THE PEOPLE, Plаintiff and Respondent, v. ANNELISSA CHRISTINE GOMEZ, Defendant and Appellant.
C095518 (Super. Ct. No. 20CR15666)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Glenn)
Filed 11/1/22
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After a court trial, defendant Annelissa Christine Gomez was found guilty of attempting to smuggle contraband into a conservation camp. Defendant appeals, contending she did not provide a knowing, voluntary, and intelligent waiver of her right to a jury trial. We conclude defendant‘s jury waiver was knowingly, voluntarily, and intelligently made under the totality of the circumstances. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant sat in the back seat of a vehicle when, approximately a mile away from Valley View Conservation Camp (camp), police offiсers pulled the vehicle over. Inside the vehicle, police officers found a reusable grocery bag containing alcohol, tobacco,
Defendant was charged with one count of attempted smuggling of contraband into a conservation camp. Defendant had prior traffic infractions but no prior convictions.
At the trial readiness conference, defense counsel entered a jury waiver. Defense counsel advised the court that he and defendant had discussed “the difference between a jury trial and a trial by court” and defendant wanted to waive her right to a trial by jury. The trial court asked defendant if that was correct and whether she had an opportunity to speak with her attorney about thе difference between a court trial and a jury trial. Defendant responded in the affirmative to both questions. The trial court further asked defendant if she “underst[ood] the difference is that twelve people sit in judgment with you in a jury trial, and only one person would sit in judgment on a court trial?” Defendant responded, “[y]es.” The trial court confirmed defendant and the prosecution wanted to waive the right to a jury trial and then accepted the waiver, “find[ing] it‘s been knowingly and intelligently done.”
After finding defendant guilty of attempting to smuggle contraband into a conservation camp, the trial court sentenced defendant to two years of probation, including 90 days to be served either in Glenn County Jail or on electronic home monitoring, and ordered her to pay a fine and multiple assessments totaling $890. Defendant appeals.
Defendant asserts her jury waiver was not knowingly and intelligently made bеcause: (1) the trial court did not advise her that she could participate in jury selection through counsel or that the 12 jurors would have had to reach a unanimous decision; (2) neither the trial court nor defense counsel advised her that the trial court would consider defendant‘s husband‘s full confession, which incriminated her; and (3) defendant had no prior significant experience with the criminal justice system.
The People argue the record shows defendant validly waived her right to a jury trial based on her discussions with counsel, the trial court‘s clarifying advisement and questions, and defendant‘s active participation in her defense. The People further argue that defendant‘s reliance on Jones is misplaced, and her argument regarding evidentiary matters pertaining to her husband‘s statements does not inform whether her jury waiver was valid. (People v. Jones (2018) 26 Cal.App.5th 420.)
We conclude, based on the totality of the circumstances, defendant‘s jury trial waiver was made knowingly, voluntarily, and intelligently.
A criminal defendant has a constitutional right to a jury trial. (
Our Supreme Court “has not mandated any specific method for dеtermining whether a defendant has made a knowing and intelligent waiver of jury trial in favor of a bench trial.” (Sivongxxay, supra, 3 Cal.5th at p. 167.) Instead, whether a defendant
On appeal, the reviewing cоurt examines the trial court‘s colloquy with the defendant before the trial court accepted the waiver. (People v. Daniels, supra, 3 Cal.5th at p. 991.) Our Supreme Court “recommend[s] that trial courts advise a defendant of the basic mechanics of a jury triаl in a waiver colloquy, including but not necessarily limited to the facts that (1) a jury is made up of 12 members of the community; (2) a defendant through . . . counsel may participate in jury selection; (3) all 12 jurors must unanimously agree in order to rеnder a verdict; and (4) if a defendant waives the right to a jury trial, a judge alone will decide . . . guilt or innocence.” (Sivongxxay, supra, 3 Cal.5th at p. 169.) These guidelines are, however, merely advisory, and not meant “to limit trial courts to a narrow or rigid colloquy.” (Id. at p. 170.) The trial court must consider “a defendant‘s individual circumstances” to determine if the waiver is knowingly and intelligently made. (Ibid.) A factor for consideration in that regard is whether the defendant was represented by counsel and whether the record contains “references to discussions between counsel and defendant.” (People v. Daniels, supra, 3 Cal.5th at pp. 991, 996.) That is because “[c]ounsel plays a crucial part in transmitting information to the client.” (Id. at p. 996.)
Here, defendant, through her сounsel, advised the trial court that defendant wanted to enter a jury trial waiver. The jury waiver discussion was thus broached and advanced by defendant, indicating she was actively involved in her jury waiver. Defense counsel affirmatively stated that he had discussed with defendant “the difference between a jury trial and a trial by court.” Defendant did not dispute that statement. The trial court then engaged in a colloquy prior to accepting the waiver. The trial court confirmed defendant understood the main difference between a jury trial and a bench trial, i.e., the number of individuals who ”sit in judgment.” (Italics added.) The trial court also confirmed that, as stated by defense counsel, defendant had previously spoken to her attorney “about the difference between a court trial and a jury trial.” We conclude the record demonstrates
Relying on Jones, defendant argues her jury waiver was constitutionally infirm because the trial court failed to mention two ”features of a jury trial” (i.е., “that [defendant could] participate in jury selection through counsel, and that the twelve jurors must unanimously agree to render a verdict“) and defendant had minimal prior experience with the criminal justice system. (Citing People v. Jones, supra, 26 Cal.App.5th at p. 420.) We аre not persuaded. While the colloquy between the trial court and defendant did not expressly include each of the advisory guidelines discussed by our Supreme Court in Sivongxxay, “a trial court‘s adaptation of or departurе from the recommended colloquy in an individual case will not necessarily render an ensuing jury waiver invalid.” (Sivongxxay, supra, 3 Cal.5th at p. 170id. at p. 168.)
Jones is further distinguishable. Unlike in the present case, the prosecutor in Jones handled the entire advisement, while the court had no role. (People v. Jones, supra, 26 Cal.App.5th at p. 428.) The colloquy between the defendant and the prosecutor consisted of two questions: whether the defendant understood his right to a jury trial, and whether he agreed to have the judge decide the case. (Ibid.) In contrast, here: the prosecutor played no role in the advisement and agreed only to the waiver; defendant agreed that she and her attorney had already discussed the difference between a jury trial and a court trial; and the court confirmed that defendant understood the main difference between the two types of trials by specifically indicating that a jury trial has 12 individuals sitting in judgment, whereas a court trial has one. The only similarity
We also find no merit in defendant‘s reliance on footnote 12 in Jones. In that footnote, the court addressed the defendant‘s argument that “she did not make a knowing waiver because she was not advised that the trial court would hear her codefendant[‘s] . . . statements that incriminated her, whereas in a jury trial the jury would not.” (People v. Jones, supra, 26 Cal.App.5th at p. 435 & fn. 12.) The court noted the defendant was referring to the rule that a ” ‘nоntestifying codefendant‘s extrajudicial statement that incriminates the other defendant is inadmissible at a joint trial.’ ” (Id. at p. 435, fn. 12, quoting People v. Penunuri (2018) 5 Cal.5th 126, 154.) The court explained that, because Jones‘s waiver was not knowingly and intelligently made, it did not need to “reach whether a defendant‘s lack of knowledge about this type of consequence should be considered as part of the totality of the circumstances affecting the validity of a jury trial waiver.” (Jones, at p. 435, fn. 12.)
Defendant asserts the footnote in Jones establishes that she could not have entered a knowing and intelligent jury waiver because, like the defendant in Jones, she was not advised that the trial court would hear her codefendant‘s statement(s) that incriminated her while a jury would not have heаrd such statements. The footnote stands for no such proposition.
First, the Jones court did not consider whether “a defendant‘s lack of knowledge about this type of consequence should be considered as part of the totality of the circumstances affecting the validity of a jury trial waiver.” (People v. Jones, supra, 26 Cal.App.5th at p. 435, fn. 12.) Second, the rule discussed in Jones has no application under the facts of this case. This case did not involve a joint trial or the admissibility of a
For the foregoing reasons, we conclude the trial court properly found that defendant‘s jury waiver was knowingly, voluntarily, and intelligently made.
DISPOSITION
The judgment is affirmed.
/s/
Robie, Acting P. J.
We concur:
/s/
Earl, J.
/s/
Boulware Eurie, J.