People v. Sivongxxay

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

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.

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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,

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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

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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

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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.

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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.

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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.‖

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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.

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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].

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―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.

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[¶] 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) 53 Cal.4th 1056, 1071 (Weaver).)

However, a ―jury may be waived in a criminal cause by the consent of both parties

expressed in open court by the defendant and the defendant‘s counsel.‖ (Cal.

Const., art. I, § 16.) Waiver must be ―express[ed] in words . . . and will not be

12

implied from a defendant‘s conduct.‖ (People v. Holmes (1960) 54 Cal.2d 442,

443-444 (Holmes).) Moreover, ―a defendant‘s waiver of the right to jury trial may

not be accepted by the court unless it is knowing and intelligent, that is, ‗ ― ‗made

with a full awareness both of the nature of the right being abandoned and the

consequences of the decision to abandon it,‘ ‖ ‘ as well as voluntary ‗ ― ‗in the

sense that it was the product of a free and deliberate choice rather than

intimidation, coercion, or deception.‘ ‖ ‘ ‖ (People v. Collins (2001) 26 Cal.4th

297, 305 (Collins), quoting Moran v. Burbine (1986) 475 U.S. 412.) ―[W]hether

or not there is an intelligent, competent, self-protecting waiver of jury trial by an

accused must depend upon the unique circumstances of each case.‖ (Adams v.

U.S. ex rel. McCann (1942) 317 U.S. 269, 278 (Adams).)

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, supra, 317 U.S. at p. 278; cf. People v. Marlow (2004) 34 Cal.4th 131,

13

148 [looking to the ―totality of the circumstances‖ in ascertaining whether a

defendant knowingly and intelligently waived his rights in entering a guilty plea];

People v. Howard (1992) 1 Cal.4th 1132, 1175 (Howard) [same].)

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) 506 U.S. 20, 37 [―evidence of a defendant‘s

2 Although the judge made this observation after defendant orally waived a

jury trial, the totality of the circumstances approach permits a reviewing court to

take into account events that follow the entry of a jury waiver to confirm matters

such as the waiver‘s character and scope. (See, e.g., U.S. v. Boynes (4th Cir. 2008)

515 F.3d 284, 287; U.S. v. Page (5th Cir. 1981) 661 F.2d 1080, 1083; State v.

Clemons (Kan. 2002) 45 P.3d 384, 393; State v. Baxter (Mo. 2006) 204 S.W.3d

650, 654.) Here, defendant‘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.

14

prior experience with the criminal justice system [is] relevant to the question

whether he knowingly waived constitutional rights‖]); People v. Langdon (1959)

52 Cal.2d 425, 432 [observing, in ascertaining whether there had been a knowing

and intelligent waiver of the jury trial right, that the defendant ―had also been

before the criminal courts on at least three previous occasions‖]; State v. Rizzo

(Conn. 2011) 31 A.3d 1094, 1112 (Rizzo) [considering a defendant‘s prior

experience with the criminal justice system as relevant to whether the defendant

entered a knowing and intelligent jury waiver]; People v. Bannister (Ill. 2008) 902

N.E.2d 571, 584 [same]; Poore v. State (Ind. 1997) 681 N.E.2d 204, 207 [same].)

Viewed holistically, the circumstances surrounding defendant‘s jury waiver

demonstrate that it was knowing and intelligent.

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, supra, 31 A.3d at

p. 1116; see also U.S. v. Cochran (9th Cir. 1985) 770 F.2d 850, 851 (Cochran)),3

and we have never insisted that a jury waiver colloquy invariably must discuss

juror impartiality, the unanimity requirement, or both for an ensuing waiver to be

knowing and intelligent. (See People v. Tijerina (1969) 1 Cal.3d 41, 45-46

[finding a jury waiver knowing and intelligent even though the defendant was not

advised of the unanimity requirement].) It is true that in many cases in which we

have upheld a waiver of a jury trial, we have observed that the defendant had been

3 Our state Constitution, of course, requires as a minimum that a jury waiver

be ―expressed in open court by the defendant and the defendant‘s counsel.‖

(Cal. Const., art. I, § 16; see People v. Ernst (1994) 8 Cal.4th 441, 445.)

15

expressly advised that unanimity among the 12 jurors is necessary to render a guilt

or penalty verdict. (See People v. Cunningham (2015) 61 Cal.4th 609, 636;

People v. Scott (1997) 15 Cal.4th 1188, 1208 (Scott); People v. Diaz (1992) 3

Cal.4th 495, 570 (Diaz); People v. Robertson (1989) 48 Cal.3d 18, 37, fn. 5

(Robertson).) But under the totality of the circumstances standard, the presence or

absence of a reference in a colloquy to this particular attribute of a jury trial, or to

the impartiality requirement, is not necessarily determinative of whether a waiver

meets constitutional standards. (See Weaver, supra, 53 Cal.4th at pp. 1072-1074

[rejecting a defendant‘s argument that the failure to advise him of his right to

participate in jury selection necessarily rendered his jury waiver invalid]; U.S. v.

DeRobertis (7th Cir.1983) 715 F.2d 1174, 1186 [finding a knowing and intelligent

jury waiver notwithstanding the trial court‘s failure to advise the defendant of the

juror vote necessary to convict]; Rizzo, supra, 31 A.3d at p. 1118 [―this court and

others have rejected claims that an otherwise valid waiver of the right to a jury is

undermined by the trial court‘s failure to include a specific item of information in

its canvass‖].) With the circumstances presented here, we are not persuaded that

the trial court‘s failure to mention these characteristics of a jury trial renders

defendant‘s waiver constitutionally infirm.

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) 635 F.2d 889, 890

[trial courts ―should explain that a jury is composed of twelve members of the

community, that the defendant may participate in the selection of jurors, and that

the verdict of the jury is unanimous. The court should inform the defendant that if

16

he waives a jury, the judge alone will decide guilt or innocence‖]; U.S. v.

Robertson (10th Cir. 1995) 45 F.3d 1423, 1432 [same]; Marone v. U.S. (2d Cir.

1993) 10 F.3d 65, 68 [same]; U.S. v. Martin (6th Cir. 1983) 704 F.2d 267, 274-275

[same]; State v. Blann (N.J. 2014) 90 A.3d 1253, 1253 [same]; State v. Redden

(W.Va. 1997) 487 S.E.2d 318, 326 [adopting the same advisements and also

suggesting that a trial court should ―ascertain on the record whether improper

pressure or inducements, or a confused mental state, have affected the defendant‘s

decision to waive the right to a jury trial‖]; U.S. v. Duarte-Higareda (9th Cir.

1997) 113 F.3d 1000, 1002 (Duarte-Higareda) [stating that the district court

should advise a defendant of these factors and ―question the defendant to ascertain

whether the defendant understands the benefits and burdens of a jury trial and

freely chooses to waive a jury‖]; State v. Anderson (Wis. 2002) 638 N.W.2d 301,

310 [adopting similar advisements and also stating that a trial court must ensure

that the defendant ―made a deliberate choice, absent threats or promises, to

proceed without a jury trial” and “had enough time to discuss this decision with

his or her attorney”].)

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.

17

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, 31 A.3d at p. 1120.)

Accordingly, the guidance above is advisory. As reflected in our determination

here that defendant entered a knowing and intelligent waiver of his right to a jury

trial, a trial court‘s adaptation of or departure from the recommended colloquy in

an individual case will not necessarily render an ensuing jury waiver invalid. (See

U.S. v. Rodriguez (7th Cir. 1989) 888 F.2d 519, 527 [describing the advisements

prescribed in U.S. v. Delgado, supra, 635 F.2d 889, as ―called for as a matter of

prudence,‖ and observing that ―[l]esser (even no) warnings do not call into

question the sufficiency of the waiver so far as the Constitution is concerned‖];

Cochran, supra, 770 F.2d at p. 851.) Reviewing courts must continue to consider

18

all relevant circumstances in determining whether a jury trial waiver was knowing,

intelligent, and voluntary.4

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)

38 Cal.3d 658, 700-704 (Memro), and that his general jury waiver cannot be

understood as incorporating a knowing and intelligent surrender of his right to

a jury trial concerning the allegation.

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.

19

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, supra, 26 Cal.4th at p. 305.) There

is no additional constitutional requirement that a defendant be specifically advised

20

of the specific charges, enhancements, allegations, or other issues to which a

general jury waiver will apply. On the contrary, with a comprehensive jury waiver

such as the one entered below, absent unusual circumstances not present here

― ‗[i]t is settled 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 before the court sitting without a

jury.‘ ‖ (People v. Berutko (1969) 71 Cal.2d 84, 94 (Berutko), quoting People v.

Russell (1961) 195 Cal.App.2d 529, 532; see also People v. Jarmon (1992) 2

Cal.App.4th 1345, 1354-1355;5 see generally 6 LaFave et al., Criminal Procedure

(4th ed. 2015) § 22.1(h), p. 48 [―A jury waiver generally waives the right to a jury

determination of all of the elements of an offense, including facts that authorize a

higher sentencing range, treated as elements under the Court‘s Apprendi line of

cases‖] and cases cited.)6 Under this prevailing rule, our earlier determination that

5 As will be explained post, Memro construed two statutes as demanding

more specificity than is constitutionally required for a jury waiver concerning a

special circumstance allegation. Memro distinguished the general rule, as stated in

Berutko, as inapposite as a matter of statutory construction. (Memro, supra, 38

Cal.3d at p. 702, fn. 52.) But the added precision demanded as a matter of state

statutory law under Memro does not mean that in order to satisfy the constitutional

standard of a knowing, voluntary, and intelligent waiver of a jury trial for a special

circumstance allegation, a jury waiver colloquy must expressly reference the

allegation.

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, supra, § 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.)

21

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) 895 A.2d 927 (Schofield) and State v.

Williams (Or.Ct.App. 2005) 104 P.3d 1151 (Williams), where courts construed

previously entered jury waivers as limited to charged crimes, and not as extending

to the adjudication of additional facts that served to lengthen the defendants‘

sentences — facts that, due to the state of the law at the time the defendants

entered their jury waivers, neither they nor their counsel had reason to believe

were triable by a jury.

The defendants in both Schofield, supra, 895 A.2d 927, and Williams,

supra, 104 P.3d 1151, waived their right to a jury trial for criminal charges, were

convicted, and then were sentenced to extended terms of imprisonment premised

in part on additional findings made by the trial courts. (Schofield, at pp. 929-930;

Williams, at p. 1152.) After the United States Supreme Court issued its decision in

Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the defendants challenged

their respective sentences on the ground that the judicial fact finding that had

occurred deprived them of their Sixth Amendment right to a jury trial. In

Williams, the state responded that the defendant‘s waiver of a jury trial for the

underlying charge necessarily implied a waiver of his right to a jury trial

concerning the enhancement; a similar argument was advanced in Schofield.

(Schofield, at pp. 930-931; Williams, at p. 1152.)

Each court rejected the state‘s position. Williams, supra, 104 P.3d 1151,

emphasized that ―[a]t the time that defendant opted for a court trial, he not only

was unaware that he had a right to a jury determination of facts used to impose a

(Footnote continued on next page.)

22

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, supra, 895 A.2d 927, determined that

―[b]ecause Schofield, prior to Blakely, did not know that she had a right to have a

jury determine, beyond a reasonable doubt, any facts necessary to increase her

sentence beyond twenty years . . . her waiver extends only to the findings

necessary to determine her guilt or innocence to the charge of manslaughter. It

does not extend to findings that would serve to double the maximum sentence she

faced upon conviction.‖ (Id., at p. 931.)

Assuming, without deciding, that Schofield, supra, 895 A.2d 927, and

Williams, supra, 104 P.3d 1151, correctly construed the effects of the defendants‘

jury waivers, both cases are distinguishable. Unlike the situation in Williams, here

defendant most certainly was aware of the possibility he would receive a death

sentence. Furthermore, both Schofield and Williams involved an intervening

change in the law. In those cases defendants lacked (or were reasonably believed

to lack, under the law prior to Blakely) a legal right to a jury trial for an

enhancement or statutory aggravating findings when they entered their respective

jury waivers. The Schofield and Williams courts thus declined to construe the

defendants‘ jury waivers as forgoing a right to a jury trial that had not been

recognized at the time the waivers were entered. By contrast, because defendant,

who was represented by counsel at all pertinent times, had a right to a jury trial

with regard to the special circumstance allegation at the time he entered his jury

waiver (see § 190.4, subd. (a)), his comprehensive waiver is properly understood

as subsuming that right. And in any event, as discussed post, the trial court‘s

colloquy with defendant further demonstrates that defendant entered a knowing

and intelligent waiver of a jury trial for the special circumstance allegation.

8 The dissenting justices direct their attacks on perceived deficiencies in the

judge‘s advisements to defendant, and fail to properly account for other facts that

(Footnote continued on next page.)

23

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) 941 A.2d 686, 697 (Mallory).) Thus, in

various contexts in which we have been called upon to ascertain whether a waiver

of constitutional rights was knowing and intelligent, we have not focused

myopically on the waiver colloquy in isolation, but instead have conducted a more

comprehensive assessment of the totality of the circumstances. (See, e.g., People

v. Mosby (2004) 33 Cal.4th 353, 361; Howard, supra, 1 Cal.4th at pp. 1175-1178.)

As we have discussed, here the relevant circumstances include not only the

colloquy, but also defendant‘s prior criminal history, other events before and after

the waiver was entered, and the fact that defendant was represented by counsel.

24

and intelligent declination of a jury trial for the special circumstance allegation.

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. Defendant‘s

ensuing assent to a bench trial therefore manifested a knowing and intelligent

waiver of his jury trial right with regard to the special circumstance allegation.

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,

3 Cal.4th 495. There, in taking the defendant‘s waiver of a jury trial, the trial

court informed the defendant, ― ‗[Y]ou‘ll be giving up that right to have the jury in

two different functions. First of all, first function is to decide the question of your

guilt or innocence. Then the second function, similarly, assuming there are 12 of

them and they would unanimously agree that you were guilty, then you would

have 12 jurors who must unanimously agree as to the punishment. [¶] They have

a choice, life without the possibility of parole or death. . . . And you‘ll be giving

up that right.‘ ‖ The defendant answered, ― ‗I‘m giving it up.‘ ‖ The court then

asked the defendant if he understood that his waiver applied to ― ‗both phases . . .

of the special circumstances case.‘ ‖ The defendant assented. (Id., at p. 564.)

The defendant also told the court that he had discussed the matter ― ‗quite

thoroughly‘ ‖ with his attorney. (Id., at p. 565.)

Diaz, supra, 3 Cal.4th 495, rejected the defendant‘s argument that his

waiver was invalid, ruling instead that ―the trial court explained to defendant that

the waiver of his right to trial by jury applied to all aspects of his special

circumstances case, from beginning to end. . . . Although the trial court‘s

admonition was not a model of clarity, we believe it was sufficient to advise

defendant that his waiver, which included all aspects of guilt and penalty, included

25

within it a waiver of the right to jury trial on the truth or falsity of the special

circumstance allegation.‖ (Id., at p. 565.) Diaz reached this conclusion even

though the trial court never explained to the defendant what a ―special

circumstance‖ was, and indeed, used the term ―special circumstance‖ only in

describing the type of case that was involved. The defendant in Diaz was never

told by the judge that this ―special circumstance‖ represented a specific allegation

as to which he had a distinct jury trial right. Yet the court in Diaz nevertheless

found a valid jury waiver concerning the special circumstance allegation. Given

similar facts, the same reasoning applies here. Although the court below never

used the phrase ―special circumstance‖ in its colloquy with defendant, its

advisement communicated to defendant that his waiver of a jury trial, if entered,

would encompass the determinations that could make him subject to the death

penalty as part of a described trial process. Defendant‘s resulting jury waiver was

therefore knowing and intelligent with regard to the special circumstance

allegation.

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.)

26

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, supra, 1 Cal.4th at p. 1180,

quoting U.S. v. Sherman (9th Cir. 1973) 474 F.2d 303, 306.) The fact of the

matter is that the dissenting justices, like defendant, would require a degree of

elaboration and specificity in a jury waiver colloquy that has never been demanded

for a jury waiver to be considered knowing and intelligent under constitutional

standards.

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, 38 Cal.3d 658, reconciled the provisions of sections 190.1,

subdivision (a) and 190.4, subdivision (a). The former provides, in pertinent part, that

in the trial of a capital case, ―The question of the defendant‘s guilt shall be first

determined. If 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).) This provision suggests that the same trier of fact will determine

(Footnote continued from previous page.)

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) 661 N.E.2d 287, 297.) In the other,

Commonwealth v. O’Donnell (Pa. 1999) 740 A.2d 198, the defendant ―never

personally waived her right to have a jury determine the penalty.‖ (Id., at p. 211.)

The discussions of jury waivers in both Brown and O’Donnell must be read in

light of these distinguishing facts.

27

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, 3 Cal.4th at p. 565.)

Because the defendant in Diaz ―told the court that he had discussed the matter

‗quite thoroughly‘ with his counsel,‖ and the trial court‘s colloquy ―explained to

defendant that the waiver of his right to trial by jury applied to all aspects of his

special circumstances case, from beginning to end,‖ Diaz held that Memro was

satisfied. (Diaz, at p. 565.)

The Memro rule was construed similarly in People v. Wrest (1992)

3 Cal.4th 1088 (Wrest). There, the defendant engaged in an on-the-record

colloquy with the prosecutor. In this colloquy, the prosecutor mentioned the terms

―special circumstances‖ or ―special allegations‖ several times, ultimately asking

the defendant, ― ‗In other words, you don‘t want a jury trial on the issue of guilt or

the special circumstances or the enhancements, right?‘ ‖ to which the defendant

28

answered, ― ‗Yes.‘ ‖ (Id., at pp. 1103-1104, italics omitted.) Wrest found that the

record reflected an ―express and personal understanding and waiver of [the

defendant‘s] right to a jury trial on the special circumstance allegations,‖

observing that ―[t]he mere fact that the prosecutor‘s questions combined issues of

guilt, special circumstances, and enhancements did not vitiate the waiver.‖ (Id., at

p. 1104.) In finding no error under Memro, Wrest disapproved three Court of

Appeal decisions10 to the extent that they might have been read to require a

specific procedure for complying with Memro. (Wrest, at pp. 1104-1105.) Wrest

explained that Memro does not demand ―that a defendant‘s waiver of his jury-trial

right on special circumstance allegations be taken in accordance with a prescribed

ritual, e.g., a separate interrogation of defendant about his special circumstance

jury trial rights as distinct from his other jury trial rights. . . . [Memro] simply

requires that a valid waiver of the jury-trial right on a special circumstance

actually cover the special circumstance. It does not require such a waiver to be

taken in accordance with any particular procedure.‖ (Wrest, at p. 1105; see also

Weaver, supra, 53 Cal.4th at pp. 1074-1075; Scott, supra, 15 Cal.4th at p. 1208.)

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, 3 Cal.4th 1088, that Memro ―simply requires that a

valid waiver of the jury-trial right on a special circumstance actually cover the

special circumstance.‖ (Wrest, at p. 1105.) Arguably, our conclusion that the trial

court secured a constitutionally adequate waiver of a jury trial concerning the

10 Specifically, Wrest disapproved People v. Moreno (1991) 228 Cal.App.3d

564, 571-572, People v. Gastile (1988) 205 Cal.App.3d 1376, 1380-1381, and

People v. Sandoval (1987) 188 Cal.App.3d 1428, 1431. (Wrest, supra, 3 Cal.4th

at pp. 1104-1105.)

29

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, supra, 38 Cal.3d 658.

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) 386 U.S. 58, 62 [―when . . . state standards alone

have been violated, the State is free . . . to apply its own state harmless-error rule

to such errors of state law‖].) The California Constitution imposes upon this court

an obligation to conduct ―an examination of the entire cause‖ and reverse a

judgment below for error only upon determining that a ―miscarriage of justice‖ has

occurred. (Cal. Const., art. VI, § 13.) This provision informs the general rule in

this state that to obtain reversal of the judgment based on a violation of a state

statute, a defendant must demonstrate that it is ―reasonably probable that a result

more favorable to [the defendant] would have been reached in the absence of the

error.‖ (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)

30

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) 478 U.S. 570, 578; see also People v. Marshall

(1996) 13 Cal.4th 799, 851 [―[t]here is a strong presumption any error‖ is

susceptible to harmless error analysis].) In determining whether a federal

constitutional error qualifies as structural, courts ―ask whether the error rendered

the trial ‗fundamentally unfair or an unreliable vehicle for determining guilt or

innocence‘ (Neder [v. United States (1999) 527 U.S. 1, 9]), or whether the effect

of the error is ‗necessarily unquantifiable and indeterminate‘ (Sullivan [v.

Louisiana (1993) 508 U.S. 275, 282]).‖ (People v. Aranda (2012) 55 Cal.4th 342,

366, italics omitted.) The fact that an error implicates important constitutional

rights does not necessarily make it structural. ―Many statutes . . . set out

procedures designed to protect constitutional principles. Broadly construed, many

of these procedural statutes may be said to protect due process and other

constitutional safeguards. Nevertheless, most procedural shortcomings constitute

trial error‖ and not structural error. (People v. Anzalone (2013) 56 Cal.4th 545,

555-556 (Anzalone).) The ―miscarriage of justice‖ language within article VI,

section 13 of the California Constitution likewise contemplates a limited class of

structural errors, consisting of ― ‗[t]he kinds of errors that, regardless of the

evidence, may result in a ―miscarriage of justice‖ because they operate to deny a

criminal defendant the constitutionally required ―orderly legal procedure‖ (or, in

other words, a fair trial) — for example, the denial of the defendant‘s right to a

jury trial or to an impartial trial judge [citation] — [and] all involve fundamental

―structural defects‖ in the judicial proceedings . . . .‘ ‖ (People v. Alexander

(2010) 49 Cal.4th 846, 896.)

31

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, 71 Cal.2d at page 94, cannot reasonably be read in the manner

suggested by Justice Cuéllar. The language conveys that a criminal defendant has

a right to a jury trial regarding a special circumstance allegation; reading it

together with the language in section 190.1, subdivision (a), the court in Memro,

supra, 38 Cal.3d 658 also determined that it conveyed a right to a separate waiver.

(Id., at pp. 700-704.) It does not follow from the statutory language, however, that

a deviation from the procedure recognized in Memro constitutes a structural error,

and there is no indication whatsoever that the Legislature or electorate saw it as

such.

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.

32

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, 38 Cal.3d at p. 704.) For this

reason, Memro did not need to and did not determine the consequences of a judge‘s

failure to elicit a sufficiently specific jury waiver for the trial of a special

circumstance allegation. (Id., at pp. 704-705.) Yet Memro never suggested that a

failure to obtain such a waiver would fall into the rare class of mistakes that are

reversible per se. And indeed, every Court of Appeal that has detected the type of

error described in Memro has applied a form of harmless error analysis to the mistake,

rather than finding it reversible per se. (People v. Moreno, supra, 228 Cal.App.3d at

p. 579; People v. Gastile, supra, 205 Cal.App.3d at pp. 1383-1384; People v. Granger

(1980) 105 Cal.App.3d 422, 428-429.)

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, 527 U.S. at p. 9.)

Nor are the effects of this lapse ―necessarily unquantifiable and indeterminate.‖

(Sullivan v. Louisiana, supra, 508 U.S. at p. 282.) On the contrary, we are more than

capable of scrutinizing the record to ascertain whether it reveals a reasonable

probability that defendant would have demanded a jury trial for the special

circumstance allegation, had no Memro error occurred.

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.

33

Martinez (2013) 57 Cal.4th 555, 559 (Martinez); People v. Superior Court (Zamudio)

(2000) 23 Cal.4th 183, 192 (Zamudio)); whether a defendant would have accepted a

plea bargain offered by the prosecution had his or her attorney provided effective

assistance of counsel (In re Alvernaz (1992) 2 Cal.4th 924, 937); and whether an

unrepresented defendant would have invoked the right to counsel had he or she been

readvised of this right upon arraignment after the preliminary examination, as is

required under section 987, subdivision (a) (People v. Crayton (2002) 28 Cal.4th 346,

365 (Crayton)).

Martinez, supra, 57 Cal.4th 555, is instructive concerning the nature of this

type of review. Previously, we had determined in Zamudio, supra, 23 Cal.4th 183,

that where a trial court fails to supply the advisement required under section 1016.5

regarding the immigration consequences of a guilty or no contest plea and the

defendant shows that his or her conviction may result in adverse immigration

consequences, the court, on the defendant‘s motion, must vacate the judgment and

allow the defendant to withdraw the plea — provided, however, the defendant also

could show prejudice by establishing that ―it was reasonably probable he or she would

not have pleaded guilty if properly advised.‖ (Martinez, at p. 559, citing Zamudio, at

p. 210.) Martinez considered ―whether a court ruling on a motion to vacate pursuant

to section 1016.5 may deny relief, for lack of prejudice, if it concludes the defendant

would not have obtained a more favorable outcome had he or she chosen not to plead

guilty or nolo contendere.‖ (Martinez, at p. 559.) It determined that ―because the

question is what the defendant would have done, relief should be granted if the court,

after considering evidence offered by the parties relevant to that question, determines

the defendant would have chosen not to plead guilty or nolo contendere, even if the

court also finds it not reasonably probable the defendant would thereby have obtained

a more favorable outcome.‖ (Ibid.)

34

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, 46 Cal.2d at page 836, and the defendant bears the burden of showing

that he or she would have acted differently had the error not occurred. (Martinez,

supra, 57 Cal.4th at p. 562.) This assignment of the burden can be important, as it

was in People v. McClellan (1993) 6 Cal.4th 367. McClellan considered a trial

court‘s failure to advise the defendant that his guilty plea would make him subject to

registration as a sex offender under section 290. (McClellan, at p. 372.) On appeal,

the defendant in McClellan argued that the error automatically entitled him to

withdraw from the plea agreement. (Id., at p. 374.) Although this court agreed with

the defendant that an error occurred under state law (id., at p. 376), it disagreed

regarding the resulting remedy. McClellan concluded that the defendant bore the

burden of showing he would have made a different decision with a proper advisement,

and determined that he had not met that burden: ―Although defendant alleges that had

he been properly advised, he would not have entered his plea of guilty, there is

nothing in the record on appeal to support this contention. Thus, we conclude

defendant has failed to meet his burden of establishing prejudice.‖ (Id., at p. 378.)

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) 12 Cal.4th 1,12 where this court evaluated whether a defendant was

prejudiced by an error in advisement by considering whether the defendant still would

12 People v. Sanchez, supra, 12 Cal.4th 1, was disapproved on another ground

in People v. Doolin (2009) 45 Cal.4th 390, 421, footnote 22.

35

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) 200 Cal.App.3d 1026, 1033.) Applying the Watson

―reasonably probable‖ standard of review to this omission, Sanchez found insufficient

indicia of prejudice. (Sanchez, at p. 30.) The defendant knew that he faced a possible

death sentence if convicted, it was noted. (Ibid.) Furthermore, Sanchez observed, ―It

is clear from the record that defendant would have waived his right to a jury trial and

insisted on the submission of the guilt phase on the preliminary hearing transcripts

even if he was specifically told by the court that he faced a possible death sentence.‖

(Id., at p. 31.)

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) 559 F.3d 607, for example, faced with a jury waiver that did not

comply with the requirements of rule 23(a) of the Federal Rules of Criminal

Procedure (18 U.S.C.) the court declined to characterize the error as structural. It

instead ascertained that ―for purposes of determining whether the waiver was, in fact,

invalid, one can determine whether the defendant adequately understood his right to a

jury; moreover, if the defendant lacked such an understanding, one can assess the

likelihood that he would have stood on his right to a jury had he been properly

admonished of his right.‖ (U.S. v. Williams, at p. 614.) Later, the court in U.S. v.

Williams reiterated that, having failed to raise a timely objection to the allegedly

36

inadequate waiver procedure, the defendant ―must show that he did not have a

concrete understanding of his right to a jury and that it is reasonably probable that he

would not have waived a jury had he had such an understanding.‖ (Id., at p. 616.)

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) 760 N.W.2d 451, for example, the defendant‘s

written jury waiver did not discuss any of the specific elements of the jury trial right,

and there was no record of any waiver colloquy between the trial court and the

defendant. (Id., at p. 452.) The defendant in Keller pressed an ineffective assistance

of counsel claim, asserting that her counsel provided constitutionally inadequate

assistance by not ensuring a knowing and adequate waiver. (Ibid.) In describing the

defendant‘s burden of showing prejudice, the Keller court explained that she ―must

prove by a preponderance of the evidence that, but for counsel‘s failure to assure

compliance with the rule, she would not have waived her right to a jury trial.‖ (Id., at

p. 453.) In Illinois, prejudice from the deficient performance of counsel in connection

with a jury waiver is assessed by reference to ―whether there exists a reasonable

likelihood that the defendant would not have waived his jury right in the absence of

the alleged error.‖ (People v. Maxwell (Ill. 1992) 592 N.E.2d 960, 973.) And in

Mallory, supra, 941 A.2d 686, the Pennsylvania Supreme Court rejected the

petitioner‘s argument that counsel‘s alleged ineffective assistance in connection with

a jury waiver amounted to structural error. Mallory concluded instead that ―to prove

trial counsel ineffective . . . . appellant must show that his understanding of the

written [jury] waiver was constitutionally impaired by his lawyer‘s deficient

performance, as well as proof that he would have elected a jury but for his lawyer‘s

performance.‖ (Id., at p. 702; see also Taylor v. Horn (3d Cir. 2007) 504 F.3d 416,

450 [observing that a habeas corpus petitioner had not shown that he was prejudiced

37

by the denial of his jury trial right because he ―never asserted that he would have

elected [a jury], had he known of the option‖].)13

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, supra, 26 Cal.4th 297.

There, in taking the defendant‘s jury waiver, the judge advised him that he would

receive ―some benefit‖ by forgoing a jury trial. (Id., at p. 302.) Collins regarded this

inducement as violating the defendant‘s federal constitutional rights, because it meant

that his ensuing waiver of a jury trial could not be understood as voluntary. (Id., at

pp. 309, 311.) This error, Collins determined, was structural, in the same manner as

the outright refusal to provide any jury trial would be. (Id., at p. 312.)

13 In another case decided the same year as Mallory, the Pennsylvania

Supreme Court applied a similar mode of analysis in addressing a jury waiver

issue presented on direct appeal. In Commonwealth v. Houck (Pa. 2008) 948 A.2d

780, the defendant claimed to have been misled by the trial court‘s misadvisement

regarding the range of sentences that could adhere upon conviction. (Id., at

pp. 785-786.) The court was ―persuaded that the voluntariness of a jury waiver

can be undermined where the defendant is informed of a range of potential

sentences at a jury waiver colloquy that is less than the sentence eventually

imposed.‖ (Id., at p. 788.) The court also determined, however, ―that if a

defendant seeks to invalidate an otherwise valid jury waiver based on a trial

court‘s recitation of his or her potential sentence, the defendant should be required

to demonstrate that his or her understanding of the length of the potential sentence

was a material factor in making the decision to waive a jury trial.‖ (Ibid.)

38

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, 46 Cal.2d at page 836.

(Anzalone, at pp. 555, 560.) Likewise, in Crayton, supra, 28 Cal.4th at page 364, we

identified the requirement that an unrepresented defendant be readvised of his or her

right to counsel upon being arraigned on an information after a preliminary

examination (§ 987, subd. (a)) as a ―prophylactic safeguard‖ that protects the right to

counsel. Yet we determined that a failure to readvise a defendant amounted to

statutory error, not federal constitutional error, and reviewed the error for prejudice

under the Watson standard. (Crayton, at pp. 365-366; see also People v. Vera (1997)

15 Cal.4th 269, 276, 278 [distinguishing between the forfeiture rules applicable to

constitutional rights and those applicable to statutory rights].)14

14 Other jurisdictions recognize a similar distinction. Within the specific

context of jury waivers, an abundant body of precedent distinguishes between a

failure to comply with statutory rules, or other rules of procedure with the force of

law, that prescribe how a jury waiver is to be taken; and a failure to obtain a

knowing, intelligent, and voluntary jury waiver. (See, e.g., U.S. v. Leja (1st Cir.

2006) 448 F.3d 86, 93 [concluding that a jury waiver that does not comply with

Federal Rule of Criminal Procedure 23(a) (18 U.S.C.) may nevertheless be valid];

(Footnote continued on next page.)

39

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) 61 Cal.4th 1160, in which errors of state

law were treated as structural. In Blackburn, this court classified as reversible per se a

failure to obtain any personal jury waiver at all from a defendant in a civil

commitment proceeding. (Id., at pp. 1133-1134.) Tran similarly cast as structural

error the absence of a personal jury waiver from a defendant prior to proceedings to

extend his involuntary commitment after pleading not guilty by reason of insanity to a

(Footnote continued from previous page.)

U.S. v. Robertson, supra, 45 F.3d at p. 1431 [same]; State v. Feregrino (Iowa

2008) 756 N.W.2d 700, 707-708 [ruling that a failure to comply with a state rule

of criminal procedure providing that a jury waiver must be in writing and on the

record, does not, by itself, constitute structural error]; State v. Redden, supra, 487

S.E.2d at p. 327 [determining that a failure to comply with a state law requirement

of a written jury waiver does not, by itself, invalidate a defendant‘s jury waiver];

People v. Mosly (Mich.Ct.App. 2003) 672 N.W.2d 897, 901 [concluding that a

failure to comply with Michigan statutory law in connection with a jury waiver

does not require reversal if the ―defendant nonetheless understood that he had a

right to a trial by jury and voluntarily chose to waive that right‖].)

15 As we discuss post, defendant entered a knowing and intelligent jury

waiver as to the penalty phase, as he did for all other components of his trial.

40

criminal offense. (Tran, at p. 1163.) In those decisions, this court‘s view of the

absence of a personal jury waiver in commitment proceedings as a structural error

found support in prior decisions treating a comparable absence of a personal jury

waiver in a criminal proceeding as a structural defect. (People v. Ernst, supra,

8 Cal.4th at pp. 444-449; Holmes, supra, 54 Cal.2d at pp. 443-444; see Cal. Const.,

art. I, § 16.)

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) 59 A.3d 949, 955

(Fortune) the trial court failed to take any waiver of a jury trial from the defendant

before proceeding to a bench trial of a charged crime — an error of constitutional

dimensions.16 Other cases that defendant relies upon, meanwhile, either did not

16 The dissenting justices regard Fortune, supra, 59 A.3d 949, as being on

point. (Conc. & dis. opn. of Liu, J., post, at pp. 15-16; conc. & dis. opn. of

Cuéllar, J., post, at p. 15.) This position, however, follows from their incorrect

(Footnote continued on next page.)

41

involve a personal jury waiver by the defendant (e.g., State v. Hauk (Wis.Ct.App.

2002) 652 N.W.2d 393, 403-404) or addressed a perceived failure to secure a

knowing and intelligent waiver of the right to a jury trial (e.g., Duarte-Higareda,

supra, 113 F.3d at p. 1003) — errors that, as we have explained, differ from the one

involved here in their magnitude and their susceptibility to harmless error analysis.

Nor does State v. Little (Minn. 2014) 851 N.W.2d 878 (Little) support

defendant‘s position that the mistake here defies harmless error analysis. In Little, the

prosecution added a new charge after defendant entered a jury waiver. (Id., at p. 881.)

The Little court concluded that the earlier waiver did not necessarily encompass the

later-added charge. (Id., at p. 883.)17 The court nevertheless conducted harmless

error review and found the error prejudicial. (Id., at p. 886.) In finding prejudice, the

(Footnote continued from previous page.)

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, supra, 851 N.W.2d 878,

observed that entering a jury waiver, ― ‗[a]ll that [a] defendant waive[s] [is] a jury

trial of the issues then formed, and not of any and all other issues that might

possibly be thereafter formed under amended pleadings, and which he could not

anticipate.‘ ‖ (Id., at p. 883.) This principle is not pertinent to this case.

42

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) 310 F.3d 600, a

federal habeas corpus case, in which a jury waiver was entered by the petitioner‘s

counsel. (Id., at pp. 601-602.) The petitioner testified at an evidentiary hearing that

his attorney never explained the right to a jury trial to him, and ―that he would have

insisted upon a jury trial had he known he had the right to make such a decision.‖

(Id., at p. 602.) The prosecution argued that the petitioner could not show prejudice

because he could not establish that a jury would have reached a verdict different from

the one that resulted from the petitioner‘s bench trial. (Id., at p. 604.) The court

determined that the attorney‘s complete failure to counsel his client regarding a jury

trial constituted ineffective assistance under the Sixth Amendment to the United

States Constitution, and ―presumed‖ that prejudice resulted from this ―structural‖

error. (Miller, at p. 604.) Thus, Miller also involved constitutional error, not statutory

error under state law, the petitioner had made a showing of prejudice, and the court‘s

characterization of the error before it as structural connoted its rejection of a form of

harmless error analysis that we do not endorse here. Significantly, after Miller was

43

decided, that same federal appellate circuit rejected another federal habeas corpus

petitioner‘s claim of ineffective assistance of counsel in connection with a jury waiver

on the ground that the petitioner had ―not established that he would have insisted on a

jury trial in any event.‖ (Nelson v. Hvass (8th Cir. 2004) 392 F.3d 320, 324.)

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, 57 Cal.4th at p. 558, italics omitted), not what we

believe he should have done (id., at p. 562, italics omitted). As we explain, on this

record we conclude that defendant has not shown that there is a reasonable probability

that, had the trial judge expressly referenced the special circumstance allegation in the

waiver colloquy or otherwise sought a separate waiver regarding the allegation,

defendant would have refused to enter such a waiver, and instead would have sought a

jury trial for this aspect of his case. (See Watson, supra, 46 Cal.2d at p. 836.)

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

44

have done (see Martinez, supra, 57 Cal.4th at p. 564), we perceive nothing in the

nature of the allegations or the proof at trial that suggests a basis for seeking a

decision maker for the special circumstance allegation different from the one who

would decide the charged crimes and penalty. The proof of the special circumstance

allegation was overwhelming, and overlapped with the evidence establishing

defendant‘s guilt of felony murder.

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

45

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) 43 P.3d 1042, 1048-1049.)

(Footnote continued on next page.)

46

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, supra, 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) 372 F.3d 821, 834-836 [finding a constitutionally effective jury

waiver notwithstanding a failure to advise the defendant that a jury‘s decision to

recommend the death penalty had to be unanimous]; State v. Foust (Ohio 2006)

823 N.E.2d 836, 851-852 [finding a knowing and intelligent jury waiver in a

(Footnote continued from previous page.)

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) 716 N.E.2d 1126, 1135.) We consider

the latter approach more consistent with the touchstone principles that whether a

waiver is knowing and intelligent is to be ascertained by reference to the totality of

the relevant circumstances, and that ―the law ordinarily considers a waiver

knowing, intelligent, and sufficiently aware if the defendant fully understands the

nature of the right and how it would likely apply in general in the

circumstances — even though the defendant may not know the specific detailed

consequences of invoking it.‖ (United States v. Ruiz (2002) 536 U.S. 622, 629

[discussing a waiver of rights attendant to the entry of a guilty plea].)

47

capital case even though the defendant was not advised that a jury‘s vote for a

death sentence must be unanimous].)19

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, supra, 44 Cal.4th 983, the first trial of a capital case resulted

in a mistrial at the penalty phase when the jury was unable to reach a verdict.

Upon retrial, the defendant waived his right to a jury, and the trial court returned a

verdict of death. (Id., at p. 989.) On appeal, the defendant argued that permitting

him to waive a jury for the penalty phase retrial violated section 190.4, subdivision

(b) as well as his constitutional rights. (Hovarter, at p. 1024.) Section 190.4,

subdivision (b), provides, ―If 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 by the defendant and the people, in which case the trier of fact shall be the

court. 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. [¶] If the trier of fact

is a jury and has been unable to reach a unanimous verdict as to what the penalty

shall be, the court shall dismiss the jury and shall order a new jury impaneled to

try the issue as to what the penalty shall be. If such new jury is unable to reach a

unanimous verdict as to what the penalty shall be, the court in its discretion shall

19 Justice Liu also asserts that the colloquy misadvised defendant that he

could not seek a bench trial for the guilt phase of trial, but a jury trial for the

penalty phase of trial. (Conc. & dis. opn. of Liu, J., post, at pp. 22-23.) We do not

believe that the colloquy is reasonably susceptible to this interpretation.

48

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, supra, 44 Cal.4th 983, as

announcing a rule that the trial court must reaffirm the defendant‘s jury trial

waiver at the outset of the penalty phase of all capital trials, regardless of whether

an initial jury waiver entered prior to the guilt phase incorporated an adequate

waiver of the jury trial right for the penalty phase. This view misreads Hovarter.

There, our discussion of the inadequacy of ―a single jury waiver given early in the

trial process‖ presupposed a jury waiver as to the guilt phase only. (Id., at

49

pp. 1026-1027.) When a pretrial jury waiver encompasses the penalty phase of a

trial, as the waiver here did, there is no need for reaffirmation of the waiver as

extending to the penalty phase before that later stage of trial proceedings.

The more relevant precedent here is Diaz, supra, 3 Cal.4th 495, which held

that a pretrial waiver of the right to a jury trial sufficed to waive a jury trial on a

special circumstance allegation and penalty determination where ―the trial court

explained to defendant that the waiver of his right to trial by jury applied to all

aspects of [the defendant‘s] special circumstances case, from beginning to end.‖

(Id., at p. 565; see id., at pp. 570-571.) Similarly, here the trial judge expressly

distinguished between the guilt and penalty phases of a capital trial in his

advisement prior to taking defendant‘s jury waiver, and asked defendant whether

he agreed to waive his ―right to a jury trial and agree that this Court, alone, will

make those decisions.‖ (Italics added.) The trial court‘s advisement was

sufficient to make defendant ―aware that the waiver applie[d] to each of these

aspects of trial.‖ (Id., at p. 565.) No reaffirmation of the waiver before the start of

the penalty phase was required in Diaz; nor was it here.

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

50

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) 26 Cal.4th 1100, 1133.) Yet ―the proper admission of evidence under

factor (b) is not based on the abstract, definitional nature of the offense, but on the

conduct it involves.‖ (People v. Delgado (2016) 2 Cal.5th 544, 583; see also

People v. Thomas (2011) 52 Cal.4th 336, 363.)

―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) 30 Cal.4th 705, 720; see also People v.

Delgado, supra, 2 Cal.5th at pp. 588-590.) Similarly, ―whether the prosecution‘s

proposed evidence in aggravation was an actual crime‖ is a legal question.

(People v. Taylor (2010) 48 Cal.4th 574, 656.)

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

51

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

52

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) 46 Cal.3d 432, 448.) ― ‗When evidence has

been erroneously received at the penalty phase, this court should reverse the death

sentence if it is ―the sort of evidence that is likely to have a significant impact on

the [sentencer‘s] evaluation of whether defendant should live or die.‖ ‘ ‖ (People

v. Hamilton (2009) 45 Cal.4th 863, 917.) Here, we have a clear indication of the

sentencer‘s decisionmaking process because the trial court stated on the record the

aggravating and mitigating evidence it considered in reaching its decision.

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

53

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‖

54

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) 16 Cal.4th 806,

814-815.) ―The central requirement . . . is an attempt to deter an executive officer

from performing his or her duties imposed by law; unlawful violence, or a threat

of unlawful violence, is merely the means by which the attempt is made.‖ (Id., at

p. 815.) Accordingly, a violation of section 69 through a threat ―requires a

specific intent to interfere with the executive officer‘s performance of his duties.‖

(People v. Gutierrez (2002) 28 Cal.4th 1083, 1153 (Gutierrez).) ―[A] present

ability to carry out threats is not required if . . . the target of the threat could

reasonably fear retaliatory action on some future occasion.‖ (People v. Hines

(1997) 15 Cal.4th 997, 1060 (Hines).)

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

55

are clearly distinguishable for other reasons. (See People v. Rodrigues (1994)

8 Cal.4th 1060, 1169-1170 [although ―defendant verbally abused [correctional

officer] and threatened to ‗kick [his] ass,‘ ‖ Attorney General declined to argue on

appeal that this constituted a criminal threat]; People v. Tuilaepa (1992) 4 Cal.4th

569, 590 [noting defendant‘s reliance on the ―general notion that abusive and

even threatening language does not violate a penal statute‖]; People v. Pinholster

(1992) 1 Cal.4th 865, 961-962 [defendant‘s statement to sheriff in county jail that

―if he were not sent to state prison he would ‗go out on the streets and do

something to get back in‘ ‖ was ―arguably inadmissible‖], disapproved on another

ground in People v. Williams (2010) 49 Cal.4th 405, 459; People v. Silva (1988)

45 Cal.3d 604, 636 [where defendant told officer that ―he would kill the first

police officer to step inside his cell if he was not permitted to visit with his wife,‖

Attorney General conceded erroneous admission but argued it was harmless];

People v. Coleman (1988) 46 Cal.3d 749, 787-788 [though it was ―not clear‖ that

defendant‘s threat to correctional officer constituted criminal activity, defendant‘s

claim was forfeited because he failed to object].) Defendant fails to identify any

case squarely holding that statements akin to those he made to Officer Gomez fall

outside the scope of section 69.

As defendant recognizes, ―threats must be placed and understood in their

context.‖ (People v. Iboa (2012) 207 Cal.App.4th 111, 119.) Here, the trial court

could have reasonably inferred from defendant‘s comments that he sought to use a

threat of future violence ―to interfere with [Officer Gomez]‘s performance of his

duties‖ (Gutierrez, supra, 28 Cal.4th at p. 1153), namely, Gomez‘s task of telling

defendant he had been reassigned to an isolation unit. When Gomez explained

that defendant was being moved to isolation, defendant repeatedly yelled the ―I‘ll

remember you‖ statement while standing three feet away from Gomez with his

fists clenched in a ―combative stance‖ that Gomez perceived as ―very hostile.‖

56

Defendant thereby ―underscored his words with action,‖ and ―[h]is conduct gave

context to his threatening speech.‖ (Iboa, supra, at p. 120; see ibid. [concluding

that defendant‘s ―threatening statements, combined with his physical conduct of

pacing, clenching his fists, showing off his gang tattoos, and aggressively

approaching [a firefighter], constituted the type of threat of unlawful violence

section 69 prohibits‖]; see also Hines, supra, 15 Cal.4th at pp. 1059-1060 [where

defendant told correctional officer attempting to restrain him that the officer

―would be sorry [he] ever saw‖ him, ―the jury could reasonably infer that the

purpose of this threat was to prevent [the officer] from restraining defendant‖].)

Accordingly, the trial court did not err in admitting and considering defendant‘s

statements under section 190.3, factor (b) as a violation of section 69.

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

57

penalty phase closing argument referenced People v. Turner (1990) 50 Cal.3d 668

and People v. Johnson (1992) 3 Cal.4th 1183 (Johnson), in which we held that

evidence that a defendant had been released from felony incarceration shortly

before the commission of charged crimes was admissible under section 190.3,

factor (a). (Turner, at pp. 713-714; Johnson, at p. 1243 [―[t]hat defendant

committed [the present] crimes only six days after his release from prison on a

prior homicide conviction supports the inference that incarceration had failed to

change his violent character. The jury could properly consider this inference in

determining his sentence‖].)

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) 39 Cal.4th 970, 1052; Johnson, supra, 3 Cal.4th

at p. 1243.)20

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.

58

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) 53 Cal.4th 1181, 1224-1225.)

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) 48 Cal.4th 158, 213 (Mills).)

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) 55 Cal.4th 82, 180 (Valdez).)

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, 48 Cal.4th at p. 214.)

Section 190.3, factor (k) is not unconstitutionally vague. (Weaver, supra,

53 Cal.4th at p. 1092.)

The relative culpability of codefendants is not a constitutionally required

mitigating factor. (People v. Maciel (2013) 57 Cal.4th 482, 549.)

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) 59 Cal.4th 1113, 1207 (Banks).)

59

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) 48 Cal.4th 347, 407); and the sentencer is not

instructed to presume that life without possibility of parole is the appropriate

sentence (Valdez, at p. 179).

The trial court was not required to make written findings before reaching its

sentencing decision. (People v. Mendoza (2011) 52 Cal.4th 1056, 1097.)

Neither the Eighth Amendment nor the Fourteenth Amendment to the

federal Constitution, nor international law, mandates the use of intercase

proportionality review. (Banks, supra, 59 Cal.4th at p. 1207.) Nor does the

California death penalty sentencing scheme violate equal protection for failing to

provide certain procedural safeguards present in noncapital cases; as we have

explained, ―[t]he two groups of defendants are not similarly situated.‖ (People v.

Johnson (2016) 62 Cal.4th 600, 657.)

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, supra, 62 Cal.4th at p. 658.)

60

III. CONCLUSION

We affirm the judgment in its entirety.

CANTIL-SAKAUYE, C. J.

WE CONCUR:

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

KRUGER, J.

61

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) 38 Cal.3d 658, 703 (Memro)

[― ‗The fact or set of facts to be found in regard to the special circumstance is no

less crucial to the potential for deprivation of liberty on the part of the accused

than are the elements of the underlying crime . . . .‘ ‖].) The special circumstance

allegation in this case was that the murder was committed during the commission

of a robbery. (Pen. Code, § 190.2, subd. (a)(17)(A); all undesignated statutory

references are to this code.)

A criminal defendant is constitutionally entitled to a jury trial on the truth

of a special circumstance allegation. (See Ring v. Arizona (2002) 536 U.S. 584,

609; People v. Prieto (2003) 30 Cal.4th 226, 256–257.) A defendant may waive a

jury trial, but as a constitutional matter, a trial court may not accept a voluntary

waiver ―unless it is knowing and intelligent, that is, ‗ ― ‗made with a full

awareness both of the nature of the right being abandoned and the consequences of

the decision to abandon it.‘ ‖ ‘ ‖ (People v. Collins (2001) 26 Cal.4th 297, 305

(Collins); see Moran v. Burbine (1986) 475 U.S. 412.) In addition, the Penal Code

provides: ―The trier of fact shall make a special finding that each special

circumstance charged is either true or not true. . . . [¶] If the defendant was

convicted by the court sitting without a jury, the trier of fact 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) (section 190.4(a)).) In Memro, we held that

under section 190.4(a) ―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, supra, 38 Cal.3d at p. 704.) In this case, defendant Vaene

Sivongxxay was denied a jury trial on the special circumstance allegation in

violation of these constitutional and statutory guarantees. This unlawful denial of

a jury trial is a structural error requiring automatic reversal.

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, supra, 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

2

―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, supra, 38 Cal.3d at p. 704.) The Legislature, recognizing

the gravity of a special circumstance allegation, expressly mandated a jury trial

unless the defendant forgoes it specifically through a separate waiver. What is left

of this requirement if, upon proof of a violation, the burden is on the defendant to

show he would have wanted a jury trial had the trial court not violated the statute?

Here, as in People v. Blackburn (2015) 61 Cal.4th 1113, 1131 (Blackburn) and

People v. Tran (2015) 61 Cal.4th 1160, 1169 (Tran), ―[t]he statute does not

require the defendant to affirmatively show he or she wanted a jury trial; a jury

trial is the default procedure absent a personal waiver.‖ When a statute expressly

guarantees a jury trial on a specific matter unless the defendant waives a jury trial

on that matter, the deprivation of a jury trial without a waiver on that matter is a

―miscarriage of justice‖ that requires automatic reversal. (Cal. Const., art. VI,

§ 13; see Blackburn, at p. 1136; Tran, at p. 1169.)

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.

3

Louisiana (1968) 391 U.S. 145, 156.) I would not have thought that such a

fundamental right — what Justice Scalia called ―the spinal column of American

democracy‖ (Neder v. United States (1999) 527 U.S. 1, 30 (conc. & dis. opn. of

Scalia, J.)) — could be so easily relinquished or, more accurately, wrested from a

criminal defendant by the very institution whose potential for overreach the right

is meant to protect against. ―The guarantees of jury trial in the Federal and State

Constitutions reflect a profound judgment about the way in which law should be

enforced and justice administered. . . . Fear of unchecked power, so typical of our

State and Federal Governments in other respects, found expression in the criminal

law in this insistence upon community participation in the determination of guilt

or innocence.‖ (Duncan, at pp. 155–156.) Today‘s decision breaks faith with this

constitutional judgment and undermines an important safeguard of California‘s

death penalty scheme.

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) 31 Cal.4th 518, 534; People v. Duarte (2000) 24 Cal.4th 603, 610.)

Perhaps this is because the court‘s overall approach to the jury trial waiver on the

special circumstance allegation flows from its conviction that the waiver was

knowing and intelligent. This conviction, however, finds no support in the law or

the record before us.

The court cites People v. Berutko (1969) 71 Cal.2d 84 (Berutko) for the

proposition that a defendant who ― ‗waives a jury trial . . . is deemed to have

consented to a trial of all of the issues in the case before the court sitting without a

4

jury.‘ ‖ (Id. at p. 94.) Under Berutko, the court says, the finding that

Sivongxxay‘s guilt phase waiver 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.‖ (Maj. opn., ante, at

p. 22.) But a glance at Berutko makes clear that this is a stretch.

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, 71 Cal.2d at p. 94.) The statutory nature

of Berutko‘s holding was confirmed in Memro, where we found Berutko

―inapposite‖ to interpreting section 190.4. (Memro, supra, 38 Cal.3d at p. 702,

fn. 52.) Berutko never discussed whether the jury trial waiver in that case was

knowing or intelligent as a constitutional matter. (See Loeffler v. Target Corp.

(2014) 58 Cal.4th 1081, 1134 [― ‗ ―cases are not authority for propositions not

considered‖ ‘ ‖].) Indeed, Berutko‘s entire analysis of the waiver issue consisted

of just three sentences: The first said, ―This contention is without merit,‖ and the

other two quoted Court of Appeal opinions addressing jury trial waivers only in

the context of prior conviction allegations. (Berutko, at p. 94.) Berutko is not

authority for a ―general rule‖ applicable to a special circumstance allegation in a

capital trial.

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

5

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 . . . .‖

6

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) 3 Cal.4th 495 (Diaz), but that

case is easily distinguished. The colloquy in Diaz expressly mentioned the special

circumstance. (Id. at p. 564 [trial judge asked Diaz whether he understood that his

waiver applied to ― ‗both phases . . . of the special circumstanceS case‘ ‖].)

Further, the record showed that Diaz told the court he had discussed the matter

― ‗quite thoroughly‘ ‖ with his attorney. (Id. at p. 565.) The case before us does

not involve ―similar facts.‖ (Maj. opn., ante, at p. 26.)

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) 6 Cal.4th 457, 468 (Bacigalupo); see People v. Garcia (1984)

36 Cal.3d 539, 552 [―special circumstances are sui generis — neither a crime, an

enhancement, nor a sentencing factor‖].) As noted, the ultimate test is whether a

7

waiver was made ― ‗ ― ‗with a full awareness both of the nature of the right being

abandoned and the consequences of the decision to abandon it.‘ ‖ ‘ ‖ (Collins,

supra, 26 Cal.4th at p. 305.) The point of a waiver colloquy, however phrased, is

to inform the defendant that he is entitled to a jury trial on a separate allegation

that makes him eligible for the death penalty. The trial court‘s failure in this case

to even mention the special circumstance allegation is surely probative of whether

Sivongxxay‘s jury waiver on that allegation was knowing and intelligent.

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, supra, 6 Cal.4th at p. 468.)

And what ―other events before and after the waiver was entered‖ is the court

referring to?

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) 61 Cal.4th 609, 636 (Cunningham) [upholding waiver where

defendant ―confirm[ed] he had discussed the issue with his counsel, who

concurred in the waiver‖]; People v. Weaver (2012) 53 Cal.4th 1056, 1070–1071

[upholding waiver where defense counsel ―stated that he, the other defense

attorney, defendant, and defendant‘s father had discussed the matter together the

day before for about two hours, and that the attorney believed waiving a jury was

in defendant‘s best interest‖]; People v. Scott (1997) 15 Cal.4th 1188, 1208 (Scott)

8

[upholding waiver where ―[d]efense counsel stated that he and defendant had

discussed the matter, and both agreed that the waiver was in defendant‘s best

interests ‗in terms of trial tactics‘ ‖]; Diaz, supra, 3 Cal.4th at p. 565 [upholding

waiver where defendant ―told the court that he had discussed the matter ‗quite

thoroughly‘ with his counsel‖]; People v. Robertson (1989) 48 Cal.3d 18, 36

(Robertson) [upholding waiver where defendant ―was represented by two

apparently competent counsel who over the course of several days discussed with

him ‗at length‘ the consequences and nature of his proposed waiver‖]; People v.

Deere (1985) 41 Cal.3d 354, 357, 359 [defense counsel ―explained at length to the

court why he permitted his client . . . to waive a penalty jury‖ and affirmed that

―defendant ‗knows what would happen if the case went to jury trial‘ ‖].) Nothing

in the record here indicates that Sivongxxay discussed the nature or consequences

of his jury waiver with his attorney.

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

9

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, supra, 26 Cal.4th at p. 305.) Sivongxxay was denied a jury trial on the

special circumstance allegation in violation of the federal and state Constitutions.

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.

10

(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) 14 Cal.4th 580, 589 [the prosecutor ― ‗ ―is in a peculiar and

very definite sense the servant of the law‖ ‘ ‖ and must exercise his or her

functions ― ‗with the highest degree of integrity and impartiality‘ ‖]; Corrigan, On

Prosecutorial Ethics (1986) 13 Hastings Const. L.Q. 537, 537 [―the integrity of

the prosecutor‖ ―lies at the heart of our criminal justice system and is the

foundation from which any prosecutor‘s authority flows‖].) This is not the first

time this concern has arisen in recent years. (See People v. Grimes (2016) 1

Cal.5th 698, 720 [Attorney General did not argue harmless error in her briefing

but then, without explanation, argued harmless error after this court requested

supplemental briefing]; People v. Aranda (2012) 55 Cal.4th 342, 367, fn. 13; id. at

p. 379 (conc. & dis. opn. of Liu, J.) [Attorney General conceded in her answer

brief that instructional error required reversal but then, without explanation,

switched her position after this court requested supplemental briefing].))

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, supra, 61 Cal.4th 1160, makes clear that a violation of section

190.4(a) is structural error. In Blackburn, we interpreted the statutory scheme

governing involuntary commitment proceedings for mentally disordered offenders.

Under section 2972, subdivision (a), a hearing to extend an offender‘s

commitment beyond the termination of parole ―shall be by jury unless waived by

11

both the person and the district attorney.‖ Although Blackburn‘s lawyer had

submitted a request for a bench trial, we concluded that the trial court erred in

failing to elicit a personal jury trial waiver from Blackburn. (Blackburn, at

p. 1130.) This error, we said, ―defies ordinary harmless error analysis. To

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 would pose insurmountable

difficulties, as would an inquiry into what effect, if any, that choice would have

had on the outcome of the trial. . . . ‗[W]here a case improperly is tried to the

court rather than to a jury, there is no opportunity meaningfully to assess the

outcome that would have ensued in the absence of the error.‘ [Citation.]

Accordingly, we treat a trial court‘s failure to obtain a required personal jury trial

waiver as tantamount to the denial of a jury trial, and as such, it constitutes a

‗miscarriage of justice‘ under California Constitution, article VI, section 13.

[Citations.]‖ (Blackburn, at p. 1134.)

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,

supra, 61 Cal.4th at p. 1130.) Despite these circumstances, however, we declined

to place the burden on the defendant to show he wanted a jury trial: ―The statute

does not require the defendant to affirmatively show he or she wanted a jury trial;

a jury trial is the default procedure absent a personal waiver.‖ (Id. at p. 1131.)

12

Our decision in Tran reached the same holding on the same reasoning with respect

to the jury trial guarantee of section 1026.5, subdivision (b)(4), which governs a

commitment extension proceeding for a person who pleaded not guilty by reason

of insanity. (Tran, supra, 61 Cal.4th at p. 1169.)

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, supra, 38 Cal.3d at p. 704.) The court today holds that a

defendant is not entitled to a jury trial on a special circumstance allegation, even if

he has made no separate waiver, unless he can affirmatively show on the record

that he wanted a jury trial. This holding inverts the rule stated in section 190.4(a):

Whereas the statute requires a jury trial unless the record shows the defendant did

not want one, the court allows the denial of a jury trial unless the record shows the

defendant did want one. Here, as in Blackburn and Tran, a jury trial is the default

procedure mandated by statute. Here, as in Blackburn and Tran, a defendant is

entitled to a jury trial without an affirmative showing that he wanted one. And

here, as in Blackburn and Tran, a trial court‘s failure to obtain a valid waiver

before conducting a bench trial is a structural error requiring automatic reversal.

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

13

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

14

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) 23 Cal.4th 183, and In re

Alvernaz (1992) 2 Cal.4th 924, this court evaluated whether a defendant would

have accepted a plea deal had the trial court or counsel properly advised the

defendant of the consequences. In People v. Sanchez (1995) 12 Cal.4th 1, we held

that a defendant‘s jury trial waiver was valid despite the trial court‘s failure to

inform him of the potential maximum and minimum terms of imprisonment. And

U.S. v. Williams (7th Cir. 2009) 559 F.3d 607 held that under the federal plain

error standard, a district court‘s failure to conduct a proper colloquy before taking

a jury trial waiver does not warrant reversal unless the defendant can show he

would have chosen a jury trial had he been properly advised. All of these cases

presented scenarios in which an error in advisement occurred in the course of the

defendant‘s actual decision to waive a particular right. None involved a scenario

in which trial court error resulted in no actual decision by the defendant to waive a

particular right. It is one thing for a reviewing court to assess how an error might

have affected a waiver decision that the defendant actually made; it is quite

another for a reviewing court to imagine what decision the defendant would have

made if he had been given an opportunity to make a decision at all.

The more pertinent authority is Fortune v. U.S. (D.C. 2013) 59 A.3d 949

(Fortune). There the trial court held a jury trial for each of defendant‘s offenses

except for his felon in possession charge, which proceeded to a bench trial even

though the defendant had not entered a jury waiver. (Id. at p. 954.) District of

Columbia Code section 16–705, subdivision (a) provides that where a defendant is

15

constitutionally entitled to a jury, a ―trial shall be by jury, unless the defendant in

open court expressly waives trial by jury and requests trial by the court, and the

court and the prosecuting officer consent thereto.‖ On appeal, the court explained

that ―the importance of the right to a jury trial, the explicit statutory command in

this jurisdiction that trial shall be by jury absent an express waiver by the

defendant in open court, and the relative inability of a reviewing court to engage in

review of whether the error affected the defendant‘s rights, all counsel in favor of

holding that the failure to make the prescribed determination of waiver is a

structural error, one that obviates the need for further inquiry into whether the

defendant‘s substantial rights were affected by the error.‖ (Fortune, at pp. 956–

957.) In reaching this conclusion, the court ―reject[ed] as speculative the

government‘s argument that ‗[q]uite obviously, [Mr.

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