P. v. Bell

1
Filed 1/25/06 P. v. Bell CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL ARTIS BELL,
Defendant and Appellant.
C045135
(Super. Ct. No.
00F04818)
This appeal is a culmination of defendant Michael Artis
Bell’s practice of abusing and manipulating the law enforcement
and judicial systems and the people who serve them.
Defendant is in prison for second degree murder. Since his
arrival there in 1996, he has been a constant irritant,
disrupting all those near him. He has received six write-ups
for batteries on peace officers; five write-ups for resisting
staff by force; seven write-ups for batteries on inmates; two

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write-ups for inciting other inmates; and 27 write-ups for
refusing to comply with orders.
The current case was born of two of his more serious
disruptions. Once charged with the criminal offenses at issue
here, defendant has done everything he could to disrupt local
prison, custodial, and court officials, including the judges
before whom he has appeared. He was represented by four
different attorneys, and filed five different motions to replace
them. He was granted pro per status twice, but also made
multiple requests for appointment of counsel or for continuances
of trial.
He showed grave disrespect for the court. During one court
proceeding, upon being removed for disruptive behavior,
defendant blurted out, “Fuck this courtroom,” and spit at the
judge. On the third day of trial, following a 30-day
continuance granted for defendant, he moved to disqualify the
judge.
Ultimately, trial proceeded despite his efforts to delay.
Having attempted to create reversible error at the trial court,
defendant now comes before this court, arguing he should benefit
from the confusion he created. The shenanigans stop with this
decision. We affirm.
PROCEDURAL HISTORY
Defendant is serving a prison term of 15 years to life for
committing second degree murder in 1994. An information filed
in 2000 charged defendant with three counts of battery by an
inmate (counts one, two and four; Pen. Code, § 4501.5), and one

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count of interference with an executive officer (count three,
Pen. Code, § 69).1 The information alleged similar counts
against a codefendant, Myron Payne, and alleged for purposes of
the “Three Strikes” law defendant had previously been convicted
of murder. (§ 187.)
In 2001, a jury acquitted defendant on count two and was
unable to reach a verdict on the remaining counts. The jury
acquitted codefendant on all counts.
In 2003, defendant was retried on the two remaining battery
charges (count one, occurring on June 9, 1999; and count four,
now designated as count two, occurring on April 19, 2000). A
jury convicted defendant on both counts. It also found true the
prior murder conviction allegation.
The trial court sentenced defendant to a total prison term
of 10 years: the upper term of four years on count one, doubled
under the Three Strikes law, and one-third the midterm, one
year, on count two, also doubled under the Three Strikes law,
both terms to be served consecutively.
On appeal, defendant asserts: (1) he was improperly tried
in absentia and without counsel; (2) his identity as the
assailant was not established by sufficient evidence; (3) the
trial court failed to instruct sua sponte on self-defense for
count two; (4) the trial court failed to give a unanimity
instruction on count two; (5) prosecutorial misconduct; and
1 All undesignated references to sections are to the Penal
Code.

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(6) constitutional error in sentencing defendant to the upper
term on count one.
FACTS
On June 9, 1999, Dale Apodaca was working as a correctional
officer at California State Prison, Sacramento. Another
officer, Alex Andrews, informed Apodaca that defendant, an
inmate, had left a building and gone into the yard in violation
of Andrew’s direct order not to do so. Andrews asked Apodaca to
assist him in approaching defendant.
Andrews told defendant he was going to handcuff him for
disobeying the order. Defendant refused, yelling, “I’m not
going to fucking cuff up and turn around.” Attempting to
diffuse the situation, Apodaca told defendant to calm down,
assuring him he could see the sergeant if he allowed Andrews to
handcuff him and take him to a holding cell. Defendant
continued to refuse and continued to yell and curse.
Apodaca reached out with his right arm to have defendant
turn around. As Apodaca did this, defendant hit Apodoca in the
forehead with his closed fist. Apodaca lost his balance for a
moment, staggering back three or four feet. Then he charged
defendant and bear-hugged him in the chest to gain control of
him. Andrews joined in the fray, and Apodaca fell on top of
defendant. Defendant kept hitting Apodaca in the head and chest
until other officers arrived and contained him.
As Apodaca got up off of defendant, defendant kicked him.
Apodaca suffered permanent injuries to his leg, and as a result,
was no longer able to work as a correctional officer.

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On April 19, 2000, Correctional Officer Richard Mendoza was
supervising the gymnasium at California State Prison,
Sacramento. Defendant was one of about 15 inmates inside the
gymnasium. At about noon, a melee broke out in the yard.
Mendoza heard the officer in the central tower order all inmates
in the yard to get down. He also heard shots of tear gas fired
into the yard.
Mendoza immediately ordered the inmates in the gymnasium to
get down. The inmates complied. Mendoza next opened the
gymnasium door and stepped just outside the door’s threshold.
He did this to see if the staff in the yard needed additional
help, and also to provide himself an avenue of escape in case
the incident spread to the gymnasium.
After taking a quick look at the yard, Mendoza stepped back
into the gymnasium. The microphone to his radio fell off his
utility belt. As he reached down to grab the microphone,
defendant “blindsided” him and hit him on the left side of his
face. The blow pushed Mendoza into a locker and spun him around
to face defendant. Mendoza grabbed defendant and began
struggling and fighting with him. Defendant continued punching
Mendoza in the head and face. Other officers arrived and
subdued defendant. No other inmates were involved.
Defendant, representing himself, did not appear at trial.

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DISCUSSION
I
Trial of Defendant in Absentia and Without Counsel
Defendant asserts he suffered reversible error when the
trial court refused to allow him to withdraw his request to
represent himself, refused to appoint counsel, refused to grant
him continuances to facilitate trial preparation, and wrongfully
ordered him shackled. Defendant waived his right to be present
at any stage of trial. Under these circumstances, he argues the
waiver was not truly voluntary and the judgment is reversible
per se. We disagree.
We provide a detailed review of defendant’s participation
in this case, stopping along the way to address his individual
arguments.
A. Requests for appointment before Judge Tochterman
1. Background information
At the 2001 trial, attorney David Muller represented
defendant. The court declared a mistrial on June 6 and reset
the matter to June 22. On June 22, 2001, defendant refused to
appear, but the court acknowledged attorney Ronald Castro now
represented him.
In November 2001, Castro asked to be relieved as counsel in
part because he was leaving the country for a long period of
time and defendant did not want to wait for his return before
proceeding to trial. The court appointed attorney Frances Huey.
The case was set for trial on April 22, 2002, but Huey was
ill, so the court vacated the trial date. Trial was rescheduled

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for July 9, but at Huey’s request, the court put trial over to
accommodate a motion by defendant to set aside the information
under section 995. Defendant claimed the court had erred by
allowing him to remove himself from his preliminary hearing. On
September 13, 2002, the court denied the motion. The court set
the matter for further proceedings on September 24.
On September 24, Huey was in trial on another matter and
could not appear. Defendant orally made a Marsden motion
(People v. Marsden (1970) 2 Cal.3d 118), which the court set for
October 15. At that hearing, defendant was represented by an
unidentified public defender who informed the court attorney
Castro was again inheriting the case from attorney Huey. On
November 29, the court set trial for April 16, 2003.
On April 16, the prosecutor and attorney Castro announced
they were ready to proceed, but no courtrooms were available.
The prosecutor announced he would not be available again until
the end of May. The court set trial for May 21.
At this point, defendant addressed the court. He stated
the delays in getting this case to trial were holding up a
transfer for him from an administrative segregation unit to
another facility. If trial could not start that day, he offered
to change his plea to no contest to both charges and be
sentenced at that time.
The prosecutor asked the court not to agree to defendant’s
request. He had already offered defendant the low term on one
count as a plea bargain, and believed it would not be fair to
“up the ante” just because defendant wanted to plead.

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The trial court noted defendant’s objection, but set trial
for May 21. It also scheduled a hearing for the next day, April
17, where defendant could announce whether he wanted to change
his plea.
At the April 17 hearing, defendant repeated his request to
plead guilty to both counts if he could not get a trial so he
could be transferred out of administrative segregation. The
court confirmed the offer made by the prosecution (low term on
one count, doubled) was still available. Defendant, however,
did not want a plea bargain. He wanted a trial.
The court gave defendant a choice. He could change his
plea, or wait for trial on May 21. In response, defendant
orally filed a Marsden motion. The court explained granting
that motion would extend the trial until a new attorney could
assume the case and become prepared. Defendant proceeded with
his motion. The court convened an in camera hearing, denied the
Marsden motion, and ordered the transcript of the hearing
sealed.
Back in open court, defendant next asserted his right to
represent himself under Faretta v. California (1975) 422 U.S.
806 (Faretta) [45 L.Ed.2d 562]. The court urged defendant not
to represent himself, explaining the numerous and difficult
problems he would encounter preparing a case while in
administrative segregation. The court explained it could not
assist defendant if the prison put restrictions on his library
privileges. The court also explained it would not delay the
case if he later decided to hire an attorney.

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Defendant, however, was adamant. The court in writing
informed defendant he was entitled to be represented by counsel
at any stage of the case but the court would not delay the case
after he waived his right to counsel to allow an attorney to
prepare to represent him. After giving oral and written
warnings, the court reluctantly relieved attorney Castro as
defendant’s attorney of record. Trial remained set for May 21.
Castro agreed to copy his files and have them delivered to
defendant.
On May 13, eight days before trial, defendant filed motions
for an order unsealing the April 17 Marsden hearing transcript,
and for an order to compel the Department of Corrections to
allow him pro per privileges for preparing his case. He claimed
he had been denied the use of prison procedures afforded to pro
per prisoners.
On May 16, Judge Ronald Tochterman denied defendant’s
motions for lack of good cause. Regarding the pro per
privileges, the court directed defendant to file a petition for
an order to show cause to hold the Department of Corrections in
contempt.
After the court confirmed the trial date of May 21,
defendant moved to continue the trial date because he had not
yet received the case records from Castro. The court denied the
motion for lack of good cause and failing to comply with the
procedural requirements for seeking continuances, as set forth
at section 1050. Defendant complained he could not comply with
the statute because he had no access to the law library. The

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court again directed defendant to file a petition for an order
to show cause with respect to contempt.
In response, defendant asked to withdraw his Faretta
waiver, claiming he was not being allowed an adequate
opportunity to defend himself. The court continued the matter
to May 19 to learn if attorney Castro would be willing and ready
to proceed to trial on May 21.
At the May 19 hearing before Judge Tochterman, attorney
Castro refused to be appointed as defense counsel due to his
past relationship with defendant. Castro complained defendant
manipulated him and was untruthful. Fern Laetham, executive
director of Sacramento County Conflict Criminal Defenders,
stated a new appointment would be defendant’s fifth. It would
take two or three months before a new attorney could be ready to
try the case. She offered to find a new attorney and have new
counsel set a trial date in a week. The prosecutor did not
oppose continuing the case to allow for new counsel.
When the court asked defendant if he agreed to that
proposal, he stated he wanted to continue representing himself,
and he filed a written motion for a 90-day continuance to allow
him to prepare a defense. Defendant claimed good cause existed
because he had not yet received the case files from his prior
attorney. The court asked whether defendant was now withdrawing
his request for an attorney, and defendant confirmed he was
doing so.
The court denied the motion for continuance: “I’m not
going to grant an evidentiary hearing unless you file a

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declaration under penalty of perjury satisfying me that there
may be some basis for what you are talking about. You have to
set forth in detail what requests you have made, when you have
made them, to whom you have made them and what responses have
been made. So far I haven’t seen anything like that.”
The court confirmed the trial date, at which point the
following occurred:
“THE DEFENDANT: “I withdraw my right. I see that you guys
are not going to fairly let me represent myself; that I don’t
get the same privileges as an attorney did when you --
THE COURT: [Defendant], you don’t get to make a speech.
First you make a motion and then maybe --
THE DEFENDANT: I made the motion. What I am saying --
THE COURT: I don’t know what the motion -- wait a moment.
He is interrupting me. [Defendant] is interrupting me. I
order that he be removed from the courtroom.
THE DEFENDANT: Fuck this courtroom.”
As defendant was removed from the courtroom he spat at the
judge. The court stated: “For the record, [defendant] actually
spit in the direction of the bench. I don’t know if he hit
anybody, and he said what he said. [¶] I’m satisfied that his
most recent motion was made in bad faith and was an effort to
manipulate the Court given the history of that, have been now
informed about.”
2. Analysis
Defendant claims Judge Tochterman had no discretion to deny
his requests for appointment of counsel on May 16 and May 19,

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and, even if the court had discretion, it abused it. The
argument fails because defendant withdrew his May 16 request for
appointment before Judge Tochterman ruled on it, and defendant
ineffectively attempted to raise the request again before he was
removed from the courtroom.
After defendant made his request for counsel on May 16, the
court continued the matter until May 19. At that hearing, the
court was ready to grant defendant’s request and vacate the
trial date until new counsel was appointed and agreed to a date.
Upon learning the court’s intention, however, defendant withdrew
his request and stated he would continue representing himself.
The court verified through inquiries of defendant that he did in
fact choose to withdraw his request, and defendant confirmed
that was his intent. This occurred before the court ruled on
his request for counsel.
After the court denied defendant’s motion for a
continuance, defendant attempted to request appointment of
counsel again. The court tried to inform him his request had to
take the form of a motion but defendant continued interrupting
the court, and he was ordered out of the courtroom. Thus, no
request for counsel was made before Judge Tochterman.
B. Request for appointment before Judge Gilliard
1. Background information
The case came on for trial on May 21 before Judge Maryanne
Gilliard. When the court asked defendant if he was ready to
proceed, he replied, “No.” He explained he had not received any
files from his previous attorney and had not been able to

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interview witnesses. Because his request for a 90-day
continuance had been denied, he requested appointment of
counsel.
Defendant’s investigator explained she had received the
files and mailed them to the prison, but they apparently had not
been delivered to defendant. Defendant renewed his motion for a
90-day continuance. The court denied both requests for counsel
and a continuance.
Defendant then waived his right to appear at trial. The
court directed the prosecutor to do whatever he could to
facilitate delivery of the case files to defendant that day.
The following day, May 22, defendant indicated he received
a box of materials the prior evening. The court indicated it
was reconsidering defendant’s request for a continuance. It
made the following findings: “That [defendant] has made
repeated and multiple requests for appointment of counsel; that
[defendant] has previously been represented by at least four
different attorneys throughout the course of this case; that
there have been at least five Marsden motions made with respect
to the number of attorneys that have been representing
[defendant], that [defendant] has been granted pro per status at
least twice, the most recent being on April 17th of this year;
that even on April 17th of this year after a Marsden motion was
denied and [defendant] was granted his [Faretta] rights and
warned accordingly that subsequent to that granting of pro per
status [defendant] again renewed his request for an attorney.
Said request being denied.

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“And then there have been multiple requests between April
17th and today’s date for either appointment of counsel, motions
to continue the trial date, as well as requests made on the same
date for either appointment of counsel [or] the ability to
proceed pro per and for motions to continue the trial.
“I do find that this is an attempt to delay trial in this
matter. That these motions are not made in good faith. That
[defendant] was appropriately given his [Faretta] warnings and
is going to proceed in this case pro per.”
Nonetheless, the court believed defendant was unable to
prepare for trial adequately due to the “bureaucracy inherent in
the running of a prison.” The court granted defendant a 30-day
continuance, the amount of time it believed defendant would have
possessed the case files to prepare for trial had not the
bureaucracy failed to deliver them timely. The court set trial
for June 23, 2003, and instructed defendant to be prepared by
that day.
2. Analysis
Defendant argues the court arbitrarily denied his request
for counsel. He claims the court had no reason to deny the
request since the court was willing to grant him a 30-day
extension in order to prepare for trial. He also asserts the
court could not reasonably conclude his prior request for a
continuance was in bad faith when it granted him a continuance
on this occasion.
Once a defendant proceeds to trial in pro per, it is within
the discretion of the court to determine whether the defendant

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may withdraw the waiver of counsel and have counsel appointed.
(People v. Elliott (1977) 70 Cal.App.3d 984, 993.) In
exercising its discretion, the court looks at such factors as
defendant’s prior history in substituting himself for counsel
and seeking representation, the reasons for the request, the
stage of the trial proceedings, the disruption granting the
request will cause, and the likelihood of defendant’s
effectiveness as his own attorney. (People v. Smith (1980) 109
Cal.App.3d 476, 484.) However, “in the final analysis it is the
totality of the facts and circumstances which the trial court
must consider in exercising its discretion as to whether or not
to permit a defendant to again change his mind regarding
representation in midtrial.” (Ibid.; People v. Gallego (1990)
52 Cal.3d 115, 164-165.)
Of importance here, the request is properly denied where
the court determines it is part of a defendant’s deliberate
attempt to manipulate the court system. (People v. Trujillo
(1984) 154 Cal.App.3d 1077, 1087.)
Here, the court did not abuse its discretion by determining
defendant’s request was part of a continuing attempt to delay
his trial and was made in bad faith. Having reviewed the files,
the court understood defendant had originally sought to change
his plea to guilty because he could not have a speedy trial.
But when given the chance, he instead opted to file a Marsden
motion, knowing it would delay trial further if it was granted.
When it was denied, he waived his right to counsel, with the

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understanding the court may not grant a continuance if he chose
to be represented again.
Nonetheless, eight days before trial, he sought
reappointment of counsel, and the court appeared ready to grant
his request. Seeing that, defendant withdrew the request and
submitted a written motion for a 90-day continuance. When the
court denied the continuance, he swore and spit at the court.
On the day of trial, he sought both reappointment of
counsel and a 90-day continuance. It appeared to the court
defendant was doing anything he could to prevent trial from
proceeding. Considering this behavior, along with defendant’s
five prior Marsden motions and two Faretta waivers, the court
was well within its discretion to deny defendant’s request for
appointment of counsel on the day of trial.
Defendant argues the court’s subsequent grant of a 30-day
continuance eliminated any basis for denying his request for
appointed counsel. This is incorrect. Granting the continuance
did not indicate the court had changed its mind and now believed
the request for counsel was not made in bad faith.
C. Shackling
1. Background information
During the 30-day continuance period, defendant filed a
petition for writ of mandate with this court, which was denied.

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He also filed a Pitchess2 motion for discovery in a different
department to be heard on July 1.
At trial on June 23, defendant’s first order of business
was to request a continuance until after his Pitchess motion was
heard. The court denied his request. Defendant next moved to
disqualify Judge Gilliard. The court denied that motion as
untimely. Defendant then asked to waive his right to be present
at trial.
The court agreed to accept the waiver, but, relying on
People v. Gutierrez (2003) 29 Cal.4th 1196, it required
defendant to be present at least until a jury was called, unless
he wanted to waive his right to a jury. Defendant stated he did
not want to waive his right to a jury, but he did not want to be
in the courtroom if he could not have an attorney. The court
stated he would have to be in the courtroom until the panel came
in and the court made its introductory remarks.
At this point, defendant apparently attempted to get up
from his chair and roll the chair down the aisle. As officers
restrained him, defendant said, “I change my mind already.”
At some earlier point, defendant had requested not to be
restrained in front of prospective jurors, and he had asked to
be dressed out. After defendant was restrained, the court asked
an officer from the Department of Corrections whether, in light
of defendant’s attempt to get up from his chair, it was prepared
2 Pitchess v. Superior Court (1974) 11 Cal.3d 531.

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to allow defendant not to be handcuffed during jury selection.
The officer recommended defendant stay in restraints for public
safety. Without ruling on the point, the court took a small
recess and directed the officers to dress defendant out.
After the recess, however, defendant refused to leave his
holding cell and return to the courtroom. He told the officer
and his investigator he would not enter the courtroom without an
attorney and he would be disruptive if he did return without an
attorney.
The court reconvened the proceedings at the holding tank.
The court confirmed defendant had signed a section 977,
subdivision (b) waiver of his right to be present during all
portions of the trial. As the court attempted to ascertain his
understanding of the rights he was waiving, defendant either did
not respond or said, “I plead the Fifth.” At one point, he said
he wanted an attorney to represent him. The court acknowledged
his request, but stated that motion had been previously denied.
The court found defendant voluntarily and knowingly waived
his right to be present at trial. It ordered defendant’s
investigator to determine defendant’s status each day during
trial. The court also announced it would not order officers to
perform any kind of cell extraction against defendant so as to
protect the officers from risk of injury.
Defendant asked for permission to have his investigator
take a photograph of him to be presented to the jury. The court
allowed that request. The court then reconvened in the
courtroom and empanelled the jury.

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The next day, June 24, the court commenced proceedings by
inquiring of defendant’s status. His investigator informed the
court defendant would participate only with an attorney. At
that point, defendant entered the courtroom and requested an in
camera hearing to explain the situation and express himself
about it. The court refused, saying it could not participate in
ex parte communications with a party. Defendant asked if the
prosecutor could join them. The court again refused and asked
defendant to express himself in open court. He refused.
Defendant stated he intended to present a defense, call
witnesses, and be present in court to do that. Defendant gave
the court an offer of proof of the facts to which four witnesses
would testify. He stated his investigator had been unable to
interview two of the witnesses because they were in a lockdown
when the investigator went to the prison to meet with them.
Defendant asked to have the prisoners brought to court so the
investigator could interview them. The court agreed to sign the
orders to produce, expressing confidence the Department of
Corrections would make all necessary efforts to secure the
witnesses’ timely appearances.
With defendant still present, the court conducted a
security hearing. A deputy sheriff testified defendant posed a
serious threat to public safety if security measures were not
taken at trial. He asked for defendant to be secured to the
court chair with only his writing hand free of restraints.
The deputy testified defendant’s disruptive behavior had
escalated since being incarcerated in 1996. Defendant had

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received six write-ups for batteries on peace officers; five
write-ups for resisting staff by force; seven write-ups for
batteries on inmates; two write-ups for inciting other inmates;
and 27 write-ups for refusing to comply with orders.
Before one court proceeding in this case, defendant refused
to leave the van and had to be removed physically. In another,
defendant had to be physically extracted. In the hearing before
Judge Tochterman, defendant spat on the floor after the court
ruled against him. And on the preceding day, defendant
attempted to leave the courtroom and had to be physically
restrained.
Defendant argued one of the incidents was fabricated, and
the others related to proceedings before other judges. The
court found manifest necessity for restraints, and granted the
sheriff department’s request. However, the court required
defendant’s writing hand to remain free so he could take notes
during the trial. After ruling, the court asked defendant if he
wanted to be present for the prosecution’s case. Defendant said
he did not. He returned to the holding tank, and the
prosecution proceeded with its case. After Officers Mendoza and
Apodaca testified, the prosecution rested, and the court
recessed for lunch.
2. Analysis
Defendant claims his decision to absent himself from court
resulted from invalid orders to keep him restrained, and thus
his absence was not truly voluntary. We disagree. Defendant’s
original decision on June 23 to waive his right to appear was

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not based on a shackling order. The court did not make a
shackling order that day. On June 23, defendant first raised
the motion to absent himself and later refused to return to the
courtroom because he was pro per and not represented by counsel:
“I’m not going to be in this court while you guys railroad me.
I have a right to an attorney.” Defendant told the officer
summoned to retrieve him from the holding cell, “I don’t want
the jury to know that I am pro per.” He said nothing about a
shackling order.
Defendant claims the trial court erroneously ordered him
restrained on June 23. The record discloses the trial court
made no such order that day. After defendant was restrained for
attempting to get up from his chair, the court asked a custody
officer the Department of Correction’s position on restraining
defendant. After the officer responded, however, the court made
no shackling order. It simply ordered the officers to dress
defendant out. Defendant then refused to return to the
courtroom. The court issued no shackling order that day that
could have affected his decision not to appear.
The following day, June 24, the court convened a security
hearing at which time it took sworn testimony concerning
defendant’s history of violence and disrupting the court. It
also heard argument from defendant. It then issued a shackling
order. Defendant argues the order was erroneous and he absented
himself due to judicial error. If it was correct, he argues the
proper remedy was to revoke his Faretta rights and appoint

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counsel, not require him to continue representing himself while
shackled.
“[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. [Citations.] . . . [I]n any case where physical
restraints are used those restraints should be as unobtrusive as
possible, although as effective as necessary under the
circumstances. [¶] In the interest of minimizing the
likelihood of courtroom violence or other disruption the trial
court is vested, upon a proper showing, with discretion to order
the physical restraint most suitable for a particular defendant
in view of the attendant circumstances. The showing of
nonconforming behavior in support of the court's determination
to impose physical restraints must appear as a matter of record
and, except where the defendant engages in threatening or
violent conduct in the presence of the jurors, must otherwise be
made out of the jury's presence. The imposition of physical
restraints in the absence of a record showing of violence or a
threat of violence or other nonconforming conduct will be deemed
to constitute an abuse of discretion.” (People v. Duran (1976)
16 Cal.3d 282, 290-291, fns. omitted.)
“We are not unmindful of the dangers posed by unruly
defendants or by those who have expressed an intention to
escape. The rule expressed herein should not afford such
defendants any solace, as their words or actions are likely to
justify restraints.” (People v. Duran, supra, 16 Cal.3d at pp.

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292-293, fns. omitted.) “We do not mean to imply that
restraints are justified only on a record showing that the
accused is a violent person. An accused may be restrained, for
instance, on a showing that he plans an escape from the
courtroom or that he plans to disrupt proceedings by nonviolent
means. Evidence of any nonconforming conduct or planned
nonconforming conduct which disrupts or would disrupt the
judicial process if unrestrained may warrant the imposition of
reasonable restraints if, in the sound discretion of the court,
such restraints are necessary.” (Id. at p. 292, fn. 11.) The
court’s determination cannot be challenged on review except on a
showing of a manifest abuse of discretion. (Id. at p. 293, fn.
12.)
The trial court here did not abuse its discretion in
ordering restraints. The court received sworn testimony
regarding defendant’s violent and disruptive tendencies.
Defendant had a long history of violence, threats of violence,
and other nonconforming conduct that would certainly disrupt the
court proceedings. The court had already witnessed one grossly
insulting courtroom tirade by defendant.
Defendant claims even if the court did not abuse its
discretion in ordering restraints, the court erred in not
revoking his Faretta rights due to his disruptive behavior.
Certainly the court had discretion to revoke those rights if
defendant engaged in “serious and obstructionist misconduct.”
(Faretta, supra, 422 U.S. at p. 834, fn. 46.) However, the
court could have reasonably believed the restraints would

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prevent defendant from disrupting the proceedings while he
presented his defense, as he stated was his intent. The court
did not abuse its discretion in allowing defendant to proceed
with his case while restrained.
D. Denial of recess to interview witnesses
1. Background information
At the commencement of the afternoon session, defendant
appeared in court outside the jury’s presence. He was under the
impression when his witnesses arrived, he and his investigator
could interview them briefly before putting them on the stand.
The court understood defendant’s position and that two of his
witnesses had arrived, but stated it would permit him only to
put them on the stand. Defendant had already provided an offer
of proof of what he expected their testimony to be. The court
would not grant him more time and delay the jury any further.
Defendant replied: “Well, I won’t do what I can then. I
will not do it like that being that I’ll be setting myself up if
I do it like that. I don’t know exactly to what they going to
say. I just have a general idea. And I don’t want to bring
them up, and it will be more damaging than good. So under those
circumstances I can’t proceed with it.”
The court asked defendant if he wanted to see the
prosecution’s exhibits before they were moved into evidence.
Defendant refused. The court encouraged defendant to look at
them, but he refused to do so unless counsel represented him.
He also again waived his right to be present for further
proceedings.

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The court accepted that waiver, but indicated for the
record defendant had consistently engaged in a pattern of
manipulation, delay, and attempts to thwart the trial from going
forward. It noted the positive efforts made by the Department
of Corrections in response to defendant’s late requests for
witnesses that morning. The Department had secured the physical
presence of two witnesses from California State Prison,
Sacramento, and had arranged for two other witnesses from
Pelican Bay and Corcoran State Prisons to testify by means of
closed circuit television. The court concluded defendant’s
requests for delaying the afternoon session were untimely and
made for the purpose of further thwarting the system of justice.
The court was not going to take any more time from the jurors’
busy schedules and the trial to accommodate an investigation
that should have been conducted months before.
The court again asked defendant if he wanted to participate
in a defense or go back to the holding cell. Defendant asked
his investigator to explain the steps she took to obtain and
interview the witnesses, and then he would “peace out and let
you guys finish the trial.”
The investigator stated she wrote a letter asking for
permission to visit the potential witnesses in prison. Two of
the proposed witnesses responded in writing agreeing to her
visit. The next time the investigator was able to visit the
prison, the prison was in a lock down and she was not allowed to
have a confidential visit with the witnesses. She was unable to
visit with the witnesses before trial.

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Upon again requesting an attorney, and again being denied
one, defendant left the courtroom and went back to the holding
tank. The jury deliberated that afternoon, convicted defendant
on both counts, and found true the prior conviction allegation.
2. Analysis
Defendant claims the court’s denial of his request to
interview the witnesses was an abuse of discretion in violation
of due process. We disagree. Defendant began representing
himself in this matter on April 17, 2003, one day after his
attorney had announced he was ready for trial and nearly 10
weeks before trial actually occurred. The court went to great
lengths to discourage defendant from representing himself,
cataloging the many issues that could arise, including subpoena
problems, access to a law library, and investigation problems.
It also informed defendant he would be expected to know and
conform to the rules of the Evidence Code.
Defendant had nearly 10 weeks to subpoena witnesses. He
did not have his prior attorney’s files and records for much of
that time, but it appears defendant knew his witnesses
personally. He could have contacted them through the mail or
begun subpoenaing them sooner, but he did not.
He did not request subpoenas until what turned out to be
the last day of trial. However, he already knew in general to
what the witnesses would testify, and he earlier gave an offer
of proof to the court for each witness. Under these
circumstances, we cannot say the trial court abused its

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discretion in refusing defendant’s request for a recess to
interview his witnesses.
E. Adequacy of Faretta warning
Defendant complains his Faretta warning was inadequate
because the court did not inform him his election to represent
himself could be treated as irrevocable, nor did it inform him
he would be forced to represent himself while shackled if the
court deemed him disruptive.
“The test of a valid waiver of counsel is not whether
specific warnings or advisements were given but whether the
record as a whole demonstrates that the defendant understood the
disadvantages of self-representation, including the risks and
complexities of the particular case.” (People v. Bloom (1989)
48 Cal.3d 1194, 1225.) “As long as the record as a whole shows
that the defendant understood the dangers of self-
representation, no particular form of warning is required.”
(People v. Pinholster (1992) 1 Cal.4th 865, 928-929.)
The court’s warning to defendant satisfied this test. It
advised defendant of the dangers of representing himself,
including the particular complexities he would face in this case
in his position as a prisoner. It required defendant to conform
to all applicable laws. Defendant understood these dangers.
Indeed, he admitted to representing himself unsuccessfully in
another court proceeding.
The court is not required to warn a defendant exercising
his Faretta rights that he may change his mind and, if he does,
the court may well refuse his request. Nor is the court

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required to inform him as a part of a Faretta warning that if he
misbehaves he may be shackled. As discussed above, an order to
shackle is based on many factors beyond those considered in the
Faretta context.
Defendant was warned if he was disruptive he would be
removed from the courtroom and counsel would be appointed.
Defendant asserts a person receiving this warning would not
realize he could be forced to defend himself while shackled or
while absent from the courtroom, but would instead expect the
court to appoint counsel. An attorney, however, would know
otherwise. Once trial has started, the decision to remove a
defendant, shackle a defendant, or appoint counsel for a
defendant representing himself is left to the sound discretion
of the court upon the proper evidentiary showing. Defendant’s
failure to understand this is simply a risk he took by
representing himself. The court is not required in a Faretta
warning to inform defendant of every possible risk and pitfall
he might incur by engaging in repetitive disruptive behavior.
All of the above discussion demonstrates defendant
voluntarily and knowingly chose to exercise his Faretta right to
represent himself. When he sought continuances and subsequent
representation, the trial court acted within its discretion in
determining he was making the requests in bad faith and denying
those requests. The shackling order was based on sufficient
facts and did not coerce defendant to absent himself from trial.
“[I]t is well settled that a defendant for an offense not
punishable by death is entitled to absent himself from the

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proceedings. [Citations.] Further, it is settled that the
right of a defendant to represent himself includes the right to
decline to conduct any defense whatsoever. ‘The choice of self-
representation preserves for the defendant the option of
conducting his defense by nonparticipation. [Citation.] A
competent defendant has a right to choose “simply not to oppose
the prosecution’s case.” [Citation.] . . . There is no
question but that a defendant’s right to effective counsel is
violated if his attorney fails to attend the proceedings. Where
a defendant has chosen to represent himself, however, he is
entitled to conduct that defense in any manner he wishes short
of disrupting the proceedings, and thus is free to absent
himself physically from trial. If, as here, that choice was
voluntary, it will be respected. It follows that a defendant
who has exercised his right of self-representation by absenting
himself from the proceedings, may not later claim error
resulting from that exercise.” (People v. Parento (1991) 235
Cal.App.3d 1378, 1381-1382.)
II
Sufficiency of Evidence Establishing Defendant’s Identity
Defendant argues the prosecution failed to introduce
sufficient evidence to establish him as the assailant described
in both offenses at trial. We disagree.
A. Background information
Outside the presence of the jury, defendant stated he did
not want to be present for the prosecution’s case. However, he
did intend to be in the courtroom to present a defense.

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During the prosecution’s case, Officers Apodaca and Mendoza
were each shown a photograph and asked if they recognized the
person depicted in the photograph. Both witnesses stated the
person was “Inmate Bell.” Then they proceeded to describe what
Inmate Bell did to them. The photograph, identified in the
clerk’s transcript as exhibit 8, a “photo of Michael Bell,”
bears the label “M Bell K-10775 10/16/2001.”
As described above, after the prosecution completed its
case and the court denied defendant time to interview his
witnesses, defendant informed the court he no longer intended to
present a defense. Thus, at no time did defendant appear before
the jury.
The court asked defendant if he wanted to see the exhibits
the prosecution would move into evidence. Defendant declined
the offer. The court again suggested showing him the exhibits
to see if he had any objections to them. Defendant refused to
view them. The photograph of “M Bell” was included in the
exhibits, and it was admitted into evidence.
B. Analysis
Defendant argues insufficient evidence supports his
identification as the perpetrator of the crimes. Because he
absented himself from trial, he was never identified before the
jury as the perpetrator. Although the officers testified they
were attacked by “Inmate Bell” and identified the photograph as
depicting “Inmate Bell,” defendant claims the prosecution never
established “Inmate Bell” in the photograph was in fact the

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defendant. We conclude substantial evidence established
defendant’s identity as the perpetrator.
“‘In determining whether a reasonable trier of fact could
have found defendant guilty beyond a reasonable doubt, the
appellate court “must view the evidence in a light most
favorable to respondent and presume in support of the judgment
the existence of every fact the trier [of fact] could reasonably
deduce from the evidence.”’ [Citation.]” (People v. Staten
(2000) 24 Cal.4th 434, 460.)
“Ordinarily a criminal defendant can be required to be
present in the courtroom for the purpose of identification.
(Pen. Code, § 1043 [‘nothing herein shall limit the right of the
court to order the defendant to be personally present at the
trial for purposes of identification unless counsel stipulate to
the issue of identity’]; People v. Breckenridge (1975) 52
Cal.App.3d 913, 936.)
“Where, as here, the defendant absents himself and cannot
be found, his conduct requires that other means of
identification be used. A single person photographic showup is
not inherently unfair. (People v. Floyd (1970) 1 Cal.3d 694,
714.) Showing the witnesses a single photo of the defendant is
no more impermissibly suggestive than an in-court identification
with the defendant personally sitting at the defense counsel
table in the courtroom. (See People v. Breckenridge, supra, 52
Cal.App.3d at p. 935; People v. Green (1979) 95 Cal.App.3d 991,
1003.)” (People v. Yonko (1987) 196 Cal.App.3d 1005, 1008,
italics in original.)

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The trier of fact could reasonably deduce that the
photograph of Inmate Bell submitted into evidence was the same
defendant Bell being tried in this case. Otherwise, we would be
forced to determine the prosecution committed a fraud on the
court, a fraud the trial court would have easily detected due to
its familiarity with defendant. Nothing in the record indicates
that to have been so.
Defendant has little standing to fault the identification
procedure used. After he refused to leave the holding tank to
appear in court for jury selection, and the court ordered
officers not to extract him to protect their own safety, the
prosecution was left with no option but to show a photograph of
defendant to the witnesses and jury. “Here, as noted, the
assertedly unreliable photographic identification procedure was
necessitated by defendant’s own disruptive conduct. Under these
circumstances, we find no undue unfairness in that procedure.”
(People v. Medina (1995) 11 Cal.4th 694, 753.)
We also note the number on “M Bell’s” photograph, K-10775,
is the inmate number assigned to defendant by the Department of
Corrections. The jury correctly identified defendant as the
“Inmate Bell” who committed the batteries against Officers
Apodaca and Mendoza.
III
Self-defense Instruction on Count Two
Defendant asserts there was substantial evidence supporting
a theory of self-defense and, consequently, the court should

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have instructed the jury sua sponte on an inmate’s right of
self-defense against a correctional officer. We disagree.
A trial court has a duty to instruct on affirmative
defenses sua sponte when “‘“it appears that the defendant is
relying on such a defense, or if there is substantial evidence
supportive of such a defense and the defense is not inconsistent
with the defendant’s theory of the case.”’ [Citations.]”
(People v. Maury (2003) 30 Cal.4th 342, 424.)
Since defendant chose not to appear at trial, there was no
indication he was relying on self-defense. The court’s duty
would have arisen only if there was substantial evidence in
support of self-defense. Defendant claims that evidence is
found in Officer Mendoza’s testimony. Defendant states Mendoza
claimed he was “blindsided” by a blow to his head while there
was “chaos and commotion” in the prison gymnasium. Mendoza spun
around to face defendant, grabbed him while trying to get his
own senses, and began fighting him. Defendant asserts this
testimony is evidence Mendoza was possibly mistaken about the
identity of his attacker. Mendoza did not see who or what hit
him, was knocked somewhat senseless, and in the chaos and
commotion deduced defendant hit him because that is who he saw.
If Mendoza was mistaken as to who blindsided him, defendant
concludes, defendant was acting in self-defense.
Defendant’s recitation of the facts is incomplete. Officer
Mendoza testified the chaos and commotion was occurring outside
in the yard, not in the gym. In fact, he ordered all of the
inmates in the gym to get down onto the floor, which they did.

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After looking into the yard, Mendoza was hit as he walked back
into the gym. Mendoza stated he was “blindsided” by a punch to
the left side of his face. The momentum spun him around to
where he was facing defendant. Defendant then continued
attacking Mendoza after the initial hit, punching him in the
head and face. There is no evidence any other inmate was
standing. There is no evidence any other inmate was involved in
the attack.
This testimony does not provide substantial evidence
supportive of a defense of self-defense. Defendant was the
aggressor. Officer Mendoza identified him as such. Mendoza was
not mistaken because no other inmate was standing or
participated in the assault. The court committed no error when
it did not instruct the jury sua sponte on self-defense.
IV
Unanimity Instruction on Count Two
Defendant argues, based on the possibility another inmate
first hit Officer Mendoza, the court was required to give a
unanimity instruction. He claims the evidence shows there were
two different batteries on Mendoza; one when Mendoza was
blindsided, the other when Mendoza and defendant fought with
each other.
We have already determined there is no substantial evidence
supporting this theory. The only evidence in the record shows
defendant attacked Mendoza first, and continued attacking him
until he was restrained. No one else was involved. A unanimity
instruction is not required where there is only one act or

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where, as could also be argued here, the two or more acts are so
closely related in time they form a single transaction. (People
v. Whitham (1995) 38 Cal.App.4th 1282, 1295.) The court
committed no error here.
V
Prosecutorial Misconduct
Defendant argues the prosecutor committed misconduct in his
closing argument. To preserve a claim of prosecutorial
misconduct on appeal, defendant must object to the alleged
misconduct and request a curative admonition. (People v. Price
(1991) 1 Cal.4th 324, 447.) Defendant, obviously, did not
object to the argument because he absented himself from trial.
Defendant forfeited this argument.
Defendant argues forfeiture should not apply against an
absent defendant who was not represented by counsel. We
strongly disagree. Defendant was clearly and adequately warned
of the risks of representing himself. He knew he was
responsible for making all evidentiary objections. He was also
warned of the risks of absenting himself from trial. He
understood he would not be able to make objections if he was not
in the courtroom. Forfeiture of claims for failing to object is
one of those risks he voluntarily and knowingly assumed.
Defendant argues an objection was not required because an
admonition would not have cured the alleged misconduct. Under
the circumstances here, we disagree.
Defendant faults the following portion of the prosecutor’s
closing argument: “And I’ll tell you in . . . 33 years I can

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never remember another prosecutor in our office having anything
like this. It’s scary. It really is. ’Cause normally we’re
used to having somebody hollering at us most of the time. You
know, being at your back so to speak to keep us, you know,
honest so we don’t ask leading questions, so we don’t go over
the boundaries.
“In this case -- kind of a case you have to act -- I do --
as my own guard. And it is difficult. And perhaps I didn’t put
on as much as I normally would have tried, but let’s get back to
the two witnesses. What is it about them that you would find
unbelievable? Nothing. What is it that they said that would
allow you to doubt them? Nothing. There was no
inconsistencies. They testified about what happened to them.
“Could there have been other witnesses? Yes. There were
other people who were present. What are they going to say? Do
you want redundancy? No. You don’t need that, and I don’t need
to keep you here that long. And that’s why we cut it down to
the two witnesses who were the victims.” (Italics added.)
Defendant alleges it was misconduct to claim other
eyewitnesses were not called because their testimony would have
been redundant. (See People v. Hall (2000) 82 Cal.App.4th 813,
817.) Even if that were so -- a point the People do not concede
-- had an objection been made, the court could have cured the
harm with an admonition. It could have admonished the jury not
to infer there were other witnesses, not to speculate what the
testimony might have been from other witnesses or what other
evidence the prosecution might have presented, and not to

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speculate whether such evidence would have corroborated or
contradicted the officers’ testimony.
Even without an objection, the harm from any error made by
the prosecutor was minimized by the trial court’s instruction on
witnesses. The court informed the jury: “Neither side is
required to call as witnesses all persons who may have been
present at any of the events disclosed by the evidence or who
may appear to have some knowledge of these events. Neither side
is required to produce all objects or documents mentioned or
suggested by the evidence.”
Thus an objection was required, but defendant, by choosing
not to appear, chose not to object. He thereby forfeited his
opportunity to raise the objection here.
VI
Sentencing to Upper Term
Defendant claims the court violated Blakely v. Washington
(2004) 542 U.S. 296 [159 L.Ed.2d 403], when it imposed the upper
prison term on count one based on facts not found by the jury or
admitted by defendant. Our Supreme Court has determined
California’s determinate sentencing system does not violate
Blakely. (People v. Black (2005) 35 Cal.4th 1238, 1261-1264.)
The trial court committed no constitutional error in sentencing
defendant to the upper term.
DISPOSITION
The abstract of judgment incorrectly states the year count
one was committed was “OO.” This must be corrected to note the
year count one was committed was “1999.” In all other respects,

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the judgment is affirmed. The trial court is directed to amend
the abstract of judgment accordingly, and to forward a certified
copy of the amended abstract of judgment to the Department of
Corrections and Rehabilitation.
NICHOLSON , Acting P.J.
We concur:
ROBIE , J.
BUTZ , J.

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