
Smith that if he either attempted to sit up or flinch in a manner
the court deemed threatening or dangerous, it would order him
strapped to the gurney so that he could not move. The court
further explained that this was for Smith’s safety, and for the
safety of the people in the courtroom.
The court then asked if defense counsel had civilian
clothing for Smith. Counsel said he would try to obtain some by
the next day. The court suggested that a blanket could be used to
cover Smith’s lower extremities if clothing could not be located.
Finally, the court advised that social distancing protocols in place
due to the COVID-19 pandemic affected the physical location of
the participants, and all parties, including Smith, should be on
their best behavior to ensure a smooth trial process.
Voir dire began on September 17. Smith again appeared on
a gurney. Before the first group of prospective jurors was
brought into the courtroom, defense counsel informed the court
that he had been unable to secure civilian clothing that fit Smith.
The court noted Smith was expressly demanding a speedy trial,
and obtaining civilian clothing was a defense responsibility.
Thus, while the court found the situation unfortunate, trial would
proceed. Defense counsel further reported that Smith told him
his civilian clothing “on the outside” had been destroyed.
During each round of voir dire, the court instructed
prospective jurors—in one case twice—to disregard that Smith
was in a gurney, that it was not evidence in the case, and that it
was a non-fact for the jury. Additionally, each group of jurors
was questioned in some manner about their ability to disregard
the gurney and to decide the case based on the evidence only. At

10
the end of the first day’s proceedings, in the presence of the first
group of prospective jurors, Smith commented that the
proceedings were illegal and criticized the judge.4
On September 18, Smith appeared before a new panel of
prospective jurors. Before the jurors entered the courtroom, the
court warned Smith that any disruption would result in his
removal for the duration of the trial. The court further cautioned
Smith that disruptive behavior would not help him, noting that
at one point in the proceedings, his conduct had required the
presence of eight deputies in the courtroom. After the
prospective jurors entered the courtroom, Smith said the gurney
was positioned in a manner that prevented him from seeing
them. He demanded that he be turned around, then claimed he
was being assaulted. Although defense counsel told Smith he
could be turned to face the jurors, he nonetheless became more
agitated, complaining, with profanity, that the proceeding was
illegal. The court ordered that Smith be removed from the
courtroom. The court then instructed the jury to disregard
Smith’s removal and reminded them to judge the case based upon
the evidence alone.
As jury selection continued on September 21, defense
counsel objected to Smith being strapped to the gurney. Smith
was restrained by four straps that were placed over his knees,

4 Smith’s comments were made aloud while the court and
counsel had a brief, unreported conference at side bar on a
scheduling issue. Smith stated, “This is an illegal procedure.
Under martial law still in effect? I mean, this is a [sic] illegal
procedure. Civil law has been suspended. Martial law takes
effect. And the judge is the one doing that. Henry the other?
Who is he?”

11
thighs, chest, and one across his chest, similar to a seat belt.
Defense counsel argued there had been no showing of necessity
and the straps were very uncomfortable. The court responded
that the straps were necessary to protect Smith from rolling
himself off the gurney, as had occurred several times, both in the
back hallway, and in the courtroom. Smith had also taken off the
“seatbelt” and nearly hit a couple of jurors with it in the process.
Defense counsel suggested putting a blanket over Smith, to
which the court assented. While the parties were waiting for the
blanket, Smith asked to sit in the wheelchair that had been
present throughout the proceedings. The court stated it was
concerned because there was a medical directive indicating Smith
needed to be on a gurney. However, the court also stated that it
would contact the head doctor at the county jail to determine if
Smith could attend trial in the wheelchair.
Smith informed the court that the gurney was very
uncomfortable because it forced his feet to dangle and the straps
were painful. The court asked defense counsel for suggestions as
to how to proceed, noting the court had a medical order requiring
a gurney. Defense counsel asked the court to order a larger
gurney. The court responded that a larger gurney was used the
week before and “everybody” wanted a smaller gurney so that
there would be fewer paramedics in the courtroom. Defense
counsel stated he had not been involved in that conversation, but
pointed out the inadequate size of the gurney, leading the court
to again indicate it would contact the medical authorities later
that day to resolve the issue. The court stated that if Smith
needed a larger gurney, it would be ordered.
Smith added that he had almost been dropped on his head
during one attempt to lift the small gurney, and only the straps

12
prevented him from being injured. The court responded that
there were orders from the jail medical authorities that Smith be
in a gurney, and the court would not contravene those orders.
The court explained it had specifically communicated with
medical authorities the week before regarding the medical
directive, and was informed the gurney was necessary for Smith’s
safety and the safety of the courtroom. However, the court
repeated that it would contact the jail medical authorities later
that day to try to resolve the issues.
On September 22, the last day of jury selection, Smith
refused to leave his cell for court. Ten deputies were required to
extract him from his cell, delaying the proceedings. Once Smith
arrived, the court indicated it had been informed that the gurney
was only necessary for transportation, and Smith was permitted
to attend trial in a wheelchair. Although the sheriff’s department
requested that Smith remain in a gurney due to his behavior that
morning, the court stated it would permit him to remain in a
wheelchair, provided that his obstructive behavior did not
continue. Defense counsel noted “for the record,” that Smith’s left
hand remained cuffed to the wheelchair. The court indicated,
interrupted by Smith’s objections, that it would allow the
handcuff due to Smith’s history of violence, his size, and his prior
threats to roll off the gurney.
Shortly thereafter, Smith interrupted the proceedings, in
the prospective jurors’ presence, claiming he had fired his
attorney and demanding that the entire panel of jurors be
excused. The court admonished Smith, but he continued,
asserting that “a Ku Klux Klan member who hates blacks” was in
the jury pool. The court ordered Smith removed from the
courtroom. The court instructed the prospective jurors that the

13
outburst was not evidence, and that the evidence to try the case
would come from the witness stand and the physical evidence in
court. Smith was absent for opening statements and much of the
complainant’s testimony. However, the court directed the bailiff
to place Smith in a room where the audio of the proceedings was
transmitted by speaker.
On September 23, the court again warned Smith about his
behavior and the possibility he could again be removed from the
courtroom. On September 24, the third day of trial testimony,
the court ordered Smith removed after he accused the court of
being racist and prejudiced against him, insisted he had recused
the judge, asserted the court had no authority to preside over the
trial, and ignored the court’s requests that he stop talking.
Smith was then absent for the discussion of jury instructions.
During that discussion, the court noted there was no indication
the jury saw that Smith was handcuffed. Still, the court granted
the defense request to include CALCRIM No. 204 in the jury
instructions.5
On September 25, Smith said he wished to testify, but he
refused to take the witness oath. In the jury’s presence, Smith
demanded a trial by judge rather than jury, and claimed the
charges were illegal because the statute of limitations had
expired, and the charges were dismissed. The court excused the
jurors and began to explain the statute of limitations to Smith.

5 This instruction provided: “The fact that physical
restraints have been placed on the defendant is not evidence. Do
not speculate about the reason. You must completely disregard
this circumstance in deciding the issues in this case. Do not
consider it for any purpose or discuss it during your
deliberations.”

14
Smith interrupted, arguing about the statute of limitations, the
denial of his right to self-representation, his right to a bench
trial, and his attorney’s handling of the case. The court again
warned Smith that it would exclude him if he continued to have
outbursts.6 As soon as the proceedings resumed, and in the
presence of the jury, Smith insisted he was his only defense, he
had fired his attorney, and if he were removed the court would be
removing the defense. The court ordered Smith removed from
the courtroom. He was not present for either the court’s
instruction of the jury or closing arguments.
On September 28, the jury found Smith guilty of both
counts of assault with a deadly weapon. In a bifurcated
proceeding, the jury found true that Smith had suffered three
prior convictions. The court sentenced Smith to an aggregate
term of 20 years in state prison. Smith timely appealed.

6 Before calling the jurors back in, the court stated, “This
trial has now been going on for a little over a week. It’s been my
observation when Mr. Smith chooses he can behave appropriately
in court. He behaved appropriately yesterday in front of the jury.
He behaved appropriately Tuesday in front of the jury. When he
chooses not to he engages in the kind of behavior that we’ve seen
this morning. I don’t know whether it is something intentional to
try to force a mistrial or what it is.” At that point, Smith
interjected and launched into a series of profanity-laden
allegations about being raped in jail. The court continued, “In
any event, Mr. Smith has demonstrated an ability to behave
appropriately. I think as [defense counsel] pointed out yesterday
this is something that he chooses to do, not something that
indicates an incompetence or inability to participate in the court
proceedings. I think this is a choice on his part and that’s what
I’m finding for the record.”

15
 DISCUSSION
I. Smith’s self-representation requests
Smith asserts the trial court erred in denying his requests
to represent himself before and after the preliminary hearing.
We find no error.
The Sixth Amendment guarantees a criminal defendant the
right to be represented by counsel at all critical stages of a
criminal prosecution, but also the right to “proceed without
counsel when” he “voluntarily and intelligently elects to do so.”
(Faretta v. California (1975) 422 U.S. 806, 807 (Faretta); United
States v. Wade (1967) 388 U.S. 218, 223–227; Gideon v.
Wainwright (1963) 372 U.S. 335, 339–345.) These rights apply at
the preliminary hearing stage. (Curry v. Superior Court (1977)
75 Cal.App.3d 221, 229.)
However, “a Faretta motion may be denied if the
defendant . . . is disruptive in the courtroom or engages in
misconduct outside the courtroom that ‘seriously threatens the
core integrity of the trial’ [citations], or the motion is made for
purpose of delay.” (People v. Lynch (2010) 50 Cal.4th 693, 721–
722.) “This rule is obviously critical to the viable functioning of
the courtroom. A constantly disruptive defendant who represents
himself, and who therefore cannot be removed from the trial
proceedings as a sanction against disruption, would have the
capacity to bring his trial to a standstill.” (People v. Welch (1999)
20 Cal.4th 701, 734 (Welch).)
When determining whether to deny or terminate self-
representation based on a defendant’s misconduct, the “trial
court must . . . decid[e] whether a defendant is and will remain so
disruptive, obstreperous, disobedient, disrespectful or
obstructionist in his or her actions or words as to preclude the

16
exercise of the right to self-representation.” (Welch, supra,
20 Cal.4th at p. 735; McKaskle v. Wiggins (1984) 465 U.S. 168,
173 [defendant must be “able and willing to abide by rules of
procedure and courtroom protocol”]; Faretta, supra, 422 U.S. at
p. 834, fn. 46 [misbehavior must constitute “abuse [of] the dignity
of the courtroom”].) In making this determination, the court
should consider “the nature of the misconduct and its impact on
the trial proceedings,” “the availability and suitability of
alternative sanctions,” “whether the defendant has been warned
that particular misconduct will result in termination of in propria
persona status,” and whether the defendant “has ‘intentionally
sought to disrupt and delay his trial.’ ” (People v. Carson (2005)
35 Cal.4th 1, 9–10.)
On appeal, a reviewing court must “accord due deference to
the trial court’s assessment of the defendant’s motives and
sincerity as well as the nature and context of his misconduct and
its impact on the integrity of the trial . . . [and the] fairness of the
proceedings.” (People v. Carson, supra, 35 Cal.4th at p. 12;
accord Welch, supra, 20 Cal.4th at p. 735.) We review the trial
court order for abuse of discretion, and will not disturb the
exercise of that discretion absent “ ‘ “a strong showing of clear
abuse.” ’ ” (People v. Williams (2013) 58 Cal.4th 197, 253
(Williams).)
There is no such strong showing of clear abuse in this case.
Before the court denied Smith’s first request for self-
representation, Smith repeatedly engaged in disruptive behavior.
He refused to be transported to court on July 16. At the July 17
proceeding, he interrupted the court, starting as soon as the court
began speaking, and continuing throughout the proceeding.
Although the court several times told Smith that his concerns

17
would be addressed, Smith persisted in interrupting to assert the
same objections and concerns. On July 21, Smith continued his
pattern of interjecting and talking over the court, even as the
court attempted to make arrangements for him to speak with his
attorney. He rejected the court’s authority and interrupted when
the court attempted to explain the court’s process or the law.
Smith clearly demonstrated his unwillingness to follow rules of
procedure or courtroom protocol, and his abuse of the dignity of
the courtroom.
The court’s analysis in Welch is instructive. In Welch, the
record showed defendant “belligerently denied awareness of a
calendar date that was set in his presence; he turned his back on
the trial court when addressing it; he interrupted the trial court
several times to argue what the court had declared to be a
nonmeritorious point; he accused the court of misleading him; he
refused to allow the court to speak and he refused several times
to follow the court’s admonishment of silence.” (Welch, supra,
20 Cal.4th at p. 735.) Our high court concluded the trial court
did not abuse its discretion in denying the defendant’s Faretta
motion. The court explained that “while no single one of the
above incidents may have been sufficient by itself to warrant a
denial of the right of self-representation, taken together they
amount to a reasonable basis for the trial court’s conclusion that
defendant could not or would not conform his conduct to the rules
of procedure and courtroom protocol.” (Welch, at p. 735.)
Similarly, in this case, Smith’s pattern of conduct
established his obstruction and refusal to conform to courtroom
protocols. (Welch, supra, 20 Cal.4th at p. 735.) Like the
defendant in Welch, Smith repeatedly refused to follow the court’s
admonishments to be silent, did not let the court speak, and

18
rejected the court’s authority. We reject Smith’s suggestion that
the court should have granted his Faretta motion with a warning
that disruptive conduct would result in revocation of his pro per
status. Trial courts faced with requests for self-representation
are required to anticipate, as the court did here, a defendant’s
conduct at trial based upon any disruptiveness in the existing
proceedings. (Welch, at p. 773.) Smith had already displayed
extremely disruptive conduct, and we find no abuse of discretion
in the court’s denial of the Faretta motion on that basis.
(Williams, supra, 58 Cal.4th at p. 253).
To the extent that Smith challenges the court’s subsequent
denials of self-representation, his contentions lack merit. As
Smith himself recognizes, he “unquestionably became more”
disruptive as the proceedings continued. Each of his subsequent
requests occurred after he had at least one serious outburst in
front of the jury, during which he complained about being
assaulted in the courtroom and, using profanity, declared the
proceedings illegal. In other words, by the time the court denied
each of these renewed requests for self-representation, Smith’s
ensuing conduct had only amplified that he would not adhere to
courtroom protocol and that his conduct abused the dignity of the
courtroom.
In sum, given Smith’s disruptive, disrespectful conduct,
and his failure to heed the court’s many warnings, it was
apparent from the very early stages of the case that he was
obstructive and unwilling to abide by the rules of courtroom
procedure and protocol. (Welch, supra, 20 Cal.4th at p. 735.) The
court acted well within its discretion in concluding Smith’s
disruptive behavior would bring the trial “to a standstill” if he
were representing himself. (Welch, at p. 734.) Smith has failed

19
to make out the “ ‘ “strong showing of clear abuse” ’ ” required to
warrant reversal. (Williams, supra, 58 Cal.4th at p. 253.)
II. Smith’s appearance at trial
Next, Smith contends that his presentation to the jury
strapped on a gurney, handcuffed to a wheelchair, and in jail
garb, constituted an abuse of discretion and otherwise violated
his rights to due process, to a fair trial, and to participate in his
defense. We again disagree.
“The unjustified imposition of visible physical restraints
violates a criminal defendant’s right to due process under the
Fifth and Fourteenth Amendments to the federal Constitution.”
(People v. Hernandez (2011) 51 Cal.4th 733, 745, italics omitted.)
Restraints “like handcuffs . . . may erode the presumption of
innocence because they suggest to the jury that the defendant is
a dangerous person who must be separated from the rest of the
community. [Citations.] The same problem arises if the
defendant is required to appear before the jury dressed in prison
clothing.” (People v. Stevens (2009) 47 Cal.4th 625, 632–633
(Stevens); see Estelle v. Williams (1976) 425 U.S. 501, 518
(Estelle) [danger of denial of fair trial when defendant appears in
prison garb].)
Nonetheless, “the ‘court has broad power to maintain
courtroom security and orderly proceedings.’ (People v. Hayes
(1999) 21 Cal.4th 1211, 1269.) On appeal, its decisions on these
matters are reviewed for abuse of discretion. ([Stevens, supra,
47 Cal.4th at p. 633].) Under California law, ‘a defendant cannot
be subjected to physical restraints of any kind in the courtroom
while in the jury’s presence unless there is a showing of a
manifest need for such restraints.’ (People v. Duran (1976)
16 Cal.3d 282, 290–291.) Similarly, the federal ‘Constitution

20
forbids the use of visible shackles . . . unless that use is “justified
by an essential state interest”—such as the interest in courtroom
security—specific to the defendant on trial.’ (Deck v. Missouri
(2005) 544 U.S. 622, 624, italics omitted.) . . . ‘In deciding
whether restraints are justified, the trial court may “take into
account the factors that courts have traditionally relied on in
gauging potential security problems and the risk of escape at
trial.” (Deck v. Missouri, supra, 544 U.S. at p. 629.) These
factors include evidence establishing that a defendant poses a
safety risk, a flight risk, or is likely to disrupt the proceedings or
otherwise engage in nonconforming behavior.’ (People v.
Gamache (2010) 48 Cal.4th 347, 367.)” (People v. Virgil (2011)
51 Cal.4th 1210, 1270–1271; accord People v. Bracamontes (2022)
12 Cal.5th 977, 991 (Bracamontes) [individualized assessment
necessary because restraints are “extraordinary measures”].)
We find no abuse of discretion or constitutional error in the
court’s ruling requiring Smith to appear on a gurney with
restraints during voir dire, and then with handcuffs on one hand
for the remainder of trial. A medical directive justified the use of
the gurney for several court appearances.7 Indeed, not until
defense counsel raised an objection on the third day of voir dire
was the medical necessity of the gurney even questioned. Based
on the facts before the court at the time, there was a “manifest

7 In his reply brief, Smith questions for the first time the
existence of the medical directive. This argument misconstrues
the applicable burdens on appeal. Because it is the defendant’s
sole burden to provide a record showing error below, we presume
the existence of the medical orders in the absence of contrary
evidence. (People v. Moore (2021) 68 Cal.App.5th 856, 866.)

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need” for the gurney. (People v. Duran, supra, 16 Cal.3d at
pp. 290–291.)
A similar manifest need was apparent with respect to the
gurney’s straps, and, later, the handcuffs. Because of COVID-19
pandemic-related social distancing measures, Smith was
necessarily placed close to several jurors, who were spaced
throughout the courtroom instead of seated in the jury box. He
was so close that he nearly hit several of them when he
attempted to remove the “seatbelt” strap. He also had repeatedly
tried to roll off the gurney, endangering himself and others in the
courtroom. As Smith himself recognized at one point, the
gurney’s straps were necessary to prevent his being seriously
injured from a fall. The record unequivocally demonstrates
Smith’s extreme safety risk based on his size, his history of
threatening and assaultive conduct, his disruptive behavior
throughout the proceedings, and his inability or unwillingness to
follow the court’s instructions. (Bracamontes, supra, 12 Cal.5th
at p. 992 [courts must assess totality of circumstances].)
Smith asserts that the trial court erred by failing to
independently determine whether there was a manifest need for
the restraints it imposed. (People v. Lomax (2010) 49 Cal.4th
530, 559, 561 [court must exercise independent judgment, and
may not rely solely on judgment of law enforcement or security
personnel]; People v. Mar (2002) 28 Cal.4th 1201, 1218.) We
disagree. Here, the court, on its own initiative, contacted jail
medical authorities in advance of the trial to ensure that the
gurney was necessary, and then did so again after the defense
objected to the gurney. When the jail medical authorities
ultimately reversed their position, the court immediately
permitted Smith to utilize his wheelchair. The court properly

22
exercised its independent judgment under the facts of this
particular case. It further imposed the least restrictive method of
restraint at each stage of the proceedings. (People v. Montes
(2014) 58 Cal.4th 809, 841.)
The record belies Smith’s claim that the restraints were
only imposed because he attempted to sit up, flinch or reposition
himself. Instead, it reflects several instances in which Smith
attempted to get off the gurney in an unsafe manner, and
otherwise failed to comply with the court’s instructions. Given
this history, the trial court reasonably concluded there was a
manifest need for the restraints and an essential state interest in
protecting all of those present in the courthouse, including Smith
himself, at each stage of the proceedings that restraints were
imposed. (Bracamontes, supra, 12 Cal.5th at p. 992 [history of
nonconforming courtroom behavior or threat of violence can
justify restraint].)
We likewise find no merit in Smith’s argument that the
trial court erred in compelling him to wear jail clothing. The
court did not compel Smith to wear jail garb. Instead, the court
initiated the jail clothes discussion, leaving it up to defense
counsel to locate clothing for Smith. After counsel discovered
Smith’s civilian clothing had been destroyed and he was unable
to secure clothing that fit his client, the court deemed the
situation unfortunate, but stated that finding clothing was a
defense responsibility. There was no further discussion of the
matter, other than when the defense took the court up on its offer
to put a blanket over Smith the next day. Rather than
compelling Smith wear jail clothing, the court went beyond its
obligations to minimize any prejudice to Smith. (People v.

23
Williams (1991) 228 Cal.App.3d 146, 151 [no sua sponte duty to
raise right to wear civilian clothing].)8
The court did not abuse its discretion or otherwise violate
Smith’s constitutional rights as to his appearance at trial.
III. Smith’s presence
Finally, Smith claims the court violated his right to be
present when it excluded him from the courtroom at various
points during the trial. We find no error.
“A criminal defendant accused of a felony has the
constitutional right to be present at every critical stage of the
trial, including during the taking of evidence.” (People v. Bell
(2019) 7 Cal.5th 70, 114.)9 However, an unduly disruptive
defendant may be removed from the courtroom if, after a warning
by the court, he continues his disruptive behavior. (Bell, at
pp. 116–117.)

8 We reject Smith’s alternative ineffective assistance claims
based on counsel’s failure to obtain civilian clothing, or on any
failure to object. A defendant can prevail on such a claim on
direct appeal “only if the record on appeal demonstrates there
could be no rational tactical purpose for counsel’s omissions.”
(People v. Lucas (1995) 12 Cal.4th 415, 442.) It is well-recognized
that “there may be instances where for tactical reasons the
defendant may wish to be tried in jail garb” (People v. Taylor
(1982) 31 Cal.3d 488, 496), such as eliciting sympathy from the
jury. (Estelle, supra, 425 U.S. at p. 508; People v. Williams,
supra, 228 Cal.App.3d at p. 151.)
9 California has statutorily codified this right at
sections 977 and 1043. Smith invokes both the statutory and
constitutional provisions, but presents no separate statutory
argument. We therefore treat the provisions as coextensive.
(People v. Fedalizo (2016) 246 Cal.App.4th 98, 109, fn. 9.)

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 “An appellate court applies the independent or de novo
standard of review to a trial court’s exclusion of a criminal
defendant from trial, either in whole or in part, insofar as the
trial court’s decision entails a measurement of the facts against
the law.” (People v. Waidla (2000) 22 Cal.4th 690, 741.) As with
Smith’s self-representation claim, we afford “considerable
deference to the trial court’s judgment as to when disruption has
occurred or may reasonably be anticipated.” (Welch, supra,
20 Cal.4th at p. 773.)
Here, Smith was removed from the courtroom at several
critical stages of the trial. However, from the outset of the
proceedings, the court provided Smith ample, clear warnings that
his persistence in disrupting the proceedings would result in
removal from the courtroom. Despite the trial court’s
admonitions, Smith continued to act in a disruptive manner on
several occasions, justifying his exclusion in each instance. The
trial court took pains to protect Smith’s rights under the
circumstances. Smith was never excluded longer than part of one
day’s proceedings, and after at least one exclusion, the court
ensured Smith could still hear the proceedings through remote
audio. (See Illinois v. Allen (1970) 397 U.S. 337, 347 [suggesting
trial courts consider alternatives to removal].)
Smith acknowledges the many warnings preceding his
exclusions and that he behaved in a disorderly manner
throughout his trial. Yet, he argues the exclusions were
unjustified because the misconduct leading to those exclusions
was insufficiently severe, as it was prompted by legitimate
complaints about his representation and presentation in court.
Even had Smith’s grievances been legitimate (which, as
addressed in Parts I and II above, we do not find they were),

25
Smith provides no authority for the proposition that a legally
justified complaint—or even a baseless complaint asserted in
good faith—permits a defendant to flatly disregard rules of
courtroom decorum in the face of repeated reprimands, and we
are aware of none.
Smith further relies on several cases involving exclusion
after a defendant acted violently to argue that his conduct was
insufficiently egregious to warrant his removal from the
courtroom. (See People v. Johnson (2018) 6 Cal.5th 541, 560–
561.) His reliance is misplaced. None of the cases Smith cites
held that violence is a prerequisite to exclusion. As our Supreme
Court has recognized in the statutory context, “[a] trial court
need not wait until actual violence or physical disruption occurs
within the four walls of the courtroom in order to find a
disruption.” (People v. Price (1991) 1 Cal.4th 324, 406.)
The trial court did not err in excluding Smith during
various portions of his trial.

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 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.

ADAMS, J.*

We concur:

LAVIN, Acting P. J.

EGERTON, 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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