Case Information
*1 Filed 6/19/17
IN THE SUPREME COURT OF CALIFORNIA THE PEOPLE, )
)
Plaintiff and Respondent, )
) S078895 v. )
)
VAENE SIVONGXXAY, )
) Fresno County Defendant and Appellant. ) Super. Ct. No. F97590200-2 ____________________________________)
Following a bench trial, defendant and appellant Vaene Sivongxxay was convicted of one count of first degree murder (Pen. Code, § 187), 1 13 counts of robbery (§§ 211, 212.5), and two counts of attempted robbery (§§ 664, 211, 212.5). The trial court found true the special circumstance allegation that defendant committed the murder during the commission of a robbery. (§ 190.2, subd. (a)(17)(A).) At the conclusion of the penalty phase bench trial, the court imposed a verdict of death.
This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) We affirm the judgment in its entirety.
I. FACTS Defendant was tried jointly with codefendant Oday Mounsaveng. Both defendants were tried by a judge sitting without a jury.
1 All subsequent statutory references are to the Penal Code.
SEE CONCURRING & DISSENTING OPINIONS *2 A. Guilt Phase
1. Prosecution Evidence Defendant and Mounsaveng committed a series of robberies in Fresno between July and December 1996.
a. Thanh Tin Jewelry Attempted Robbery On July 31, 1996, Mounsaveng walked into the Thanh Tin Jewelry store, asked to examine a gold chain, and then left. He returned with defendant about an hour later. The men looked around for a long time without buying anything. Liem Phu Huynh, the owner of the jewelry store, asked the men why they were taking so long. Mounsaveng and defendant claimed they were brothers and were waiting for their sister to arrive. Eventually, they left.
When defendant and Mounsaveng returned to the store later that afternoon, Huynh was working in a back room, and his wife Phung Ngoc Ho was behind the sales counter. After asking to examine several items, Mounsaveng pulled a handgun out of his waistband, grabbed Ho by the collar, and pointed the gun at her. Huynh, who was watching from the back room, set off an alarm.
Mounsaveng and defendant fled.
b. First JMP Mini-Mart Robbery On the afternoon of August 16, 1996, Bobbie Her was working behind the counter at her parents‘ convenience store, JMP Mini-Mart. Mounsaveng entered and asked whether the store cashed checks. When Bobbie answered that it did, Mounsaveng left. He eventually returned with defendant, and the two men milled about the store. Bobbie‘s father Xeng Wang Her arrived and began restocking drinks in the store‘s refrigerator case. Defendant walked up to Xeng, pointed a handgun at him, and forced him to walk toward the cash register. Defendant then forced Xeng to lie down and kicked him in the back of the head. Meanwhile, Mounsaveng jumped over the counter and forced Bobbie to open the cash register. *3 Mounsaveng and defendant took all of the money in the store, ripped a cordless phone off the wall, and then fled in a blue pickup truck.
c. Phnom Penh Jewelry Robbery On October 10, 1996, defendant entered the Phnom Penh Jewelry store. Mounsaveng followed a few minutes later and asked the store‘s owner, Kee Meng Suy, to repair a Buddha pendant. Suy recognized Mounsaveng because he had brought in the same pendant for repair a few months before. Suy took the pendant to his workbench in the store‘s back room. While Suy was working, his wife Suntary Heng showed Mounsaveng some other pieces of jewelry. Suy finished repairing the pendant and handed it back to Mounsaveng, who said he was not satisfied with the work and asked Suy to do it again. Suy returned to his work bench. Heng then took the couple‘s two young children, who were at the store that day, into the back room to get some food.
At that point, defendant and Mounsaveng forced their way into the back room, pointed guns at Suy‘s head, and told him to ―stay still.‖ Defendant and Mounsaveng punched Suy, pushed him to the floor, and used tape and an extension cord to bind his limbs and cover his mouth and eyes. Both men then punched, kicked, and stomped Suy as Heng and the couple‘s two children watched. Mounsaveng demanded Suy‘s gun and the videotape from the store‘s security camera, but Heng explained he had no gun and the camera was broken. Eventually, Suy lost consciousness. As Mounsaveng and defendant cleared out the store‘s safe and the jewelry in its display cases, Heng activated a silent alarm. The two men fled in a light blue Honda.
d. Second JMP Mini-Mart Robbery Mounsaveng and defendant returned to the JMP Mini-Mart on December 14, 1996. Xeng Wang Her was working in the store with his wife, *4 Phayvane Boulome, and there were five or six customers inside. Upon entering the store, both Mounsaveng and defendant pulled out guns, told the customers to lie on the ground, and demanded that Xeng and Boulome open the cash register. Mounsaveng took money from the cash register and also picked up Xeng‘s gun, which was underneath the counter. Mounsaveng then forced Xeng into a back room, where Mounsaveng took cigarettes and change. After that, Mounsaveng grabbed Boulome and demanded that she open a second cash register, but she explained it was broken. Before leaving, Mounsaveng and defendant took money and jewelry from the customers at gunpoint. In the course of robbing the customers, defendant kicked an elderly woman in the mouth. One customer recalled seeing an unoccupied white car outside the store with its engine running.
e. Sean Hong Jewelry Robbery and Murder In November 1996, defendant sold some rings and other items to the Sean Hong Jewelry store. He also left a Buddha pendant to be repaired.
On December 19, 1996, three days after the second JMP Mini-Mart robbery, Mounsaveng and defendant paid a visit to the Sean Hong store. Seak Ang Hor, the wife of store owner Henry Song, was working behind the sales counter. Hor told defendant that his Buddha pendant was ready to be picked up, but he said he did not have the money to pay for it. Mounsaveng asked to see the pendant anyway. Song retrieved the pendant from a safe in the store‘s back room and came out to show it to Mounsaveng and defendant.
After the men were finished looking at the pendant, Song started walking toward the back room. Mounsaveng pulled out a gun and screamed ―give the money and gold.‖ Defendant also brandished a gun. Defendant and Mounsaveng forced Song and Hor into the back room; Mounsaveng then left and closed the door. Defendant demanded that Hor open the safe, but she refused. Song *5 attempted to grab defendant‘s gun, and the two men engaged in a hand-to-hand struggle. Mounsaveng returned to the back room and beat Song on the head with his gun. Hor pressed a silent alarm button, prompting Mounsaveng to pull her out of the back room. Once in the front area of the store, Hor kicked the wall in an effort to alert the business owner next door. At some point, she heard Mounsaveng say ―let‘s go.‖ Defendant forced Hor to give him cash from her purse. He also smashed a display case and took jewelry.
After Mounsaveng and defendant left, Hor found her husband lying on the floor of the back room with blood coming out of his mouth. Song died within the hour. The cause of death was perforation of the heart and lungs from three gunshot wounds.
Hor did not see either of the robbers shoot her husband, nor did she recall hearing the gunshots. However, the robbery was partially captured on the store‘s video camera. A Fresno Police Department detective testified that in reviewing a video of the incident, he could identify a moment when several gunshots were audible. At that moment, defendant and Song were not in the camera‘s frame, but Mounsaveng and Hor were. Mounsaveng was pointing his gun toward the location where defendant and Song were fighting. After the shots were fired, Mounsaveng moved out of the frame and toward the back room, where defendant and Song had been fighting. Ballistics evidence showed that all of the bullets were fired from the same gun. In the video, one of the defendants is heard to say, ―shoot, shoot.‖
Defendant was arrested on February 12, 1997, and agreed to be interviewed by a Fresno Police Department detective. He initially denied involvement in the robberies. However, after the detective showed him stills from the Sean Hong Jewelry store‘s video camera, defendant admitted he took part in the robbery. At first, he claimed Mounsaveng was the one who shot Henry Song. Defendant *6 described his struggle with Song and claimed that Song hit him on the head with a chair. But when the detective asked how the struggle ended, defendant confessed that he, not Mounsaveng, had shot Song. He apologized for lying at the outset of the interview and said he was sorry to Song‘s family for what he had done. Defendant also told the detective that Mounsaveng forced him to rob the Sean Hong Jewelry store and that he was so high on cocaine that day he could hardly think.
2. Defense Evidence A toxicologist who screened defendant the day after his arrest testified that his blood tested positive for alcohol and cocaine. The manager of an apartment building located near the JMP Mini-Mart (Mini-Mart) testified that on December 14, 1996, the day of the second Mini-Mart robbery, he saw two teenagers running down the street, one of whom had a ponytail. Police later found a stolen white Toyota Camry in the parking lot of the apartment building. An officer who tested latent fingerprints from the Thanh Tin Jewelry store and the second Mini- Mart robbery testified that none of the prints matched defendant or Mounsaveng. A different officer testified that none of the witnesses to the second Mini-Mart robbery mentioned in their initial interviews that the robbers had tattoos. Finally, defense counsel introduced records indicating that defendant was in prison in Washington State from 1993 until February 1996, which countered Mounsaveng‘s allegation that defendant was among a group of men who threatened him in December 1995 and January 1996. In closing argument, defense counsel challenged the eyewitness identifications of his client, suggested that defendant perceived himself to be under imminent threat during his struggle with Song, and asserted that defendant may have been under the influence of drugs or coerced by Mounsaveng.
Mounsaveng admitted his role in the robberies but claimed he acted under duress.
3. Trial Court’s Findings The trial court found both defendants guilty of first degree murder. The court also found ―beyond a reasonable doubt that the special circumstance against each defendant ha[d] been proven,‖ stating that ―[t]here is no doubt that this murder was committed during the commission of the robbery‖ of the Sean Hong Jewelry store. In addition, the court found both defendants guilty of 13 counts of robbery and two counts of attempted robbery, and it found insufficient evidence to support either defendant‘s duress defense.
B. Penalty Phase
1. Aggravating Evidence
a. Victim Impact Evidence Seak Ang Hor, Henry Song‘s widow, talked about her husband‘s life and described how his murder had affected her. Hor and Song had been married for about 30 years and had five children. The family emigrated to the United States in 1981 to escape conflict in Cambodia. At the time of the murder, Song had owned the Sean Hong Jewelry store for about four years. The family‘s entire life savings was invested in the business, and they had no insurance. Hor closed the jewelry store after her husband‘s murder.
Two of Song‘s adult children, David and Lilly, also testified. David described cleaning up the store after the murder. He also testified that everyone in the family now had to work harder to support their mother and youngest brother. Lilly, who had renewed her driver‘s license on the day of the murder, said that ―every time I use my license, it reminds me . . . of the pain, that he was killed.‖ She also had to drop out of college because she could not concentrate.
b. Prior Criminal Activity The prosecution introduced evidence of defendant‘s prior criminal activity involving the use of force. (§ 190.3, factor (b).) On September 8, 1992, defendant and several accomplices broke into a home in Kennewick, Washington, and robbed the inhabitants at gunpoint. Defendant was convicted of first degree robbery and sentenced to 55 months in prison in Washington State. However, he escaped from custody on February 28, 1996.
Defendant‘s girlfriend S. K., with whom defendant lived during the 1996 Fresno robberies, testified that he was violent and abusive.
On September 5, 1996, Fresno police pulled over a vehicle in which defendant was a passenger. A handgun was found inside the car. The vehicle‘s driver testified that an Asian man carrying a gun had offered him money for a ride and that as the police pulled them over, the Asian man offered him more money to say that the gun was his. However, the driver could not say for sure whether that man was defendant.
On January 17, 1997, Ty K., the brother of defendant‘s girlfriend, called the police because defendant was acting in a drunk and belligerent manner. Police arrested defendant for unauthorized possession of a firearm, possession of a controlled substance, and vandalism.
When awaiting trial for the charged crimes, defendant was detained at the Fresno County Jail. On March 9, 1997, a correctional officer told defendant that he was being placed in isolation due to a fight with another inmate. Defendant became hostile and told the officer, ―I see you all the time on the streets, I‘ll remember you.‖ On May 15, 1997, another correctional officer found among defendant‘s possessions a piece of metal she described as a ―shank.‖
c. Prior Felony Convictions The prosecution introduced conviction records showing that defendant had 1992 and 1993 Oregon felony convictions for unauthorized use of a vehicle as well as a 1993 Washington State conviction for first degree armed robbery. (§ 190.3, factor (c).)
2. Mitigating Evidence Defendant testified on his own behalf. He was born in Laos, but his family was forced to flee the country after the Communists came to power because his father and brother had fought alongside the United States Army. The family resettled in a refugee camp in Thailand. Defendant‘s family was poor, and he received no formal education. He was conscripted into the Thai army for five years. Aside from his stint in the army, defendant lived in the refugee camp until he came to the United States in 1987. When in prison for a prior offense, defendant referred himself to a chemical dependency program.
In his penalty phase closing argument, defendant‘s counsel emphasized his client‘s difficult upbringing, his confession and expressions of remorse, and his drug addiction, as well as guilt phase testimony suggesting that defendant shot Song in the course of a struggle for defendant‘s gun.
3. Sentencing Before announcing its sentencing decisions, the trial court indicated it had considered, in mitigation, both defendants‘ difficult backgrounds; defendant‘s drug addiction and his ―request for help with chemical dependence‖; his confession and expressions of remorse; and the evidence that he may have ―perceived necessity and self-defense‖ in shooting Song due to the store owner‘s resistance.
In aggravation, the trial court found that all of the alleged crimes of violence and the prior felony convictions had been proved beyond a reasonable doubt. The court observed that ―defendant has shown a long pattern of violent crime against many, many victims.‖ The court cited defendant‘s criminal history; the violence he exhibited in the charged offenses, including the killing of Henry Song; and defendant‘s conduct in custody since his arrest.
The trial court concluded that ―[r]egarding Mr. Sivongxxay, as unpleasant as it is, I find the death sentence to be justified and appropriate.‖
II. DISCUSSION In his appeal, defendant challenges the validity of his jury waiver and the trial court‘s consideration of certain evidence at the penalty phase. He also raises several challenges to the constitutionality of the death penalty.
A. Guilt Phase
As previously discussed, the guilt and penalty phases of defendant‘s trial proceeded before a court sitting without a jury. Defendant asserts that he did not enter a valid waiver of his right to a jury trial, in derogation of his rights under the state and federal Constitutions and state statutory law.
1. Waiver of a Jury Trial Both defendant and Mounsaveng were present at the pretrial waiver hearing and were represented by counsel. The colloquy proceeded as follows:
―THE COURT: Okay. Oday Mounsaveng and Vaene Sivongxxay. ―MS. DETJEN: Jennifer Detjen, appearing for the People.
―MR. PETILLA: Rudy Petilla, for Mr. Sivongxxay.
―MR. KINNEY: Ernest Kinney, present in court, for Tony Vong [an alias of Oday Mounsaveng].
―THE COURT: This matter is currently set for trial. What do we have, the 11th?
―MS. DETJEN: That‘s good.
―THE COURT: January 11th. Status of the case?
―MR. KINNEY: Your Honor, I believe we‘re ready to proceed on the 11th. I‘ve talked with cocounsel and the DA, and for a variety of reasons — we‘re prepared to go. We‘re prepared to — waive a jury trial and have a judge trial in this death penalty case.
―MR. PETILLA: That‘s correct, Your Honor, and I have, of course — would acknowledge that this particular court would still be hearing the case.
―THE COURT: Yes, it‘s been assigned to me for all purposes. Ms. Detjen, People‘s position?
―MS. DETJEN: People are ready to waive a jury trial in this case. ―THE COURT: All right. And I think the record should show — since this is a capital case — that, and the record is void of any in-chambers‘ [ sic ] discussions on this. We haven‘t had any.
―MS. DETJEN: That‘s correct.
―MR. PETILLA: Yes.
―MR. KINNEY: That‘s correct.
―THE COURT: Mr. Mounsaveng, Mr. Sivongxxay, you each have a right to a trial, either by a jury of 12 people selected from this community, through a process that you would engage in with your attorneys, the district attorney and the Court, or a trial in front of a judge, acting alone without a jury. [¶] The burden of proof remains the same. The district attorney has the burden to go forth with evidence sufficient to prove your guilt beyond a reasonable doubt. Then, and only then, would we get to a penalty phase. *12 [¶] In a court trial, I would hear the evidence. I, alone, would make the decision on whether that evidence was sufficient to prove your guilt beyond a reasonable doubt. [¶] In the event I made such a finding, as to either or both of you, we would then proceed to a penalty phase, where the district attorney would present aggravation evidence. Through your — you, through your attorney, would have a right to present mitigation evidence, and it would fall upon me to make the decision as to the appropriate punishment, which could result in a death penalty sentence. [¶] Do you give up your right to a jury trial and agree that this Court, alone, will make those decisions, Mr. Mounsaveng?
―THE DEFENDANT MOUNSAVENG: Yes.
―THE COURT: Mr. Sivongxxay?
―THE DEFENDANT SIVONGXXAY: Yes.
―THE COURT: Ms. Detjen?
―MS. DETJEN: Yes, Your Honor, the People waive the jury trial. ―THE COURT: All right. We‘ll show a jury waiver on all issues, confirm the matter for January the 11th. We‘ll notify the jury commissioner that they do not need to send out any summonses, and we will start with the pretrial matters on that day. . . .‖
There was no further discussion of jury waiver throughout the remainder of the trial proceedings.
Under the federal Constitution and our state Constitution, a defendant in a
criminal prosecution has a right to a jury trial. (U.S. Const., amend. VI; Cal.
Const., art. I, § 16;
People v. Weaver
(2012)
Defendant acknowledges that he expressly stated on the record that he gave up his right to a jury trial, and he makes no claim that his purported waiver was coerced or otherwise involuntary. Instead, he asserts that his decision to waive his jury trial right was not knowing and intelligent. Specifically, he contends that as a Laotian refugee with no formal education and limited command of the English language, he would not have understood what the right to trial by jury entailed unless the trial court or counsel explained it to him. Defendant points out that the trial court‘s waiver colloquy did not explain that a jury must be impartial, that its verdict must be unanimous, or that the trial court must declare a mistrial if the jury fails to reach a verdict. The trial court also did not ask any questions confirming that defendant understood how a jury works, or that defendant had discussed the jury waiver with his counsel.
Our precedent has not mandated any specific method for determining
whether a defendant has made a knowing and intelligent waiver of a jury trial in
favor of a bench trial. We instead examine the totality of the circumstances. (See
Adams
,
Here, we conclude that defendant entered a knowing and intelligent jury
waiver. Although defendant is a Laotian refugee with no formal education and
limited English proficiency, he was represented by counsel and assisted by a
translator throughout the trial. The defense initiated the request for a court trial.
In response, the trial court advised defendant that he had a right to a jury trial, that
a jury consists of 12 people from the community, that he would have the right to
participate in the selection of the jury, and that waiver of the right to a jury would
mean the judge alone would determine his guilt or innocence and any resulting
punishment. After these advisements, defendant answered ―Yes‖ when asked
whether he wished to ―give up [his] right to a jury trial and agree that this Court,
alone, will make those decisions.‖ The trial court then observed that the waiver
applied to ―all issues‖ at trial.
2
Additionally, defendant had prior experience with
the criminal justice system, having pleaded guilty to two prior offenses in Oregon
and one in Washington State. In 1993, in connection with his guilty plea in
Washington, he signed a waiver stating that he ―fully underst[ood]‖ his right to a
jury trial. (See
Parke v. Raley
(1992)
prior experience with the criminal justice system [is] relevant to the question
whether he knowingly waived constitutional rights‖]);
People v. Langdon
(1959)
Defendant points out that the trial court did not mention that a jury must be
impartial, and must also be unanimous in order to render a verdict. But ―[t]he
United States Supreme Court has never held that a defendant, when waiving the
right to a jury, constitutionally is entitled to be canvassed by the trial court, let
alone to require a specifically formulated canvass‖ (
Rizzo
, 31 A.3d at
p. 1116; see also
U.S. v. Cochran
(9th Cir. 1985)
At the same time, we use this opportunity to emphasize the value of a
robust oral colloquy in evincing a knowing, intelligent, and voluntary waiver of a
jury trial. Although our case law has eschewed any rigid formula or particular
form of words that a trial court must use in taking a jury waiver, we observe that
many other courts have offered guidance regarding important components of the
waiver colloquy. (See, e.g.,
U.S. v. Delgado
(7th Cir. 1981)
Robertson
(10th Cir. 1995)
Consistent with these decisions, we offer 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. Going forward, we recommend that trial courts advise a defendant of the basic mechanics of a jury trial 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 his or her counsel may participate in jury selection; (3) all 12 jurors must unanimously agree in order to render a verdict; and (4) if a defendant waives the right to a jury trial, a judge alone will decide his or her guilt or innocence. We also recommend that the trial judge take additional steps as appropriate to ensure, on the record, that the defendant comprehends what the jury trial right entails. *18 A trial judge may do so in any number of ways — among them, by asking whether the defendant had an adequate opportunity to discuss the decision with his or her attorney, by asking whether counsel explained to the defendant the fundamental differences between a jury trial and a bench trial, or by asking the defendant directly if he or she understands or has any questions about the right being waived. Ultimately, a court must consider the defendant‘s individual circumstances and exercise judgment in deciding how best to ensure that a particular defendant who purports to waive a jury trial does so knowingly and intelligently.
This guidance, of course, pertains only to waiver of a jury trial in favor of a
bench trial. Furthermore, we emphasize that our guidance is not intended to limit
trial courts to a narrow or rigid colloquy. We agree with the Connecticut Supreme
Court that ultimately, a ― ‗defendant‘s rights are not protected only by adhering to
a predetermined ritualistic form of making the record. Matters of reality, and not
mere ritual, should be controlling.‘ ‖ (
Rizzo
,
supra
,
2. Jury Waiver for the Special Circumstance Allegation
Defendant also contends that he did not validly waive his right to a jury
trial with respect to the special circumstance allegation. He observes that ―the trial
court made no mention of the special circumstance determination or the right to a
jury trial thereon,‖ and that defense counsel never stated on the record that he had
discussed the special circumstance determination with his client. Defendant
asserts that he therefore cannot be found to have entered a separate waiver of a
jury trial for this allegation, as is required under
People v. Memro
(1985)
Defendant‘s argument merges what are in fact two separate questions: whether his jury waiver was knowing and intelligent regarding the special circumstance allegation, and thereby met constitutional standards; and whether state law statutory error occurred under Memro , due to a failure to satisfy that decision‘s requirement for complying with certain provisions of the Penal Code. We find that there was a knowing and intelligent waiver regarding the special circumstance allegation, but agree with defendant that there was error under Memro . On the record before us, however, this error was harmless.
4 Given the importance of this issue, we note that the Judicial Council of California may choose to refer the question to its criminal law committee to study and propose measures to assist trial courts in ensuring the validity of jury trial waivers.
a. Adequacy of the Jury Waiver for the Special Circumstance Allegation Under the Federal and State Constitutions A defendant who has been convicted of first degree murder is eligible for the death penalty only if the prosecution has charged, and the trier of fact has found true, one or more statutorily enumerated special-circumstance allegations. (§ 190.2, subd. (a).) ―Whenever special circumstances . . . are alleged and the trier of fact finds the defendant guilty of first degree murder, the trier of fact shall also make a special finding on the truth of each alleged special circumstance.‖ (§ 190.4, subd. (a).) With the exception of a prior-murder special-circumstance allegation (§ 190.2, subd. (a)(2)), which requires a separate proceeding, ―[i]f the trier of fact finds the defendant guilty of first degree murder, it shall at the same time determine the truth of all special circumstances charged . . . .‖ (§ 190.1, subd. (a).)
Defendant asserts that there was no knowing and intelligent waiver of his right to a jury trial concerning the robbery-murder special circumstance alleged against him. He does not argue that he was unaware of the special circumstance, or that he did not appreciate that he could receive the death penalty if it were found true. Rather, he emphasizes that the trial court never explicitly told him that he had a right to a jury trial for the special circumstance allegation. Defendant argues that this omission, viewed in the context of the record as a whole, means that he cannot be understood to have entered a valid waiver of his right to a jury trial for this allegation.
Defendant demands more than the federal and state Constitutions require
for a valid waiver of the jury trial right. As discussed, a knowing and intelligent
jury waiver requires an appreciation of the
nature
of the jury trial right and the
consequences
of forgoing this right. (
Collins
,
6 The relevant section of the LaFave treatise further provides: ―When a jury trial of guilt and enhancements are separated, a defendant convicted by jury at the earlier phase should have an opportunity to waive a jury for the enhancement phase.‖ (6 LaFave, , § 22.1(h), p. 48.) In this case, of course, there is no issue presented with regard to whether a defendant who has invoked a jury trial as to guilt or innocence may waive a jury with regard to a charged special-circumstance allegation.
Furthermore, the applicable California statutes provide for a separate trial of a special-circumstance allegation only when a prior murder special circumstance is charged (§ 190.1, subd.(b)); a separate trial is not provided for any other special-circumstance allegation, including a robbery-murder
(Footnote continued on next page.) *22 defendant‘s general waiver of a jury trial was knowing and intelligent is sufficient in itself to defeat defendant‘s contention that his waiver did not meet constitutional standards with regard to the special circumstance allegation. 7 (Footnote continued from previous page.)
special-circumstance allegation as involved in this case. (§ 190.1, subd. (a).) Even in an instance in which a defendant who has waived a jury as to guilt or innocence chooses to invoke the right to a jury with regard to such a special-circumstance allegation ― a circumstance that, albeit theoretically possible, to our knowledge has not ever occurred in practice― the trial of the special-circumstance allegation need not be separated from the guilt trial. In such a case, after the presentation of the relevant evidence before the court and the jury concurrently in a single trial, the jury can be required to return a verdict on the special-circumstance allegation in the event the trial court finds the defendant guilty of the charged murder offense.
7
The general rule recognized in
Berutko
presents no conflict with the results
reached in
State v. Schofield
(Me. 2005)
The defendants in both
Schofield
,
supra
,
Each court rejected the state‘s position.
Williams
,
(Footnote continued on next page.) *23 Defendant‘s argument would fail even if we were to assume that — contrary to the conventional rule — a constitutionally sufficient general jury waiver does not necessarily incorporate a knowing and intelligent waiver of a jury trial for a special circumstance allegation in a capital case. Here, the specific advisements the trial court provided to defendant before taking his waiver, together with the other surrounding circumstances, confirm that defendant knowingly and intelligently relinquished his right to a jury trial for this allegation. 8 (Footnote continued from previous page.)
dangerous offender sentence, but he also did not know of the possibility of such a
sentence.‖ (
Id
., at p. 1153.)
Schofield
,
Assuming, without deciding, that
Schofield
,
supra
,
(Footnote continued on next page.) *24 To review, after each defendant, through counsel, stated his desire to waive jury trial, the trial judge explained to defendant that he had ―a right to a trial, either by a jury . . . or a trial by a judge.‖ The judge described the trial as incorporating two phases. In the first phase, the judge explained, the district attorney bore the burden of introducing evidence sufficient to prove guilt beyond a reasonable doubt, and ―[t]hen, and only then, would we get to a penalty phase.‖ The judge also explained that in a court trial he alone ―would make the decision on whether that evidence was sufficient to prove [defendant‘s] guilt beyond a reasonable doubt,‖ and ―In the event [he] made such a finding,‖ the case would proceed to a penalty phase, at which time it would ―fall upon [the judge] to make the decision as to the appropriate punishment, which could result in a death penalty sentence.‖ The ultimate question posed to defendant was ―Do you give up your right to a jury trial and agree that this Court, alone, will make those decisions . . . ?‖ After defendant answered in the affirmative, the trial court observed that the waiver applied to ―all issues‖ in the trial.
Viewed together with all other relevant circumstances, this colloquy demonstrates beyond any dispute that defendant‘s waiver incorporated a knowing (Footnote continued from previous page.)
also connote a knowing and intelligent waiver. But ―[a] waiver colloquy is a
procedural device; it is not a constitutional end or a constitutional ‗right.‘ ‖
(
Commonwealth v. Mallory
(Pa. 2008)
Our finding of a knowing and intelligent waiver of a jury trial for the
special circumstance allegation finds support in our decision in
Diaz
,
supra
,
Diaz
,
The dissenting justices apparently read the trial judge‘s advisements differently, perceiving the failure to expressly refer to the special circumstance allegation as somehow implicitly excluding that allegation from a counseled and otherwise comprehensive jury waiver. (See conc. & dis. opn. of Liu, J., post , at pp. 5-10; conc. & dis. opn. of Cuéllar, J., post , at pp. 6-8.) We respectfully disagree with this interpretation of the colloquy, for the reasons we have previously given. 9 The dissenting justices‘ position boils down to the proposition 9 The dissenting justices‘ misreading of the colloquy saturates the remainder of their analysis, causing it to go astray in numerous respects.
For example, the error informs Justice Cuéllar‘s inapt analogy of this matter to two out-of-state decisions involving deficient penalty-phase waivers in capital trials. (Conc. & dis. opn. of Cuéllar, J., post , at pp. 9-11.) In one of these
(Footnote continued on next page.)
*27
that the judge was constitutionally bound to utter the phrase ―special
circumstance‖ at some point in the waiver colloquy with defendant, even if the
judge never went on to explain what this phrase meant. But our waiver
jurisprudence rejects the notion that a knowing and intelligent waiver hinges on
the recitation of a ― ‗talismanic phrase.‘ ‖ (
Howard
,
b. Statutory Issues with Jury Waiver / Memro Error Defendant‘s related attack on his jury waiver, as it pertains to the special circumstance allegation, involves our decision in Memro .
Memro
,
supra
,
decisions, the judge entered a jury waiver for
both
phases of a capital trial, even
though the record suggested that the defendant sought to waive a jury for the guilt
phase only. (
People v. Brown
(Ill. 1996)
guilt and the truth of any special circumstance allegations. The relevant text within the latter provision states, however, that ―[i]f the defendant was convicted by the court sitting without a jury, the trier of fact [on the special circumstance allegation(s)] shall be a jury unless a jury is waived by the defendant and by the people, in which case the trier of fact shall be the court.‖ (§ 190.4, subd. (a).) Memro construed these statutes (as enacted by the Legislature in 1977, see Stats. 1977, ch. 316, §§ 7, 12, pp. 1257, 1261), read together, as requiring a ―separate, personal waiver‖ of the right to a jury for a special circumstance allegation, above and beyond the standard guilt phase and penalty phase waiver. ( Memro , at p. 704.)
We have since clarified that the ―separate waiver‖ required under
Memro
does not require a second enunciated waiver by the defendant. In
Diaz
, this
court‘s first case applying
Memro
, we explained that under
Memro
, ―[t]he waiver
must be made by the defendant personally, and must be ‗separate‘ — that is, if the
defendant is to be deemed to have waived the right to jury trial on both guilt and
special circumstances, the record must show that the defendant is aware that the
waiver applies to each of these aspects of trial.‖ (
Diaz
,
The
Memro
rule was construed similarly in
People v. Wrest
(1992)
The Attorney General urges us to construe the waiver colloquy here as
sufficient under
Memro
. The Attorney General‘s argument finds some support in
our statement in
Wrest
,
supra
,
special circumstance allegation could be equated with a determination that
defendant‘s waiver covered the charge, in the sense that it encompassed a knowing
and intelligent waiver of a jury trial for the allegation. We nevertheless conclude
the colloquy fell short of what the applicable statutes, as construed in
Memro
,
require. There was no specific reference in the waiver colloquy to the need to
adjudicate the special circumstance allegation; the term ―special circumstance‖
was never mentioned at all. Although such precision is not required for a
knowing, voluntary, and intelligent waiver, we believe that
Memro
‘s requirement
of a ―separate waiver,‖ even as that rule was subsequently clarified in
Diaz
and
Wrest
, demands at least that much specificity. Although we recognize that the line
we draw is a narrow one, we hold that defendant‘s purported waiver as to the
special circumstance determination was deficient, as a matter of state law, under
Memro
,
Having identified Memro error, we now consider whether this error is amenable to harmless error review or instead requires automatic reversal.
States are free to apply their own harmless error rules to errors of state law.
(
Cooper v. California
(1967)
Defendant argues that the
Watson
standard does not apply here, and that the
error below should instead be regarded as structural, or reversible per se. We
disagree. Categorization of an error as structural represents ―the exception and not
the rule.‖ (
Rose v. Clark
(1986)
Louisiana
(1993)
The mistake that occurred here is not such an error. At the outset, we observe that defendant has not directed our attention to any language in section 190.1, subdivision (a), in section 190.4, subdivision (a), or in any legislative or ballot materials relating to these statutes that indicate the Legislature (in enacting the 1977 versions of these statutes) or the electorate (in repealing and reenacting these statutes as part of a 1978 initiative (Prop. 7, §§ 3-4, 9-10, as approved by voters, Gen. Elec., Nov. 7, 1978)) saw a structural error as occurring when a trial court, in taking a knowing and intelligent waiver of the jury trial right, fails to explicitly reference the special circumstance allegation as encompassed within the waiver, or otherwise obtain a separate jury waiver for this allegation. 11
11 Justice Cuéllar extracts a rule of per se reversal from language within section 190.4, subdivision (a), providing that ―the trier of fact [for a special circumstance allegation] shall be a jury unless a jury is waived by the defendant and by the people, in which case the trier of fact shall be the court.‖ He asserts that this phrasing connotes the Legislature‘s and electorate‘s intent that a deviation from the specified procedure amounts to a structural error. (Conc. & dis. opn. of Cuéllar, J., post , at pp. 20-21.)
But this text, which closely resembles the statutory phrasing involved in
Berutko supra
,
Justice Cuéllar‘s opinion reaches its conclusion only by assuming that defendant could not have knowingly and intelligently waived a jury trial as a matter of constitutional law absent compliance with the specific separate waiver that Memro determined was required as matter of statutory law. The opinion thus improperly conflates state statutory procedures with constitutional standards, an approach that, as we shall discuss post , has been consistently rejected.
Nor does the analysis in
Memro
itself support treating the error here as
structural.
Memro
determined that another error required reversal and a remand of the
matter for additional proceedings. (
Memro
,
supra
,
The type of
Memro
error involved here is, in fact, quite different from those
mistakes that are regarded as structural. This error did ―not
necessarily
render
[defendant‘s] criminal trial fundamentally unfair or an unreliable vehicle for
determining guilt or innocence.‖ (
Neder v. United States
,
supra
,
Defendant characterizes such an inquiry as unduly speculative. But we have
conducted comparable evaluations of the record in other contexts, assessing whether a
defendant would have made a different decision absent an error in advisement. For
example, we have structured examinations of prejudice around whether a criminal
defendant still would have entered a guilty or no contest plea had the judge provided
an adequate advisement regarding the plea‘s immigration consequences (
People v.
*34
Martinez
(2013)
Martinez
,
supra
,
This approach recognizes that a defendant may accept or reject a plea for what
might objectively appear to be unreasonable motives, which must be respected as
reflections of the defendant‘s autonomy. Nevertheless, as befits an error under state
statutory law alone, review occurs under the ―reasonably probable‖ standard of
Watson
,
supra
,
Our decisions in cases such as
Martinez
and
McClellan
manifest the viability
of the form of harmless error analysis that applies here. Similarly pertinent is
People
v. Sanchez
(1995)
have waived a jury trial absent the mistake. The defendant in
Sanchez
received a
death sentence after he waived a jury trial for the guilt phase of a capital case, opting
instead for the court to decide guilt on the basis of preliminary hearing transcripts.
(
Id
., at pp. 17, 23-27.) On appeal, the defendant argued that the trial court committed
prejudicial error because in taking the defendant‘s waiver of a jury trial for the guilt
phase, it failed to comply with a state law requirement that the defendant be advised
of the potential maximum and minimum terms of imprisonment. (
Id
., at p. 30; see
People v. Dakin
(1988)
Other courts also consider themselves capable of ascertaining whether a
defendant would have chosen a jury trial over a bench trial if there had not been an
error by the judge or counsel in connection with the jury waiver. In
U.S. v. Williams
(7th Cir. 2009)
A similar inquiry has also been endorsed for ascertaining whether a defendant
suffered prejudice due to ineffective assistance of counsel in connection with a jury
waiver. In
State v. Keller
(Iowa 2009)
The purpose of this discussion of relevant authority is not to suggest that all of these cases are factually on all fours with the present matter. It merely establishes that, contrary to defendant‘s position that such an inquiry is hopelessly speculative, in appropriate circumstances courts can indeed ascertain whether or not a particular defendant would have chosen a jury trial instead of a bench trial had an error in advisement not occurred.
Of course, there are limits to the ability of courts to undertake this form of
analysis. These limits are suggested by our decision in
Collins
,
The situation here is different from that before the
Collins
court in two
important respects. First, the statutory error that arises under state law when a trial
court fails to meet
Memro
‘s prophylactic requirement does not necessarily warrant the
same treatment that a constitutional error would receive. Our precedent, and that of
other jurisdictions, has recognized a difference between a failure to comply with a
statutory requirement that may serve to protect a constitutional right, and a violation
of the underlying constitutional right itself. In
Anzalone
,
supra
, 56 Cal.4th at
page 555, for example, we explained that the statutory requirement that a court or
clerk ask a jury whether it has agreed upon a verdict in a criminal case (§ 1149) is
―designed to protect the right to a unanimous verdict,‖ a ―core constitutional right.‖
We nevertheless held that a failure to comply with this statute was subject to harmless
error analysis under the standard specified in
Watson
,
supra
,
(Footnote continued on next page.)
*40
Second, even granting the existence of
Memro
error, defendant nonetheless
personally entered a constitutionally adequate jury waiver, applicable to all phases of
his trial.
15
The presence of a personal jury waiver that met basic constitutional
standards, if not the heightened requirements recognized as a matter of statutory
construction in
Memro
, minimizes any speculation that would otherwise be associated
with ascertaining whether defendant would have chosen a jury trial for the special
circumstance allegation, but for the
Memro
error. The presence of a knowing,
intelligent, and voluntary
personal
waiver of a jury trial by defendant distinguishes
the facts of this case from those involved in
People v. Blackburn
(2015) 61 Cal.4th
1113 (
Blackburn
) and
People v. Tran
(2015)
U.S. v. Robertson
,
supra
,
Here, in contrast, defendant personally entered a jury waiver, meaning that we are not left to ―speculate about whether [defendant] would have chosen a jury trial if he . . . had been in a position to make a personal choice.‖ ( Blackburn , supra , 61 Cal.4th at p. 1134.) Under somewhat analogous circumstances, Blackburn itself contemplated the application of harmless error analysis. The Blackburn majority observed that ―a trial court‘s failure to properly advise [a] . . . defendant of the right to a jury trial does not by itself warrant automatic reversal. Instead, a trial court‘s acceptance of a defendant‘s personal waiver without an express advisement may be deemed harmless if the record affirmatively shows, based on the totality of the circumstances, that the defendant‘s waiver was knowing and voluntary.‖ ( Id ., at p. 1136.)
The distinctive facts involved here also render inapposite decisions from other
jurisdictions that defendant cites for the proposition that a failure to obtain a valid jury
waiver requires automatic reversal. In
Fortune v. U.S.
(D.C. 2009)
(Footnote continued on next page.)
*42
involve a personal jury waiver by the defendant (e.g.,
State v. Hauk
(Wis.Ct.App.
2002)
Nor does
State v. Little
(Minn. 2014)
assertion that there was no knowing and intelligent jury waiver with regard to the special circumstance allegation in this case. There was such a waiver, and we perceive a significant difference between a failure to obtain any jury waiver at all, and a jury waiver that, although knowing and intelligent, does not satisfy the heightened standards described in Memro . Furthermore, Fortune cannot reasonably be read as taking the position that violation of a statutory procedure associated with the taking of a waiver is necessarily structural error — a position that, as discussed, this court has repeatedly rejected in any event. (See, e.g., Anzalone , supra , 56 Cal.4th at pp. 555-556; Crayton , supra , 28 Cal.4th at pp. 364- 366.) The fact that the Fortune court appears to have considered a specific and grave error‘s inconsistency with a local statute as one of several factors relevant to a determination that the mistake was structural in nature ( Fortune , at pp. 956-957) does not, logically, support the conclusion that any violation of any statutory procedure that protects a substantive right is necessarily structural error.
17
In reaching this conclusion, the court in
Little
,
court emphasized that although the conduct underlying the new charge was the same as that involved with previously charged crimes for which defendant had entered a jury waiver, ―the elements to be proved and the penalties are dramatically different.‖ ( Id ., at pp. 885-886.) Thus, whereas Little involved no waiver with regard to an added charge that significantly upped the ante of the defendant‘s trial, here defendant entered a constitutionally adequate jury waiver applicable to all phases of his trial. The cases therefore diverge in both the magnitude of the errors involved, and the ability of a reviewing court to evaluate what a defendant would likely have done in the absence of the error. Even so, Little applied harmless error analysis to the error before it. The fact that Little identified the error as prejudicial due to uncertainty about that defendant‘s choice between a jury trial and a bench trial does not support the wholesale rejection of harmless error analysis in this context.
Similarly distinguishable is
Miller v. Dormire
(8th Cir. 2002)
We therefore conclude that at least where, as here, a defendant has personally
entered a knowing, intelligent, and voluntary jury waiver as to all aspects of his or her
trial,
Memro
error admits of harmless error analysis. This assessment entails a review
of the record to ascertain whether it reveals a reasonable probability that defendant
would have opted for a jury trial of the special circumstance allegation, had no
Memro
error occurred. In undertaking this inquiry, we consider ―what the defendant would
have done‖ (
Martinez
,
supra
,
Defendant personally entered what we have determined to be a knowing and
intelligent jury trial waiver, and did so with the assistance of counsel. The record
reveals no hesitation by defendant in entering the waiver, nor uncertainty or confusion
about its scope or consequences, even when the trial judge advised him that it applied
―to all issues‖ in the case. Nor does the record reflect any concern or objection by
defendant when the attorneys offered argument to the court concerning the
relationship of the evidence adduced at trial to the special circumstance allegation —
first in connection with section 1118 motions, and again in the parties‘ closing
statements — or when the court found the special circumstance allegation to be true.
Finally, to the degree such evidence is useful in ascertaining what defendant would
*45
have done (see
Martinez
, ,
In conclusion, because the record before this court on appeal provides no basis for concluding that defendant would have chosen a jury trial for the special circumstance allegation had the trial judge avoided Memro error, we find the error harmless under the Watson standard.
B. Penalty Phase Issues
1. Penalty Phase Jury Waiver Issues Defendant also asserts that his waiver of a jury trial for the penalty phase was invalid or incomplete. His argument is twofold. First, he renews his argument concerning the absence of a knowing and intelligent jury waiver, stressing that the trial judge failed to adequately apprise him of essential features of the penalty phase. Additionally, relying on People v. Hovarter (2008) 44 Cal.4th 983 ( Hovarter ) defendant argues that the court was required to reaffirm at the outset of the penalty phase any jury waiver entered prior to trial. These arguments lack merit.
a. Adequacy of the Jury Waiver for the Penalty Phase Under the Federal and State Constitutions
Defendant‘s argument that he did not enter a knowing and intelligent waiver as to the penalty phase is not well taken.
As previously related, the trial court‘s advisement explained to defendant that he had a right to a trial by jury, and discussed two ―decisions‖ that would be made by the court if this right were waived. First, the court would make ―the *46 decision on whether [the] evidence was sufficient to prove . . . guilt beyond a reasonable doubt.‖ The court further explained that in the event it made such a finding, the case ―would then proceed to a penalty phase‖ in which the district attorney would present aggravation evidence, defendant would have a right to present mitigation evidence, and it would fall on the court to make ―the decision as to the appropriate punishment, which could result in a death penalty sentence.‖ After this explanation, the court asked defendant, ―Do you give up your right to a jury trial and agree that this Court, alone, will make those decisions . . . ?‖ (Italics added.) Defendant assented.
With the trial court‘s phrasing leaving no question that defendant‘s right to a jury trial extended to any penalty phase — at which time the court, if a jury was waived, would make the second ―decision‖ — defendant principally critiques the colloquy on the ground that the trial court did not tell defendant prior to taking his jury waiver that a death sentence could only result from a unanimous jury verdict. (See § 190.4, subd. (b).)
Under the totality of the circumstances presented here, we do not believe
that this omission, or any other attribute of the colloquy, directs a conclusion that
defendant did not enter a knowing and intelligent waiver of a jury for the penalty
phase. The better practice may be for a trial judge to provide such an advisement
before taking a jury waiver. Yet a failure to do so does not rise to the level of a
constitutional violation where, as in this case, the other circumstances surrounding
a jury waiver adequately establish that it was knowing and intelligent.
18
Even
18
As Justice Liu observes in the dissenting portion of his opinion (conc. &
dis. opn. of Liu, J.,
post
, at pp. 19-20), some courts have held that, as a
prerequisite to taking a knowing and intelligent waiver of a jury trial in a capital
case, a trial court must advise the defendant of juror unanimity rules pertinent to
sentencing. (E.g.,
State v. Martinez
(N.M. 2002)
(Footnote continued on next page.)
*47
though defendant was not told by the judge that a jury would have to unanimously
agree on a death sentence for such a sentence to be imposed, he was advised of
other elements of a jury trial and he was represented by counsel in connection with
the jury waiver. These and other attendant circumstances suffice to defeat
defendant‘s claim of constitutional error. (See
Weaver
, 53 Cal.4th at pp.
1072-1074;
Robertson
, 48 Cal.3d at pp. 36-38 [rejecting a defendant‘s argument
that the trial court‘s failure to advise him of the consequences of a jury deadlock at
the penalty phase rendered his jury waiver invalid, and observing that ―[a]bsent an
assertion or evidence to the contrary, we presume that competent counsel would
have informed defendant of the effect of a jury deadlock‖];
Sowell v. Bradshaw
(6th Cir. 2004)
Other courts have rejected the argument that such an advisement is required as a
matter of constitutional law, however. (E.g.,
People v. Whitehead
(Ill. 1987) 508
N.E.2d 687, 697;
State v. Bays
(Ohio 1999)
b. Failure to Reaffirm Defendant’s Jury Waiver Defendant‘s other challenge to his jury waiver as it relates to the penalty phase faults the trial judge for failing to reaffirm the waiver at the outset of this phase. Defendant gleans the need for such a reaffirmation from our decision in Hovarter .
In
Hovarter
,
either order a new jury or impose a punishment of confinement in state prison for a term of life without the possibility of parole.‖
The defendant in Hovarter read the first sentence of the second paragraph of section 190.4, subdivision (b) as imposing upon the court a mandatory duty to empanel a new jury for a penalty phase retrial. ( Hovarter , supra , 44 Cal.4th at p. 1025.) We disagreed with this interpretation, determining that ―[b]ecause the default position in criminal cases is a trial by jury, with a jury trial waiver the exception, the first paragraph of section 190.4, subdivision (b) must be read to mean that, despite the fact an accused waived his right to a jury for the guilt phase, the trial court must presume the defendant wants a jury to try the penalty phase unless a jury is again waived. In other words, as an added protection for criminal defendants, a single jury trial waiver given early in the trial process is insufficient; a defendant must reaffirm his waiver for the penalty phase. This view of section 190.4, subdivision (b) explains why the first paragraph includes an explicit mention of waiver. [¶] The meaning of the second paragraph dovetails with the first: If a jury was not waived for the penalty phase of trial, it shall be presumed the defendant also desires a jury for any retrial of that phase. This presumption, however, can — as in all situations in which the jury trial right attaches — be overcome with a knowing and intelligent waiver, personally given in open court.‖ ( Id ., at pp. 1026-1027.)
Defendant construes our analysis in
Hovarter
,
The more relevant precedent here is
Diaz
,
2. Consideration of Aggravating Evidence Defendant contends the trial court erroneously considered three types of aggravating evidence at the penalty phase. He asserts these errors violated his rights under state law as well as the Eighth and Fourteenth Amendments to the federal Constitution, and that, considered individually or cumulatively, they require reversal.
a. Prior Criminal Activity Involving Use of Force
At the penalty phase, the prosecution may present evidence showing ―[t]he
presence . . . of criminal activity by the defendant which involved the use or
attempted use of force or violence or the express or implied threat to use force or
*51
violence.‖ (§ 190.3, factor (b).) ―The prosecution bears the burden of proving the
factor (b) other crimes beyond a reasonable doubt.‖ (
People v. Moore
(2011) 51
Cal.4th 1104, 1135.) As relevant here, the term ―criminal activity‖ does not
require that defendant was actually convicted. ―However, no evidence shall be
admitted regarding other criminal activity by the defendant which did not involve
the use or attempted use of force or violence or which did not involve the express
or implied threat to use force or violence.‖ (§ 190.3
.
) Moreover, ―the term
‗criminal activity‘ includes only conduct that violates a penal statute.‖ (
People v.
Kipp
(2001)
―The question whether the acts occurred is . . . a factual matter . . . but the
characterization
of those acts as involving an express or implied use of force or
violence, or the threat thereof, would be a legal matter properly decided by the
court.‖ (
People v. Nakahara
(2003)
(
People v. Taylor
(2010)
i. Possession of Metal Object First, defendant argues that the trial court erroneously considered evidence that he possessed a metal object while in jail. The prosecution contended that the item was a ―dirk or dagger or sharp instrument‖ that defendant was prohibited from possessing while in confinement. (§ 4502, subd. (a).) Defendant argues, however, that the evidence introduced at the penalty phase failed to establish that *52 the item was sharp, and therefore his possession of the object should not have been considered in aggravation under section 190.3, factor (b).
As background, Terry Bardwell, a correctional officer at the Fresno County Jail, testified at the penalty phase that she inspected defendant‘s property upon his arrival at the jail. Officer Bardwell ―found — we consider it contraband, which would be a shank. Umm, it was approximately five-and-a-half inches long and one inch in width.‖ She wrote in her incident report that the object was made of metal. She discarded the object because it ―was not of evidentiary value.‖ On cross-examination, Bardwell conceded that she could not remember whether the object was sharpened, nor did she record anything in her report other than its size and material.
Defense counsel moved to strike Bardwell‘s testimony on the ground that there was insufficient evidence that the object had been sharpened to establish a violation of section 4502, subdivision (a). The trial court denied the motion, explaining, ―I think it‘s admissible. It‘s contraband. It is contraband because it is an item that can be used as a weapon. So there‘s case law that says even if there‘s a reasonable inference that the item seized was in fact a tattoo needle and not a stabbing utensil, that it still is admissible as a weapon because it can be used as a weapon. Might have been a shoe horn, about five-and-a-half inches long, inch wide.‖ Later, the trial court mentioned the shank when determining that a death sentence was justified, stating, ―The incidents in jail following Mr. Sivongxxay‘s arrest have been considered: threats to correctional officers after discipline was meted out or explained; the presence of a shank, which under jail rules was a weapon, and as an inmate can be considered by the Court as including a threat of violence.‖
In asserting that the trial court erred in considering possession of the item among the circumstances in aggravation, defendant emphasizes that although *53 Officer Bardwell described the item as a ―shank,‖ she acknowledged on cross- examination that she could not recall if it was sharp. Under the circumstances, defendant argues, ―this small piece of metal of unknown characteristics cannot qualify as a sharpened or stabbing instrument under section 4502 as a matter of law.‖
We need not decide whether the trial court erred in considering the
evidence regarding the ―shank‖ in aggravation, however, because even if we were
to assume that defendant has correctly identified error, the mistake was harmless.
Our determination whether state law error at the penalty phase prejudiced the
defendant turns on whether ―there is a reasonable (i.e., realistic) possibility that the
[sentencer] would have rendered a different verdict had the error or errors not
occurred.‖ (
People v. Brown
(1988)
Defendant‘s ―long pattern of violent crime against many, many victims‖ served as the organizing theme behind the trial court‘s summary of aggravating evidence. As the trial court put it, ―[h]is life of victimization carried through from the first act of violence in Washington State until the ultimate death of Henry Song.‖ Within that framework, defendant‘s postarrest conduct was an afterthought; it involved no acts of physical violence, and thus no victims, but only the threat of violence. The trial court‘s lack of emphasis on the metal object mirrors the prosecution‘s use of that evidence: It was only one of nine incidents introduced under section 190.3, factor (b), and it merited only a brief mention in *54 the prosecutor‘s penalty phase closing argument. To the extent the trial court placed any weight on defendant‘s conduct in custody and the future dangerousness it might have portended, the properly admitted evidence that defendant threatened a correctional officer, discussed post , conveyed that same theme. Thus, even assuming the trial court erred in considering evidence of the metal object, its error does not require reversal of the death sentence.
ii. Statements to Correctional Officer Defendant also challenges the admission of evidence under section 190.3, factor (b) that he threatened a correctional officer at the Fresno County Jail.
Eulalio Gomez, a correctional officer at the jail, testified that following an altercation between defendant and other inmates, defendant was moved to isolation. Officer Gomez was assigned the task of telling defendant that he was being removed from the general population and explaining the reasons why. Gomez testified that when he informed defendant that he was being placed in isolation, ―[h]e became very hostile towards me. He began threatening me.‖ Specifically, defendant said to him, ― ‗I see you all the time in the streets, I‘ll remember you,‘ ‖ and he repeated that statement several times. Gomez explained that defendant ―faced towards me, his hands clenched and very hostile, yelling at me and approximately three feet away from me.‖ Gomez described this as a ―combative stance, being a stance that would create an opinion or a belief that this person was going to attack you, assault you.‖ However, defendant did not touch Gomez, nor did Gomez ask defendant what he meant by ― ‗I see you all the time in the streets, I‘ll remember you.‘ ‖
The prosecutor sought to admit this evidence under section 190.3, factor (b) ―as a violation of section 69 of the Penal Code.‖ Defense counsel objected, suggesting that defendant‘s comments represented a ―communications problem‖ *55 rather than a threat. The trial court decided that it would ―probably just hear [Gomez‘s testimony] and see whether it amounts to a threat in my mind.‖ The trial court apparently concluded that the evidence was admissible because in explaining its decision to sentence defendant to death, it said it had considered as aggravating evidence ―threats to correctional officers after discipline was meted out or explained.‖
On appeal, defendant contends that his conduct did not constitute criminal
activity, and was therefore inadmissible, because it did not violate section 69. In
relevant part, section 69 makes it a criminal offense to ―attempt[], by means of any
threat or violence, to deter or prevent an executive officer from performing any
duty imposed upon such officer by law. ‖ We have explained that a ―threat,
unaccompanied by any physical force, may support a conviction‖ under this part
of section 69, but that to ―avoid the risk of punishing protected First Amendment
speech . . . the term ‗threat‘ has been limited to mean a threat of unlawful violence
used in an attempt to deter the officer.‖ (
In re Manuel G.
(1997)
In arguing that his conduct did not constitute a violation of section 69,
defendant points to cases where the Attorney General declined to contest
admissibility, where our observations about section 69 appeared in dicta, or that
*56
are clearly distinguishable for other reasons. (See
People v. Rodrigues
(1994)
As defendant recognizes, ―threats must be placed and understood in their
context.‖ (
People v. Iboa
(2012)
b. Escape from Custody Defendant contends the trial court erred in considering his status as a prison escapee under section 190.3, factor (a), which allows the prosecution to present evidence regarding ―[t]he circumstances of the crime of which the defendant was convicted in the present proceeding.‖
In its opening statement and again in closing argument at the penalty phase,
the prosecution noted that defendant escaped on February 26, 1996, from a
Washington State prison where he was serving a 55-month sentence for first
degree robbery. Defendant had introduced evidence of the escape during the guilt
phase in an attempt to rebut Mounsaveng‘s allegation that defendant threatened
him in December 1995 and January 1996. The prosecution invoked this evidence
at the penalty phase to show that defendant began his Fresno crime spree ―just five
months after his escape from Washington State Prison, which demonstrates . . .
Mr. Sivongxxay‘s lack of willingness to learn from his prior punishment, and
shows his incarceration did not change his violent character.‖ The prosecutor‘s
*58
penalty phase closing argument referenced
People v. Turner
(1990)
In announcing its sentencing decision, the trial court here said that although it was ―not considering any circumstances of his escape itself,‖ it had considered the fact that defendant committed the charged crimes ―while he was on escape status as a previously convicted felon.‖
Defendant attacks the trial court‘s consideration of his escape status
because, in his words, ―[t]he walkaway was simply unrelated to the circumstances
of the capital crime.‖ We need not decide whether this is correct, or whether a
sufficient connection existed between the escape and the circumstances of the
capital crime here for evidence of defendant‘s status as an escapee to be
considered under section 190.3, factor (a). Defendant failed to raise a timely
objection to admission and consideration of this evidence. The claim is therefore
forfeited. (
People v. Lewis
(2006)
20 Defendant asserts that the prejudice from the multiple evidentiary errors he perceives to have occurred at the penalty phase must be assessed cumulatively. Since we have identified and assumed only one error as to which a claim on appeal has not been forfeited, and have concluded that the assumed error was harmless, no further review of prejudice is necessary.
3. Miscellaneous Challenges to the Death Penalty Defendant raises numerous challenges to the constitutionality of the death penalty. He acknowledges that we have previously rejected each of these contentions. We do so again here, as detailed below.
Section 190.2 is not impermissibly vague, nor is it overbroad in a manner
that fails to meaningfully narrow the class of murderers eligible for the death
penalty. (
People v. Myles
(2012)
Section 190.3, factor (a), which permits the sentencer to consider the
―circumstances of the crime,‖ is not impermissibly vague or overbroad. (
People v.
Mills
(2010)
Section 190.3, factor (b) does not violate the Fifth, Sixth, Eighth or Fourteenth Amendments to the federal Constitution in allowing the sentencer to consider previously unadjudicated criminal activity. ( People. v. Jones (2013) 57 Cal.4th 899, 980.)
Section 190.3‘s use of the terms ―extreme‖ and ―substantial‖ does not erect
unconstitutional barriers to the sentencer‘s consideration of mitigating evidence.
(
People v. Valdez
(2012)
Section 190.3, factor (i) does not violate the Eighth or Fourteenth
Amendments to the federal Constitution by permitting the sentencer to consider
the defendant‘s age at the time of the crime. (
Mills
,
supra
,
Section 190.3, factor (k) is not unconstitutionally vague. (
Weaver
,
The relative culpability of codefendants is not a constitutionally required
mitigating factor. (
People v. Maciel
(2013)
California‘s sentencing statute sets forth a constitutionally adequate burden
of proof concerning the aggravating factors and the sentencer‘s ultimate decision.
(
People v. Banks
(2014)
The instructions and standards relevant to the sentencing decision are not
impermissibly vague or ambiguous on any of the following grounds: CALJIC No.
8.88 uses the phrases ―so substantial‖ and ―warrants‖ (
Valdez
,
supra
, 55 Cal.4th at
p. 180); CALJIC No. 8.88 fails to explain that the sentencer‘s ultimate
determination is whether death is the appropriate penalty (
Valdez
, at p. 179);
section 190.3 fails to guide the sentencer‘s discretion (
People v. Booker
(2011) 51
Cal.4th 141, 196); CALJIC No. 8.88 fails to state that life without possibility of
parole is mandatory if the aggravating factors do not outweigh the mitigating
factors (
People v. Gamache
(2010)
The trial court was not required to make written findings before reaching its
sentencing decision. (
People v. Mendoza
(2011)
Neither the Eighth Amendment nor the Fourteenth Amendment to the
federal Constitution, nor international law, mandates the use of intercase
proportionality review. (
Banks
,
supra
,
Finally, we once again reject the contention that California‘s use of the
death penalty, at all or as actually implemented in this state, violates international
law and the Eighth Amendment. (
People v. Johnson
,
III. CONCLUSION
We affirm the judgment in its entirety.
C ANTIL -S AKAUYE , C. J. W E C ONCUR :
W ERDEGAR , J.
C HIN , J.
C ORRIGAN , J.
K RUGER , J.
CONCURRING AND DISSENTING OPINION BY LIU, J.
In California, not all first degree murders are punishable by death or by life
imprisonment without the possibility of parole. The gateway to these sanctions is
the finding of a ―special circumstance,‖ a circumstance that sets the murder apart
from other murders and makes it eligible for the law‘s most severe penalties.
(Pen. Code, § 190.2; see
People v. Memro
(1985)
A criminal defendant is constitutionally entitled to a jury trial on the truth
of a special circumstance allegation. (See
Ring v. Arizona
(2002)
Today‘s opinion concludes otherwise. The court reprints Sivongxxay‘s waiver colloquy in its entirety (maj. opn., ante , at pp. 10–12) and acknowledges that ―[t]here was no specific reference in the waiver colloquy to the need to adjudicate the special circumstance allegation; the term ‗special circumstance‘ was never mentioned at all‖ ( id. at p. 30). Yet the court finds no constitutional violation, reasoning that Sivongxxay‘s assent to a jury trial waiver on ―all issues‖ meant he understood he was waiving a jury trial on the special circumstance allegation. ( Id. at p. 25.) This is a remarkably loose interpretation of what it means to make a ―knowing and intelligent‖ waiver. ( Collins , 26 Cal.4th at p. 305.) How can it be said that Sivongxxay waived a jury trial on the special circumstance allegation ― ‗ ― ‗with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it‘ ‖ ‘ ‖ ( ibid. , italics added) when the special circumstance ―was never mentioned at all‖ (maj. opn., ante , at p. 30) in the waiver colloquy?
Sivongxxay‘s waiver was also deficient under section 190.4(a) because he made no separate waiver of a jury trial on the special circumstance allegation. On this point, the court agrees; it concludes that the waiver colloquy lacked the *64 ―precision‖ and ―specificity‖ required by the statute. (Maj. opn., ante , at p. 30.) But the court goes on to find this error harmless on the ground that Sivongxxay has not shown a reasonable probability that he ―would have chosen a jury trial for the special circumstance allegation had the trial judge avoided [the] error.‖ ( Id. at p. 45.) This latter holding may understandably cause a bit of whiplash: The court, having found error under the statute, excuses the error through reasoning that defeats the statute‘s very purpose.
Section 190.4(a) provides that even if a defendant waives a jury trial on
other aspects of a capital case, the trier of fact on the special circumstance
allegation ―shall be a jury‖ unless the defendant executes a
separate
waiver.
(§ 190.4(a); see
Memro
,
From today‘s opinion, one would not get the sense that the jury trial
guarantees in federal and state law ―reflect a fundamental decision about the
exercise of official power — a reluctance to entrust plenary powers over the life
and liberty of the citizen to one judge or to a group of judges.‖ (
Duncan v.
*65
Louisiana
(1968)
For these reasons, and because Sivongxxay‘s jury trial waiver as to the penalty phase was also invalid, I respectfully dissent from the court‘s affirmance of the special circumstance finding and the death judgment.
I.
In addressing Sivongxxay‘s constitutional claim before his statutory claim,
today‘s opinion inverts the usual order of analysis. (See, e.g.,
People v. Brown
(2003)
The court cites
People v. Berutko
(1969)
Although the court implies that
Berutko
set forth a ―general rule‖ of
constitutional law (maj. opn.,
ante
, at pp. 21–22, fns. 5, 7), that case did not
address any constitutional issue concerning the jury trial waiver. Instead,
Berutko
addressed the scope of a jury trial waiver in the context of a specific statute,
former section 969 1/2 (now section 969.5), which provided that ― ‗the question
whether or not [the defendant] has suffered such previous conviction must be tried
by a jury impanelled for that purpose, unless a jury is waived, in which case it may
be tried by the court.‘ ‖ (
Berutko
,
supra
,
The real heart of the court‘s analysis is its claim that ―the specific advisements the trial court provided to defendant before taking his waiver, together with the other surrounding circumstances, confirm that defendant *67 knowingly and intelligently relinquished his right to a jury trial for this allegation.‖ (Maj. opn., ante , at p. 23.) The court asserts: ―The trial court‘s advisement conveyed that defendant had a right to a jury trial with regard to all issues as to which an adverse determination could expose him to the death penalty — which included the special circumstance allegation — and that with his waiver, defendant would be giving up that right.‖ ( Id . at p. 25, italics added.)
Let us compare this assertion, particularly the italicized phrase, with the waiver colloquy: ―THE COURT: Mr. Mounsaveng, Mr. Sivongxxay, you each have a right to a trial, either by a jury of 12 people selected from this community, through a process that you would engage in with your attorneys, the district attorney and the Court, or a trial in front of a judge, acting alone without a jury. [¶] The burden of proof remains the same. The district attorney has the burden to go forth with evidence sufficient to prove your guilt beyond a reasonable doubt. Then, and only then, would we get to a penalty phase. [¶] In a court trial, I would hear the evidence. I, alone, would make the decision on whether that evidence was sufficient to prove your guilt beyond a reasonable doubt. [¶] In the event I made such a finding, as to either or both of you, we would then proceed to a penalty phase, where the district attorney would present aggravation evidence. Through your — you, through your attorney, would have a right to present mitigation evidence, and it would fall upon me to make the decision as to the appropriate punishment, which could result in a death penalty sentence. [¶] Do you give up your right to a jury trial and agree that this Court, alone, will make those decisions . . . ? [¶] . . . [¶] THE COURT: Mr. Sivongxxay? [¶] THE DEFENDANT SIVONGXXAY: Yes. [¶] THE COURT: Ms. Detjen? [¶] MS. DETJEN: Yes, Your Honor, the People waive the jury trial. [¶] THE COURT: All right. We‘ll show a jury waiver on all issues . . . .‖
Today‘s opinion acknowledges, as it must, that ―[t]here was no specific reference in the waiver colloquy to the need to adjudicate the special circumstance allegation; the term ‗special circumstance‘ was never mentioned at all.‖ (Maj. opn., ante , at p. 30.) What, then, is the basis for the assertion that ―[t]he trial court‘s advisement conveyed that defendant had a right to a jury trial with regard to all issues as to which an adverse determination could expose him to the death penalty — which included the special circumstance allegation — and that with his waiver, defendant would be giving up that right‖? ( Id. at p. 25, italics added.) Simply put, there is none.
The court relies on
People v. Diaz
(1992)
The court says that to distinguish
Diaz
from this case is to endorse ―the
proposition that the judge was constitutionally bound to utter the phrase ‗special
circumstance‘ at some point in the waiver colloquy with defendant.‖ (Maj. opn.,
ante
, at pp. 26–27.) I agree that a trial judge need not recite any ― ‗ ―talismanic
phrase‖ ‘ ‖ (
id.
at p. 27) when discussing a special circumstance jury waiver. But
it is unusual, to say the least, to explain a thing without naming the thing being
explained. This is especially true here in light of our recognition that the special
circumstance is a ―unique‖ feature of California‘s capital scheme. (
People v.
Bacigalupo
(1993)
The court says that focusing ―on perceived deficiencies in the judge‘s
advisements to defendant‖ ignores other relevant circumstances, such as
―defendant‘s prior criminal history, other events before and after the waiver was
entered, and the fact that defendant was represented by counsel.‖ (Maj. opn.,
ante
,
at pp. 23–24, fn. 8.) But these other considerations do not tend to show that
Sivongxxay‘s special circumstance jury waiver was knowing and intelligent. Why
is Sivongxxay‘s criminal history relevant when he has never been subject to
California‘s ―unique‖ capital scheme? (
Bacigalupo
,
As for the fact that Sivongxxay was represented by counsel, our cases have found this relevant when the record indicates that counsel discussed the implications of the waiver decision with the defendant. (See People v.
Cunningham
(2015)
The court adds that Sivongxxay‘s ―failure to express any surprise or confusion regarding the judge‘s assertion that the waiver applied to ‗all issues‘ represents a relevant consideration in ascertaining the nature and extent of his waiver.‖ (Maj. opn., ante , at p. 14, fn. 2.) But if Sivongxxay had expressed surprise or confusion, presumably the trial judge or counsel would have clarified the issue, and we would not be here discussing it on appeal. In essence, the court would require the record to affirmatively demonstrate that Sivongxxay did not know he was entitled to a jury trial on the special circumstance allegation. That is not what the law requires, and for good reason: Where a defendant claims he did not understand the nature of his jury trial right and the consequences of waiving it, it makes no sense to say the defendant can prevail only if the record shows that he did not know what he did not know.
In sum, the waiver colloquy did not mention the special circumstance
allegation, and nothing else shows that Sivongxxay understood the nature of the
*71
allegation before he waived his right to a jury trial. On this record, I do not see
how the court can conclude that Sivongxxay waived a jury trial on the special
circumstance allegation ― ‗ ― ‗with a full awareness both of the nature of the right
being abandoned and the consequences of the decision to abandon it.‘ ‖ ‘ ‖
(
Collins
,
II. Notwithstanding its constitutional holding, today‘s opinion concludes that the trial court, in proceeding to a bench trial on the special circumstance allegation, violated section 190.4(a) by failing to take ―a ‗separate‘ waiver‖ with the ―specificity‖ required by the statute. (Maj. opn., ante , at p. 30.) But the court holds that the error does not require automatic reversal. To obtain relief, the court says, Sivongxxay must demonstrate a reasonable probability that he would have chosen a jury trial on the special circumstance allegation if the trial court had sought a separate waiver. ( Id. at p. 33.) The court concludes that Sivongxxay has not carried this burden and therefore finds the error harmless. ( Id. at pp. 44–45.)
At the outset, it bears mention that no party mentioned this theory of harmless error in the principal briefs. Sivongxxay maintained that the statutory error is structural; the Attorney General argued only that any error was harmless because, given the overwhelming evidence in support of the robbery-murder allegation, a jury would have found the allegation to be true. It was not until well after oral argument, when this court vacated submission and invited supplemental briefing on the theory adopted today, that the Attorney General embraced it. Although this court is not limited to the parties‘ arguments in conducting harmless error review (Cal. Const., art. VI, § 13), the fact that no party thought to advance the court‘s theory suggests its novelty.
(As an aside, I find it troubling that the Attorney General‘s supplemental
brief contends — at the eleventh hour, with no explanation for its belated epiphany
— that our precedent ―virtually compels‖ the harmless error analysis in today‘s
opinion. The absence of any explanation risks the perception that the Attorney
General‘s new contention is opportunistic or that his initial briefing, having missed
a theory ―virtually compel[led]‖ by our precedent, was of questionable
competence. Neither does wonders for the government‘s credibility. (See
People
v. Eubanks
(1996)
In any event, the court‘s theory of harmless error does not withstand
scrutiny. The reasoning of our recent decisions in
Blackburn
,
supra
, 61 Cal.4th
1113, and
Tran
,
Importantly, we observed that the Court of Appeal in
Blackburn
had said
―the trial court could ‗reasonably expect counsel to discuss all pertinent matters
that will arise or that have arisen in pretrial hearings, including the right to a jury
trial and whether to have one.‘ The Court of Appeal added that ‗this was not the
first extension of defendant‘s MDO commitment, and the record does not suggest
that defendant was unaware of his right to a jury trial notwithstanding the lack of a
judicial advisement. Nor does the record suggest that defendant was unaware that
counsel intended to waive a jury and had done so or that defendant wanted a jury
trial and objected (or would have objected) to counsel‘s waiver.‘ ‖ (
Blackburn
,
,
In the case before us, section 190.4(a) guarantees a jury trial on a special
circumstance allegation even if the defendant waives a jury for other phases of the
trial: ―If the defendant was convicted by the court sitting without a jury, the trier
of fact [on the special circumstance allegation] shall be a jury unless a jury is
waived by the defendant and by the people, in which case the trier of fact shall be
the court.‖ In
Memro
, we made clear that section 190.4(a) mandates a jury trial on
a special circumstance allegation unless the defendant makes ―a separate, personal
waiver.‖ (
Memro
,
The court purports to distinguish Blackburn and Tran on the ground that the trial court in those cases did not obtain any waiver of a jury trial, whereas the trial court in this case did obtain a jury trial waiver as to the guilt and penalty phases. (Maj. opn., ante , at pp. 40–41.) Here, according to today‘s opinion, the trial court committed ―an error in advisement.‖ ( Id. at pp. 33, 35, 38.) This characterization *75 of the error leads the court to rely on case law holding that errors in advisement do not warrant reversal unless the defendant can show he would have made a different choice had he been properly advised. ( Id. at pp. 33–38.)
Taking this reasoning on its own terms, I find it telling that the court does not bother to spell out what constituted the ―error in advisement‖ here. Were the court to do so, it would have to acknowledge that the waiver colloquy, culminating in the trial court‘s acceptance of ―a jury waiver on all issues,‖ nowhere advised Sivongxxay that the waiver covered the special circumstance allegation. But this would run directly counter to the court‘s earlier determination that ―[t]he trial court‘s advisement conveyed that defendant had a right to a jury trial with regard to all issues as to which an adverse determination could expose him to the death penalty — which included the special circumstance allegation — and that with his waiver, defendant would be giving up that right.‖ (Maj. opn., ante , at p. 25.) How can the court find ―an error in advisement‖ arising from the trial court‘s failure to mention the special circumstance allegation and yet rely on what ―[t]he trial court‘s advisement conveyed‖ to show that Sivongxxay knowingly and intelligently waived a jury trial on the special circumstance allegation? Although I recognize there is an analytical distinction between the statutory and constitutional validity of a trial court‘s advisement in this context, the distinction is narrow to the point of nonexistent on the facts here.
As to the applicability of harmless error analysis, to describe the error here as ―an error in advisement‖ is a euphemistic play on words. Sivongxxay was ―misadvised‖ only in the sense that the trial court told him nothing at all that would have informed him that his jury trial waiver on ―all issues‖ covered the special circumstance allegation. Against the backdrop of a statute requiring a separate waiver, this is tantamount to a complete failure to obtain a proper jury trial waiver on the special circumstance allegation. Sivongxxay did not suffer a *76 mere error in advisement; he suffered an unlawful deprivation of the jury trial guaranteed by section 190.4(a).
The circumstances here do not resemble the contexts in which we have
―assess[ed] whether a defendant would have made a different decision absent an
error in advisement.‖ (Maj. opn.,
ante
, at p. 33.) In
People v. Martinez
(2013) 57
Cal.4th 555,
People v. Superior Court
(
Zamudio
) (2000)
The more pertinent authority is
Fortune v. U.S.
(D.C. 2013)
Today‘s opinion says
Fortune
is distinguishable because it involved ―an
error of constitutional dimensions.‖ (Maj. opn.,
ante
, at p. 41.) But
Fortune
did
not address constitutional error; it addressed ―the trial court‘s error in failing to
seek a waiver of the jury trial‖ in accordance with procedures mandated by a
specific statute and by judicially articulated rules pursuant to the statute. (
Fortune
,
,
At the core of today‘s decision is the court‘s intuition that there is no basis
to think Sivongxxay, having waived a jury trial on the charged crimes and penalty,
would not have waived a jury trial on the special circumstance allegation as well.
(Maj. opn.,
ante
, at pp. 44–45.) But suppose counsel had advised Sivongxxay not
to waive a jury trial on the special circumstance allegation. If Sivongxxay then
claimed ineffective assistance of counsel, would we be prepared to say there was
― ‗no rational tactical purpose‘ ‖ for the choice? (
People v. Weaver
(2001) 26
Cal.4th 876, 926.) Our general reluctance to second-guess defense tactics is one
reason why it makes no sense ―[t]o speculate about whether a defendant would
have chosen a jury trial if he or she had been in a position to make a personal
choice.‖ (
Blackburn
,
More fundamentally, the Legislature has determined that in the context of a capital trial, waiver of a jury trial as to some determinations should not be understood to imply waiver of a jury trial as to others. Section 190.4(a) makes clear that even ―[i]f the defendant was convicted by the court sitting without a jury,‖ the trier of fact on the special circumstance allegation ―shall be a jury unless a jury is waived.‖ And section 190.4, subdivision (b) (section 190.4(b)) says that even ―[i]f [the] defendant was convicted by the court sitting without a jury[,] the trier of fact at the penalty hearing shall be a jury unless a jury is waived . . . .‖ In the face of these statutory commands, we should not indulge in ―two-out-of-three‖ reasoning to excuse a failure to take a separate jury trial waiver on the special circumstance allegation, just as we would not indulge such reasoning to excuse a failure to take a separate jury trial waiver on the penalty determination. With all that is at stake in a capital trial, the Legislature saw fit to require a degree of precision in eliciting the defendant‘s choices as to whether a judge or a jury should decide the issues at each step of the proceeding. This court should faithfully enforce the Legislature‘s directive.
Today‘s harmless error analysis changes the rules governing a capital
defendant‘s right to a jury trial on a special circumstance allegation. Despite the
plain language of section 190.4(a) and our decision in
Memro
, it does not really
matter whether the trial court takes a separate jury trial waiver; that is now a mere
technicality. What ultimately matters is whether the defendant has made a record
showing that he wanted a jury trial on the special circumstance allegation. To be
sure, the premise of harmless error doctrine is that ―few if any trials are entirely
free from error, and an appellate court would impair the basic functioning of the
criminal justice system if it were to reverse a conviction whenever some slight
misstep occurred.‖ (
People v. Jackson
(2014)
Because there was no valid jury trial waiver under section 190.4(a), the true finding on the special circumstance allegation and the death judgment should be reversed.
III. I also disagree with the court‘s conclusion that Sivongxxay knowingly and intelligently waived his right to a jury trial on the penalty determination. The trial court advised Sivongxxay that upon a finding of guilt, ―we would then proceed to a penalty phase, where the district attorney would present aggravation evidence. Through your — you, through your attorney, would have a right to present *80 mitigation evidence, and it would fall upon me to make the decision as to the appropriate punishment, which could result in a death penalty sentence.‖
Sivongxxay was not advised that a jury must achieve unanimity in order to
render a penalty verdict. The significance of this omission must be considered in
light of the jury‘s function at the penalty phase. Unlike its role at the guilt phase,
the jury‘s role in a capital penalty trial ―is not merely to find facts, but also — and
most important — to render an individualized,
normative
determination about the
penalty appropriate for the particular defendant — i.e., whether he should live or
die.‖ (
People v. Brown
(1988)
The crux of the waiver decision is whether to submit the life-or-death
penalty decision to a judge for his or her sole determination or to 12 lay jurors of
differing backgrounds who must unanimously agree on a death sentence before it
may be imposed. The importance of jury unanimity in the normative
determination of the appropriate penalty has a character distinct from the
importance of jury unanimity in the factual adjudication of guilt. Other courts
have recognized as much. In
Commonwealth v. O’Donnell
(Pa. 1999) 740 A.2d
198, the trial court had made clear during its penalty phase waiver colloquy that
the defendants were ―entitled to a jury trial in the death penalty phase‖ and that
they had the right to present evidence ―in mitigation of the application of the death
penalty.‖ (
Id
. at p. 212.) The Pennsylvania high court nonetheless found the
defendants‘ jury trial waiver constitutionally inadequate, principally because the
*81
trial court had not explained that a sentencing jury must be unanimous in its
verdict: ―Given the unique role a sentencing jury plays in the penalty phase of a
capital case [citation], it . . . seems appropriate for any colloquy preceding a trial
court‘s acceptance of a capital defendant‘s waiver to a penalty-phase jury to
inform the defendant of the requirement under Pennsylvania law that a penalty-
phase jury render a unanimous verdict. The defendant should be asked, in other
words, whether he understands that, if elected, a twelve member jury would be
required to unanimously agree that a sentence of death is appropriate before
imposing such a verdict on a defendant.‖ (
Id
. at p. 213; see also
State v. Martinez
(N.M. 2002)
In this case, not only did the trial court give no advisement concerning unanimity; the record also contains no indication that Sivongxxay discussed the waiver with counsel or that the trial court, prosecutor, or defense counsel ever asked Sivongxxay whether he understood the nature of the right he was giving up. Further, because capital sentencing is the only context in which California law authorizes a jury to decide the appropriate punishment for a criminal offense, Sivongxxay‘s prior convictions for noncapital offenses in other jurisdictions *82 provide no basis to infer that he understood the significance of a waiver of his right to a jury trial at the penalty phase.
The circumstances in this case differ markedly from those in which we
have found a knowing and intelligent penalty phase waiver. In
People v. Weaver
(2012)
We have never upheld a penalty phase jury trial waiver on a record of
advisement as thin as the one here. The record does not show that Sivongxxay
waived his right to a jury trial on the penalty determination ― ‗ ― ‗with a full
awareness both of the nature of the right being abandoned and the consequences of
the decision to abandon it.‘ ‖ ‘ ‖ (
Collins
,
Finally, the penalty phase waiver has an additional infirmity: The waiver colloquy suggested, contrary to section 190.4(b), that Sivongxxay had no separate right to a jury trial at the penalty phase if he elected a bench trial at the guilt phase. After briefly describing how a jury is selected and stating that the district attorney has the burden to prove guilt beyond a reasonable doubt, the trial court said: ―In a court trial, I would hear the evidence. I, alone, would make the decision on whether that evidence was sufficient to prove your guilt beyond a reasonable doubt. [¶] In the event I made such a finding, . . . we would then proceed to a penalty phase . . . . [ A ] nd it would fall upon me to make the decision as to the appropriate punishment , which could result in a death penalty sentence.‖ (Italics added.) The italicized language conveyed that in the event that a bench trial resulted in a finding of guilt, the prerogative to decide the appropriate punishment would remain with the court.
Yet section 190.4(b) makes clear that ―[i]f defendant was convicted by the court sitting without a jury[,] the trier of fact at the penalty hearing shall be a jury unless a jury is waived . . . .‖ It is not uncommon for capital defendants who opt for a bench trial on guilt to have a jury trial on the penalty determination. (See, e.g., Cunningham , 61 Cal.4th at pp. 616–617; People v. Mai (2013) 57 Cal.4th 986, 993–994.) The trial court‘s advisement erroneously implied that the jury trial waiver was an all-or-nothing decision; at the very least, it did not make clear that Sivongxxay had the right to a jury trial on penalty even if he chose to waive a jury trial on guilt. Today‘s opinion says ―[w]e do not believe that the colloquy is reasonably susceptible to this interpretation.‖ (Maj. opn., ante , at p. 48, fn. 19.) But what other reasonable interpretation is there? The court has no answer, let alone an answer more plausible than Sivongxxay‘s straightforward interpretation. As with the trial court‘s violation of section 190.4(a), the failure to elicit a separate waiver as to the penalty determination as required by section *84 190.4(b) resulted in a complete deprivation of a jury trial, warranting automatic reversal.
IV.
I agree with the court‘s conclusion that Sivongxxay‘s guilt phase waiver
was valid, and I agree with the court‘s guidance on advisements that trial judges
should give when eliciting jury trial waivers in the future. (Maj. opn.,
ante
, at
p. 17.) But I do not think we should rely on Sivongxxay‘s ―prior experience with
the criminal justice system‖ as evidence that he was familiar with the right to a
jury trial. (
Id
. at p. 14.) We have no record of what advisements he received
before entering the Oregon pleas, and the written waiver he signed in Washington
State merely said he understood he had ―the right to a speedy and public trial by an
impartial jury,‖ not that he understood what that right entailed. Nor is there any
indication that he discussed his prior waiver decisions with counsel. (Cf.
U.S. v.
Shorty
(9th Cir. 2013)
In sum, I join today‘s affirmance of Sivongxxay‘s convictions, but I would reverse the special circumstance finding and the judgment of death.
L IU , J.
*85
CONCURRING AND DISSENTING OPINION BY CUÉLLAR, J.
A special circumstance allegation is the means by which the trier of fact
determines whether a first degree murder trial will continue to a penalty phase, at
which the convicted murderer‘s fate — death or life imprisonment without the
possibility of parole — will be decided. The federal Constitution guarantees a
defendant the right to have a jury decide the truth of the special circumstance
allegation. (See
Ring v. Arizona
(2002)
Despite these omissions, what the majority concludes is that defendant
knowingly and intelligently waived his right to have a jury decide the truth of the
special circumstance allegation, and the court‘s failure to elicit a ― ‗separate
waiver‘ ‖ of that right was harmless. (Maj. opn.,
ante
, at p. 30.) Unlike the
majority, I do not believe we can meet our obligation to safeguard the right to a
jury trial while minimizing — let alone ignoring — the failure to obtain
*86
defendant‘s waiver of his right to a jury trial on the special circumstance
allegation. (See
Ring v. Arizona
,
I. Crowded dockets, constrained budgets, and overwhelming caseloads for public attorneys create undeniable pressure to speed criminal cases along. A jury trial may be the hallmark of our criminal justice system — and the quintessential event that continues to grab the attention of movie and television viewers — but it is also the most burdensome and inefficient means of resolving a criminal accusation. So it is no surprise that over 95 percent of felony cases are resolved before trial. (Judicial Council of Cal., 2016 Court Statistics Rep., Statewide Caseload Trends 2005-2006 Through 2014-2015 (2016) p. 47.)
Even when cases go to trial, judges and attorneys are well aware that not all trials are created equal. A bench trial offers considerable savings of time and resources. Lawyers in a bench trial sidestep the need to spend time selecting a jury, presenting opening statements, addressing legal issues at sidebar, crafting jury instructions and limiting instructions, and waiting in suspense for the outcome *87 of a jury‘s deliberation. A bench trial also obviates the need to worry about the risk of a mistrial if the jury is divided or subject to improper influences. Indeed, one study of courts in California and two other states found that the median length of criminal jury trials was roughly three times that of criminal bench trials. (Nat. Center for State Courts, On Trial: The Length of Civil and Criminal Trials (1988) pp. 8-9.)
This backdrop helps explain why the Legislature in 1977 erected –– and the voters in 1978, although repealing the statute, retained –– an elaborate procedural framework protecting a capital defendant‘s right to a jury trial at each stage of the proceeding. In restoring the death penalty following its invalidation by this court and the United States Supreme Court, the Legislature and the voters took special care to ensure that a jury trial would be had at each phase of the death penalty trial unless the defendant personally and with specificity waived it: ―If the defendant was convicted by the court sitting without a jury, the trier of fact [on the truth of each alleged special circumstance] shall be a jury unless a jury is waived by the defendant and by the people.‖ (§ 190.4, subd. (a), italics added.) Likewise, ―[i]f the defendant was convicted by a plea of guilty, the trier of fact [on the truth of each alleged special circumstance] shall be a jury unless a jury is waived by the defendant and by the people.‖ ( Ibid ., italics added.) And even if the defendant was convicted of murder and any special circumstance found true in a bench trial, ―the trier of fact at the penalty hearing shall be a jury unless a jury is waived by the defendant and the people . . . . If the defendant was convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived by the defendant and the people.‖ ( Id ., subd. (b), italics added.) Thus, a capital defendant will have a jury decide the truth of any special circumstance allegations and the appropriate penalty, despite having waived a jury in prior proceedings, unless ―by the consent *88 of both parties expressed in open court by the defendant and the defendant‘s counsel‖ a jury is waived. (Cal. Const., art. I, § 16.)
Nothing about this scheme indicates or even suggests a tether between the
right to have a jury decide the truth of a special circumstance allegation and a
defendant‘s right to a jury trial on guilt or innocence of the underlying offenses, or
any other right. To the contrary: Even if the defendant waived a jury at the guilt
phase (or pleaded guilty), the law requires a jury to decide the truth of the special
circumstance, unless the defendant waives that right. The separate nature of the
jury trial right articulated in section 190.4 places it outside ―the general rule‖ (maj.
opn.,
ante
, at p. 21, fn. 5) on which the majority relies — i.e., that a jury waiver is
deemed to be consent ― ‗ ―to a trial of all issues in the case before the court sitting
without a jury.‖ ‘ ‖ (
Id
. at p. 21, quoting
People v. Berutko
(1969)
(Footnote continued on next page.)
*89
In rejecting Berutko‘s contention that his general jury waiver encompassed only
the substantive offenses and did not extend to the prior conviction allegation, we
concluded that ― ‗[t]he whole spirit and intent of these statutes appear to be that a
prior conviction charge is to be determined solely as one of the issues in the trial
for the new offense.‘ ‖ (
Berutko
, at p. 94.) Section 190.4, on the other hand, is
not premised on the idea that the truth of the special circumstance allegation or the
choice of penalty is merely one among the many issues in a ― ‗one trial‘ ‖ system.
(
People v. Jarmon
(1992)
This is what we made clear in
Memro
,
Although section 190.1, subdivision (a) does state that (except for the prior
murder special circumstance) ―[i]f the trier of fact finds the defendant guilty of
first degree murder, it shall at the same time determine the truth of all special
circumstances charged,‖ we have previously explained that a broad reading of this
provision ―would render the jury trial guarantee in section 190.4, subdivision (a)
meaningless in many special circumstance cases.‖ (
People v. Memro
(1985) 38
Cal.3d 658, 702 (
Memro
).) Indeed, section 190.1, subdivision (a) plainly has no
application any time the trier of fact at the guilt phase and the special circumstance
phase are different, since it would be impossible for ―the trier of fact‖ in such a
situation to determine guilt of first degree murder and the truth of any special
circumstances ―at the same time.‖ (See
Memro
, at p. 701.)
*90
requires ―that an accused whose special circumstance allegations are to be tried by
a court must make
a separate, personal waiver
of the right to a jury trial.‖
(
Memro
, at p. 704, italics added.) We distinguished
Berutko
‘s general rule and the
prior conviction statutes on which it relied, and for good reason. The prior
conviction statutes reflected an entirely different ― ‗spirit and intent‘ ‖ than what
could be gleaned from the ―separate jury waiver . . . necessary for special
circumstance allegations in death penalty legislation.‖ (
Memro
, at p. 702, fn. 52.)
Under the death penalty scheme, a separate waiver requires a showing that ―the
defendant is aware that the waiver applies to each of these aspects of trial‖ (
People
v. Diaz
(1992)
No such waiver occurred here. (Maj. opn.,
ante
, at pp. 29-30.) So it is
quite puzzling that even as the majority concedes the lack of a waiver, it
nonetheless concludes defendant knowingly and intelligently waived his federal
constitutional right to have a jury decide the truth of the special circumstance
allegation. What makes a jury waiver knowing and intelligent is that it was ―made
with full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it.‖ (
Moran v. Burbine
(1986) 475 U.S.
412, 421; accord,
People v. Weaver
(2012)
Recognizing the colloquy‘s inadequacies, the majority deploys vague
references invoking ―other events before and after the waiver was entered‖ (maj.
opn.,
ante
, at p. 24, fn. 7) as evidence of what it repeatedly — and inaccurately —
calls a ―comprehensive‖ jury waiver. (
Id
. at pp. 21, 23, fn. 7, 26.) The record‘s
deficiencies are not so easily evaded. Defendant‘s out-of-state convictions for
robbery and unauthorized use of a vehicle provide no basis for inferring that he
understood his trifurcated right to a jury under California‘s death penalty scheme
in general or his right to have a jury decide the truth of the special circumstance in
particular. (See
People v. Brown
(Ill. 1996)
The majority also purports to rely on silence –– specifically, the
defendant‘s silence in response to the trial court‘s assertion that ―[w]e‘ll show a
jury waiver on all issues, confirm the matter for January the 11th.‖ (See maj. opn.,
ante
, at p. 14 & fn. 2.) Given the trial court‘s erroneous description of the ―issues‖
to be tried as consisting solely of a guilt phase and a penalty phase, however, it is
difficult to comprehend how the trial court‘s summary could somehow have
expanded the preceding waiver to encompass the special circumstance allegation.
In any event, silence here is the problem, not the solution: It is well-established
*92
under the California Constitution that neither silence nor acquiescence implies a
waiver of the right to a jury trial. The defendant must instead expressly waive the
right. (
People v. Ernst
(1994)
The only exchange involving defendant — and the one on which the majority is therefore forced to place principal reliance — is defendant‘s assent to the trial court‘s final question at the pretrial waiver hearing: ―Do you give up your right to a jury trial and agree that this Court, alone, will make those decisions . . . ?‖ (Quoted by maj. opn., ante , at p. 24.) But where no one — not the trial court, not the prosecutor, and not defense counsel — ever mentioned that a trial would also occur on the truth of the special circumstance and that he was being asked to waive his right to a jury trial at such a proceeding, it is difficult to credit the majority‘s contention that the ―advisements the trial court provided to defendant before taking his waiver, together with the other surrounding circumstances, confirm that defendant knowingly and intelligently relinquished his right to a jury trial for this allegation.‖ ( Id . at p. 23.) In short, the majority fails to identify anything in the record supporting its conclusion that defendant was aware of the nature of the right he was abandoning or the consequences of abandoning it.
Those consequences depend in part on a given jurisdiction‘s law. The
majority‘s approach, for example, seems to track
Ohio’s
death penalty scheme,
which provides for an all-or-none waiver of what the statute treats as a unitary jury
trial right: The sentencer will be ―the trial jury and the trial judge, if the offender
was tried by jury,‖ but otherwise must be ―the panel of three judges that tried the
offender upon the offender‘s waiver of the right to trial by jury.‖ (Ohio Rev. Code
Ann. § 2929.03(C)(2)(b).) Thus, under Ohio law, the ―[t]he waiver of the right to
trial by jury in a capital case applies to both the guilt phase and the penalty phase
of the trial.‖ (
State v. Foust
(Ohio 2006)
But Ohio law is materially different from California‘s, which maintains a
jury trial as the default even if the defendant has waived jury at a previous phase
of the trial. (See
People v. Hovarter
(2008)
These state supreme courts held that a jury waiver made without specifying
what was being waived was insufficient. In the Illinois case, the defendant was
advised –– and indicated he understood –– that he would lose his ― ‗
constitutional
right to a jury trial
in this case, and this case will then be heard and decided by
this court without a jury[].‘ ‖ (
Brown
,
Here, of course, defendant
had
a federal constitutional right to require that a
jury decide the truth of the special circumstance. (
People v. Weaver
,
supra
, 53
Cal.4th at p. 1074; see
Ring v. Arizona
,
supra
,
It should be crystal clear that no decision by this court or the high court has ever found a knowing and intelligent waiver of the trifurcated right to a jury without proof that the defendant was aware of his right to a jury trial at each of the three stages. We distort the meaning of the words ―knowing‖ and ―intelligent‖ when we find such a waiver even where the defendant fails to grasp that he has a *96 right to have a jury decide the truth of the separate allegation that will render him eligible for the death penalty.
The gist of defendant‘s claim is that the record fails to show he was aware
of his right to a jury trial on this phase of the trial or that he waived it.
State v.
Williams
(Or.Ct.App. 2005)
Washington
(2004)
From all these reasons I draw an unremarkable conclusion. A defendant does not knowingly and intelligently waive his federal constitutional right to have a jury determine the truth of a special circumstance allegation where there is nothing in the record to indicate that the defendant was aware of the right to have a *97 jury determine the truth of the special circumstance or that the defendant intended to waive that right.
II.
Even if considered solely as an error under state law, though, the trial
court‘s decision to conduct a bench trial on the special circumstance allegation
requires reversal of the special circumstance and the death judgment. As the
majority readily concedes (maj. opn.,
ante
, at p. 28), there was no ―separate,
personal waiver‖ of defendant‘s right to have a jury determine the truth of the
special circumstance allegation as required by section 190.4, subdivision (a).
(
Memro
,
How should we measure the effect of that error? We typically interpret the
miscarriage of justice provision of our state Constitution (Cal. Const., art. VI,
§ 13) to require a party challenging the judgment to demonstrate that ―it is
reasonably probable that a result more favorable to the appealing party would have
been reached in the absence of the error.‖ (
People v. Watson
(1956) 46 Cal.2d
818, 836.) But not always. Certain errors — such as the erroneous denial of a
jury trial — can constitute a miscarriage of justice and thus require reversal of the
judgment ―without inquiry into the strength of the evidence in a particular case.‖
(
People v. Blackburn
(2015)
We recently examined the effect of the failure to obtain a valid jury waiver
in the context of a trial to extend the civil commitment of a mentally disordered
offender (MDO) (
Blackburn
,
supra
,
In words that have special force here, we declared that ―[i]f the case now
before us were a criminal matter involving the invalid waiver of a state or federal
constitutional jury trial right, there could be no doubt that the error would
constitute a ‗miscarriage of justice‘ requiring reversal without regard to the
strength of the evidence.‖ (
Blackburn
,
supra
,
Our sister courts are in accord. (
Fortune v. U.S.
(D.C. 2009)
Despite widespread agreement that harmless error analysis does not apply — chiefly because it is impossible to reconstruct what choice a defendant would have made when he was never actually presented with the choice — the majority nonetheless contends that the trial court‘s failure to obtain a jury waiver covering this critical stage of a death penalty proceeding is always harmless, unless the defendant can demonstrate a reasonable probability he would not have waived jury trial if actually offered the opportunity to do so. (Maj. opn., ante , at pp. 44.) To subject the failure to elicit a defendant‘s waiver of his jury trial right to retrospective speculation of what the defendant would have decided is to dilute the importance of a right with abiding structural significance. So it is not surprising that the majority is unable to cite even a single case holding that this harmless error analysis applies when, as here, a defendant has properly preserved his claim that he never waived his right to a jury trial. The majority relies instead on cases *100 — easily distinguishable from this one — where the defendant waived a jury, but claimed his jury waiver was a product of a misadvisement.
In
U.S. v. Williams
(7th Cir. 2009)
Notice how in each of these cases, the defendant
actually waived
jury trial.
The question was simply whether some deficiency in the advisement might have
affected a decision the defendant had already made. Here, though, defendant
never waived his right to a jury trial on the special circumstance allegation.
Without a waiver, ―it is impossible for [a defendant] to establish what he would
have done at the time,‖ and thus one ―can only speculate now about what he would
have done then.‖ (
State v. Little
(Minn. 2014)
In part because defendant actually waived jury trial in all these situations,
the analysis in these misadvisement cases did not demonstrate that harmless error
analysis was
possible
— instead of merely conveying that the applicable doctrine
2
Notice how precisely the opposite is true of the failure to readvise an
unrepresented defendant, who has
already
knowingly and voluntarily waived
counsel, of the right to counsel at the time of arraignment under section 987,
subdivision (a). A reviewing court can easily determine whether the failure to
readvise
a defendant about the right to counsel and to obtain a renewed waiver of
that right was prejudicial where (1) a magistrate has already advised the defendant
about the right to counsel and cautioned the defendant about the pitfalls of self-
representation at the preliminary hearing as well as trial, and (2) the defendant
expressed an understanding of the risks and a desire nonetheless to proceed
without the assistance of counsel throughout the proceedings. (
People v. Crayton
(2002)
for examining the claim (whether plain error or ineffective assistance of counsel)
required it in the situations before the court. Indeed, in
U.S. v. Williams
,
supra
,
In contrast, here the trial court failed entirely ―to obtain a valid jury
waiver.‖ (
Blackburn
,
defendant was present in court when his attorney announced ― ‗we‘re prepared to
waive a jury as to both phases of the trial [guilt and sanity] at this time, and my
client is prepared to go on the record to that effect‘ ‖; when his attorney
subsequently stated that ― ‗We are prepared to waive jury as to both issues‘ ‖; and
when the trial court declared ― ‗Jury waived by both sides. It‘s been done. [¶] Is
this going as a nonjury case?‘ ‖ and ―[b]oth sides responded affirmatively.‖
(
Ernst
,
supra
,
Practical considerations also distinguish the misadvisement cases from the
situation now before us. In the misadvisement context, we assign the burden to
demonstrate prejudice to the defendant because of the ease by which a defendant
might assert, after the fact, that virtually any kind of misadvisement induced the
defendant‘s jury waiver (or plea), and the difficulty in refuting such a claim. (See
In re Alvernaz
,
The majority finds it significant — in fact, determinative — that defendant entered some kind of jury waiver, and seeks to relegate the remainder of defendant‘s claim to a dispute about the adequacy of the advisement he received. (Maj. opn., ante , at p. 40.) But the defect here goes well beyond merely an error in the advisement. This is not a situation like Berutko , where the defendant was unaware that his jury waiver as a matter of law included a waiver of jury as to the prior conviction allegation. The jury waiver here did not , as a matter of law, include a waiver of his right to a jury trial as to the special circumstance . Under California law, the right to a jury trial for the special circumstance is divisible from the other jury trial rights — and unless there is ―a ‗separate, personal‘ waiver of the right to a jury for a special circumstance allegation, above and beyond the standard guilt phase and penalty phase waiver‖ (maj. opn., ante , at p. 28), the defendant is entitled to a jury trial on the special circumstance allegation.
(§ 190.4, subd. (a).) Thus, despite a waiver of jury at the guilt phase, ―the trial
court
must presume
the defendant wants a jury‖ to try the subsequent phases of a
capital trial. (
People v. Hovarter
,
The majority also contends that nothing in the language, structure, or context of section 190.4, subdivision (a) would support the conclusion that the failure to obtain a separate, personal waiver constitutes structural error. (Maj. opn., ante , at pp. 32.) I disagree. In four different sentences, section 190.4 emphatically declares that the trier of fact ―shall be a jury, unless a jury is waived,‖ notwithstanding a waiver of jury (or entry of a plea) at a prior phase. *105 Moreover, the language guaranteeing a jury trial for the special circumstance allegation tracks almost verbatim the language guaranteeing a jury trial for the penalty determination. (Compare § 190.4, subd. (a) with id ., subd. (b).) There is thus no indication that the Legislature in 1977, or the voters in 1978, wanted to extend a lesser form of protection to the jury trial right for special circumstances than to the jury trial right for the penalty determination. Surely the majority does not mean to suggest that the failure to obtain a capital defendant‘s jury waiver for the penalty trial would necessarily be harmless under section 190.4, unless the defendant could demonstrate that he would not have waived jury trial had he been offered the opportunity.
The language used in section 190.4 also differs substantially from those
statutory provisions supporting the general rule ― ‗that where a defendant waives a
jury trial he is deemed to have consented to a trial of all of the issues in the case
sitting before the court sitting without a jury.‘ ‖ (Maj. opn.,
ante
, at p. 21; cf.
People v. Vera
(1997)
What section 190.4 does is set an exacting standard for the waiver of a jury at each step of a death penalty proceeding –– and for good reason. Protecting the constitutional right to a jury trial in a death penalty proceeding is the responsibility of this court. So is ensuring that statutory protections for that right enacted by the *106 Legislature and the voters are effective, and enforced. As the majority falls short in this task, I respectfully dissent from the judgment affirming the special circumstance finding and the death judgment.
C UÉLLAR , J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Sivongxxay
__________________________________________________________________________________ Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________ Opinion No. S078895
Date Filed: June 19, 2017
__________________________________________________________________________________ Court: Superior
County: Fresno
Judge: Gene M. Gomes
__________________________________________________________________________________ Counsel:
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Douglas Ward, Deputy State Public Defender, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Sean M. McCoy, Ryan B. McCarroll and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion): Douglas Ward
Deputy State Public Defender
P.M.B. #199, 350 Bay Street
San Francisco, CA 94133
(415) 494-9252
Lewis A. Martinez
Deputy Attorney General
2550 Mariposa Mall, Room 5090
Fresno, CA 93721
(559) 477-1677