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Waiver of Jury Requires Explanation by Judge of Rights Defendant Is Surrendering—C.A.
By a MetNews Staff Writer
A criminal defendant who said “yes sir” when asked if she gave up the right to a trial by jury did not knowingly, intelligently, and voluntarily waive her entitlement to have her guilt determined by a panel of 12 persons, Div. Six of the Court of Appeal for this district has declared, saying that the judge was remiss in not explaining just what it was she was relinquishing.
Justice Tari L. Cody authored the unpublished opinion, filed Tuesday. She provided this portion of the transcript:
“The Court: Matter has been sent here for jury trial. Had a brief discussion with counsel in chambers. I think it appears that your client is willing to waive jury; is that correct?
“[Appellant’s Counsel]: That’s correct, your Honor.
“The Court: [Appellant], you have a right to have a jury trial by 12 people from the community, the right to cross-examine and confront witnesses, the right not to testify, and the right to present your own evidence. Do you understand those rights?
“[Appellant]: Yes, sir.
“The Court: Willing to give up those rights?
“[Appellant]: Yes, sir.
“The Court: Do you have questions?
“[Appellant]: Not at this time. Thank you.
“The Court: We will show jury trial has now been waived.
“[Appellant’s Counsel]: Counsel joins in the waiver.
“The Court: Counsel joins in the waiver.”
Following a bench trial, Ventura Superior Court Judge Paul W. Baelly found the defendant, Angelita Hernandez, guilty of receiving stolen property of a value in excess of $950 and, taking into account her admission of a prior serious or violent felony, sentenced her to two years and eight months in prison.
High Court’s Guidance
In her opinion reversing the conviction, Cody pointed to the California Supreme Court’s 2017 decision in People v. Sivongxxay. There, then-Chief Justice Tani Cantil-Sakauye (now retired) offered “some general guidance to help ensure that a defendant’s jury trial waiver is knowing and intelligent, and to facilitate the resolution of a challenge to a jury waiver on appeal.”
She said that “[g]oing forward, we recommend that trial courts advise a defendant of the basic mechanics of a jury trial in a waiver colloquy.”
The chief justice added:
“[T]he guidance above is advisory. As reflected in our determination here that defendant entered a knowing and intelligent waiver of his right to a jury trial, a trial court’s adaptation of or departure from the recommended colloquy in an individual case will not necessarily render an ensuing jury waiver invalid….Reviewing courts must continue to consider all relevant circumstances in determining whether a jury trial waiver was knowing, intelligent, and voluntary.”
Mechanics Not Explained
Cody said in Tuesday’s opinion that Baelly failed to “explicate the basic mechanics of a jury trial,” remarking that he “did not even explain that, in lieu of a jury,” he “would decide guilt.”
She noted that the judge advised Hernandez “of other rights—the right to cross-examine and confront witnesses, the right not to testify, and the right to present evidence—and asked if appellant was willing to give up those rights as well.” The justice observed:
“Even though waiver of jury trial did not entail waiver of those other rights, appellant stated she was willing to give them up too. This confused exchange betrays a fundamental misunderstanding as to the nature of the jury trial right. In this context, appellant’s lack of questions is of limited relevance.”
Discussions With Counsel
She added:
“Moreover, the court made no inquiry with appellant, on the record, as to the adequacy or content of any discussion with counsel….Although we recognize no precise advisement or inquiry is necessary, the ‘barebones colloquy,’ combined with the confused exchange over other distinct rights, convinces us that appellant’s jury trial waiver was not knowing and intelligent.”
In Sivongxxay, a factor Cantil-Sakauye considered in determining that the appellant’s jury waiver was valid was that he “had prior experience with the criminal justice system, having pleaded guilty to two prior offenses in Oregon and one in Washington State.”
The Office of Attorney General argued in its respondent’s brief that based on the criminal history of Hernandez, it appears that “she was familiar with the mechanics of a criminal prosecution,” but did allow that “the record does not affirmatively show what previous advisements appellant may have received.”
On the present record, Cody said, it cannot be presumed that ramifications of waiving the right to a jury had previously been explained to the defendant.
The case is People v. Hernandez, B331829.
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