People v. Daniels

Filed 8/31/17

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S095868

v. )

)

DAVID SCOTT DANIELS, )

) Sacramento County

Defendant and Appellant. ) Super. Ct. No. 99F10432

____________________________________)

THE COURT.*

On January 8, 2000, defendant David Scott Daniels pleaded guilty to 11

counts of robbery (Pen. Code, § 211; all undesignated statutory references are to

the Penal Code), one count of carjacking (§ 215, subd. (a)), and one count of

vehicle theft (Veh. Code, § 10851). He admitted enhancements for the personal

use of a firearm (former § 12022.53, subd. (b)) as to the robbery and carjacking

counts, and further admitted that he had suffered two prior strike convictions

within the meaning of the “Three Strikes Law” (§§ 667, subds. (b)–(i), 1170.12).

On January 19, 2001, Daniels was convicted by court trial of the first

degree murder of LeWayne Carolina (§§ 187, 189); the second degree murder of

LaTanya McCoy (§ 187); deliberate and premeditated attempted murder of

* Cantil-Sakauye, C. J., Werdegar, J., Chin, J., Corrigan, J., Liu, J., Cuéllar,

J., and Kruger, J.

SEE SEPARATE OPINIONS.

Tamarra Hillian (§§ 664, 187); attempted robbery (§§ 664, 211); first degree

robbery (§ 211); residential burglary (§ 459); and evading arrest causing serious

bodily injury (Veh. Code, § 2800.3). The court found true special-circumstance

allegations that the murder of LeWayne Carolina occurred while Daniels was

engaged in the commission of robbery and burglary (§ 190.2, subd. (a)(17)), and

found true a multiple-murder special-circumstance allegation (§ 190.2, subd.

(a)(3)). It also found true various allegations for personally discharging a firearm

causing great bodily injury (former § 12022.53, subd. (d)), personally using a

firearm (former § 12022.53, subd. (b)), and personally inflicting great bodily

injury (former § 12022.7, subd. (a)).

On January 31, 2001, the court imposed the death penalty and an

indeterminate term of life without the possibility of parole for 45 years,

consecutive to an indeterminate sentence of 441 years to life, to be served

consecutively following a determinate term of 125 years. The court subsequently

heard and denied Daniels’s automatic application for a new trial and modification

of death sentence. This appeal is automatic. (§ 1239, subd. (b).)

Based on the opinions that follow, the judgment of death is reversed

because Daniels’s waiver of his right to jury trial on penalty was invalid. The

sentence of death in connection with the conviction of second degree murder

(count 21) is vacated as unauthorized, and the superior court is directed to issue an

amended judgment as to this conviction reflecting the appropriate sentence of 15

years to life. The judgment in all other respects is affirmed, including the

judgment of guilt as to all counts tried, the true findings of special circumstances,

and all convictions entered by way of guilty plea. The case is remanded for

further proceedings not inconsistent with this opinion.

The lead opinion of Justice Cuéllar, joined by Justice Werdegar and Justice

Liu, expresses the opinion of the entire court on all issues except part II.D

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(Knowing and Intelligent Waiver of the Right to Jury Trial). Justice Liu writes a

concurrence to the lead opinion, which Justice Cuéllar signs. Justice Corrigan

dissents from part II.D of the lead opinion in an opinion joined by Chief Justice

Cantil-Sakauye and Justice Chin. Justice Kruger issues an opinion concurring in

part with, and dissenting in part from, part II.D of the lead opinion.

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LEAD OPINION BY CUÉLLAR, J., CONCURRING AND DISSENTING IN

THE JUDGMENT OF THE COURT

The jury lies at the heart of California’s criminal justice system and its

capital sentencing scheme. Despite the costs and practical burdens associated with

juries, the federal Constitution requires safeguards “[t]o protect against

inappropriate incursions” on a defendant’s exercise or waiver of the fundamental

right to a trial by a jury of his or her peers. (People v. Collins (2001) 26 Cal.4th

297, 307 (Collins).) Our state Constitution proclaims that “[t]rial by jury is an

inviolate right and shall be secured to all.” (Cal. Const., art. I, § 16.) And

California statutes afford capital defendants the right to a jury trial not only with

respect to adjudication of guilt or innocence, but also with respect to

determinations regarding special circumstance allegations and the decision to

impose the death penalty. (See Pen. Code, § 190.4, subds. (a), (b); all further

unmarked statutory references are to the Penal Code.)

A criminal defendant is permitted to waive his or her jury trial rights –– but

only if the record demonstrates the waivers are express, voluntary, knowing, and

intelligent. (Collins, supra, 26 Cal.4th at p. 305.) That proves to be a problem in

this case. We, the undersigned, cannot conclude that defendant David Scott

Daniels’s waivers of jury trial were knowing and intelligent, in compliance with

constitutional requirements. That this error results in unquantifiable prejudice is

the reason we would reverse Daniels’s guilt convictions, the true findings of

special circumstances, and the penalty of death. Our view on this issue, however,

does not today command a majority of the court. Thus, we concur in the court’s

reversal of the penalty of death, while we dissent from the judgment to affirm

Daniels’s trial convictions and special-circumstance findings.

Because the court reverses the judgment of death, we need not address

Daniels’s claims challenging specific aspects of his trial relating to his death

sentence, or California’s death penalty scheme more generally. We analyze

Daniels’s remaining claims only to the extent they seek to attack his convictions or

the special-circumstance determinations. With the exception of Daniels’s claim

maintaining that his jury trial waiver was invalid, discussed in part II.D, the court

unanimously agrees with the reasoning and resolution of Daniels’s claims

examined below.

I. FACTS

A. Guilt Phase Evidence

The People presented the following evidence during the guilt phase of trial.

Daniels did not present any guilt phase evidence or argument.

1. Armed Robberies and Carjacking

From November 26 through December 27, 1999, Daniels committed

several armed robberies of businesses in Sacramento. The robberies proceeded in

substantially the same fashion: Daniels would enter a bank or store, pull out a

firearm or insinuate that he had a firearm, and demand money from the cash

register. On one occasion, Daniels led a customer and a clerk to the back of the

store, took $25 from the customer’s wallet, and bound the customer’s and clerk’s

necks and faces with cable wire before taking $1,000 dollars from the store’s cash

register.

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On January 1, 2000, Daniels approached Gabriel Tover and Lisa Lovado

outside a Blockbuster Video in Stockton, holding what looked to be a machine gun

or an Uzi. Daniels pointed his firearm at Tover and demanded the keys to a silver

1995 Chevrolet Camaro; Tover obliged. After also taking Lovado’s purse and

Tover’s wallet, Daniels got into the car and drove off.

In connection with these and similar incidents, Daniels pleaded guilty on

January 8, 2001, to 11 counts of armed robbery with use of a firearm, one count of

carjacking with use of a firearm, and one count of vehicle theft. In addition,

Daniels admitted he had suffered two prior strike convictions within the meaning

of the Three Strikes Law (§§ 667, subds. (b)–(i), 1170.12).

2. LeWayne Carolina Homicide

Jennifer O’Neal and Daniels were dating and had known each other about

four years. At approximately 6:30 p.m. on December 28, 1999, Daniels picked up

O’Neal and O’Neal’s eight-year-old daughter in his car. O’Neal noticed that

Daniels had, under his clothing, a Tec-9 firearm tied around his neck with a

shoelace. Daniels told O’Neal he needed the firearm for protection, explaining

that he was “on the run” and not going back to prison.

Around 8:00 p.m., Daniels, O’Neal, and O’Neal’s daughter went to the

Ramada Inn on Auburn Boulevard, where O’Neal rented a room. Daniels made a

phone call in the lobby, as well as some calls in the hotel room. Daniels smoked

three cocaine cigarettes between approximately 8:00 and 9:30 p.m. Daniels,

O’Neal, and O’Neal’s daughter left the hotel together by car.

They picked up a woman named Marcie, then drove to Martina Daniels’s

house in South Sacramento where they picked up Martina and her friend Lamar.

Lamar recommended a place where Daniels could buy illegal drugs. Daniels

drove the car and its passengers to an apartment complex on Mack Road. He

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seemed “very high” and “very hyper.” His driving was “okay, a little fast, but he

was driving normally.” When they arrived at the Stonegate apartment complex,

Daniels indicated he would be right back, and both he and Lamar exited the car.

O’Neal described Daniels’s demeanor as “very aggressive” and observed that “he

was not in a normal state of mind. He was not rationally thinking.” Martina,

Marcie, O’Neal, and O’Neal’s daughter waited in the car.

Around 9:00 p.m. that same evening, Tamarra Hillian arrived to visit Ray

Jedkins, a friend of hers from high school, at Jedkins’s apartment. Jedkins’s

cousin, LeWayne Carolina, was also at the apartment. As Hillian sat in the

apartment living room watching television, there was a knock at the door. Jedkins

answered the door and spoke with Daniels, who was standing outside, for “a little

while” before Jedkins let Daniels inside. Daniels and Jedkins walked into the

kitchen and chatted with Carolina before Jedkins returned to the living room. A

few minutes later, Daniels walked into the living room and demanded money

while pointing a large firearm in Jedkins’s direction. Jedkins handed Daniels a

wad of money from his pocket. Then, Hillian heard gunshots and covered her

face. Jedkins climbed out the living room window. After the gunshots stopped,

Daniels ran out of the apartment. Hillian never saw Daniels point the gun at her or

Carolina.

After Daniels fled the apartment, Hillian tried to stand up, but her leg

crumpled and she fell to the floor. She had been shot in the hand and in the leg.

She crawled to the kitchen telephone and saw that Carolina had been fatally shot.

As Hillian attempted to dial for help, Jedkins returned to the apartment and called

911. Sacramento police officers later arrived at the Stonegate apartment complex

and collected nine-millimeter and .380 bullet casings from the scene. Forensic

pathologist Dr. Gregory Reiber, who performed the autopsy of Carolina, testified

that Carolina suffered a fatal gunshot wound to the head and a superficial graze

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wound on the left side of his back. No soot or gunpowder was found on

Carolina’s head, indicating that the fatal gunshot was fired from a distance greater

than 12 to 18 inches.

About 10 minutes after the group had arrived at the apartment complex,

Lamar returned alone to the car. He appeared scared and looked as though he was

praying. Daniels returned to the car soon after, holding his left side and gasping

for air. Daniels told O’Neal, “I’ve been shot. That guy shot me.” Daniels drove

the car away from the apartment complex and back to Martina’s house, swerving

while appearing to nod off. At Martina’s house, O’Neal and the other adults

attempted to treat Daniels’s bullet wounds on his left arm and left side near his

back. Martina saw that Daniels had a gun, one she would identify in court as

similar to the nine-millimeter gun found on Daniels at his arrest.

Martina drove Daniels, O’Neal, and O’Neal’s daughter back to the Ramada

Inn. In the hotel room, Daniels told O’Neal that there were three other men and a

woman in the Stonegate apartment. He said a man in the kitchen started shooting,

and Daniels had returned fire. Daniels told O’Neal he shot the woman, who had

been yelling, and also shot the man sitting on the couch. He said “he would not be

taken alive” by law enforcement. While relaying his account of events, Daniels

smoked a cocaine cigarette. Martina observed a smaller gun on the dresser, which

Daniels explained he got from the man who shot him in the apartment.

3. LaTanya McCoy Homicide

On December 30, 1999, local law enforcement authorities issued an arrest

warrant for Daniels for the murder of LeWayne Carolina. On the morning of

January 2, 2000, Sacramento Police Detective Michael Kaye was conducting

surveillance in front of Martina’s house. Around 6:00 a.m., Daniels drove a silver

Chevrolet Camaro down the street, making unusual maneuvers before he paused in

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front of the residence. When the Camaro pulled away, Kaye followed in pursuit.

Kaye broadcasted the Camaro’s direction of travel to responding patrol units.

Officer Shaunda Davis of the Sacramento Police Department was on patrol,

positioned on a nearby road. She activated the patrol car’s overhead lights, as did

officers in another patrol car, in anticipation of a felony vehicle stop. Daniels

initially pulled over, but then drove off at a high speed before the officers could

position themselves for a vehicle stop. Fog limited visibility. Police dispatchers

were advised that Daniels’s car was traveling on Mack Road at speeds up to 100

miles per hour. Daniels’s car weaved in and out of traffic. After passing the

intersection of Mack Road and Franklin Boulevard, Daniels’s Camaro collided

with another car at a minimum of 80 miles per hour. The other car spun across the

embankment that divided the roadway and burst into flames. Davis unsuccessfully

attempted to remove the driver, LaTanya McCoy, from the burning car. The fire

killed McCoy and burned her entire body.

The Camaro veered off the road and eventually stopped. Shortly thereafter,

several Sacramento City police officers arrived at the scene. Officer Brian Ellis

advised Daniels to put up his hands outside of the vehicle. Daniels raised his left

hand but claimed his right hand was stuck. As Sergeant Steven Weinrich reached

into the Camaro to extract Daniels, Daniels fired his Tec-9 firearm. Weinrich

returned fire and was shot as he retreated behind the car. One bullet was later

found lodged in Weinrich’s bulletproof vest, while another bullet entered his upper

thigh.

B. Penalty Phase Evidence

1. Prior Statements by Daniels

The penalty trial commenced on January 23, 2001. The prosecution began

its case by introducing statements made by Daniels on January 19, 2000, in which

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he threatened officers while hospitalized in the surgical intensive care unit. The

prosecutor argued that these statements constituted an uncharged violation of

section 69 (obstructing or resisting an officer by means of threat or violence).

Sacramento County Sheriff’s deputies testified regarding two confiscated

letters written by Daniels while in jail in April and June of 2000. In one six-page

letter addressed to a woman named Nikki, Daniels stated that he felt responsible

for McCoy’s death and wished that he had died instead of McCoy. He also wished

he had “killed every last one” of the police officers he shot. Daniels wrote he was

not afraid to die and preferred death to life in prison. He stated he knew he would

get caught and “that’s why [he] robbed every bank an [sic] store in sight.”

Included with an 11-page letter from Daniels to his aunt was a printout labeled

“Daniels Investigation Time Line,” which contained admissions and details of

crimes committed between November 16, 1999, and January 1, 2000. The listed

offenses included 6 bank robberies, 17 robberies, 2 carjackings, and a shootout

with the Turlock Police Department.

2. Prior Convictions

During the guilt phase, Daniels admitted to two prior felony convictions: a

January 1986 felony conviction for attempted first degree burglary (§§ 664, 459)

and a July 1991 felony robbery conviction (§ 212.5). Daniels understood that

those prior pleas could be relevant, admissible evidence for penalty purposes.

At the penalty phase, the prosecution introduced certified copies of three

prior convictions: a March 1988 felony conviction for possession of a controlled

substance (Health & Saf. Code, § 11350); an October 1990 felony conviction for

sale of a controlled substance (Health & Saf. Code, § 11352); and a February 1998

felony conviction for second degree burglary (§ 459). Daniels acknowledged he

had seen copies of these prior convictions.

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3. Uncharged Crimes

The prosecution introduced evidence of several uncharged crimes that

occurred in December 1999. Specifically, the prosecution elicited a bank teller’s

testimony regarding Daniels’s armed robbery of the Washington Mutual Bank in

Stockton on December 11, 1999, and his departure from the bank with about

$6,000 in stolen cash. In addition, business proprietor Vorn Chan and his daughter

Junda Chan testified about an armed robbery of Lim’s Market in Stockton on

December 22, 1999, during which a man took money from the cash register and

Vorn’s personal effects before driving off in a Toyota pickup owned by Vorn’s

son-in-law. Neither Vorn nor Junda identified Daniels as the perpetrator of the

robbery, but Daniels indicated that he committed a crime at Lim’s Market in the

printout he had included in the letter to his aunt.

Witnesses testified that on December 30, 1999, Daniels was driving with an

unidentified female on the J14 highway in Merced County. After driving off the

roadway at a high speed, he exited his car in a daze and appeared “really loopy”

and “spaced out.” Shantel Little stopped to help. After Daniels approached her

with a firearm, Little exited her white Camaro. Daniels and his female passenger

entered the Camaro and drove away.

Deputy Sheriff Mark Goddard, who was advised by dispatch of the

carjacking, observed Daniels in the Camaro and pulled him over. But once

Goddard pulled in from behind, Daniels took off, weaving through traffic at

speeds up to 80 miles per hour. Officers from the Turlock Police Department

pursued the Camaro until Daniels collided with another car while driving 55 to 60

miles per hour. Daniels got out of the Camaro and fired approximately four to six

gunshot rounds at the officers. He then fled on foot while the injured female

passenger was arrested. Officers collected discharged shell casings from the scene

and later concluded that the casings had been fired from Daniels’s Tec-9 firearm.

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Jose Campos testified that on the evening of December 30, 1999, Daniels

walked into the garage of Campos’s home in Turlock with a firearm and asked

Campos for his car keys. Campos retrieved his keys from within the house, gave

them to Daniels, and returned to his house. When Campos reentered the garage,

his car was gone.

4. Statement of Apology

Daniels declined to present evidence or deliver a closing argument during

the penalty phase trial. He did, however, offer a lengthy apology –– expressing

deep remorse and sadness –– to the Carolina and McCoy families. Daniels stated

that he had “no intention on doing anything” to Carolina. He spoke of being a

father to four boys, and apologized in particular to Carolina’s father. He

“accept[ed] some responsibility for that accident” that killed McCoy. The chance

to apologize to the families, he said, “means a lot to me, and I have to live with

this for the rest of my life.” He also noted that “it took a long time for me to really

prepare myself to say this” to the family members. The court would later identify

Daniels’s statement as potentially mitigating evidence, stating, “During the

penalty phase, Mr. Daniels addressed the families of the victims. At that time, Mr.

Daniels did express some remorse for his actions and took some responsibility for

the crimes. These facts may constitute a mitigating factor.”

II. DISCUSSION

A. Knowing and Intelligent Waiver of the Right to Counsel

Daniels contends that the record does not reflect a valid waiver of the right

to counsel. To wit, he argues that the court did not adequately advise him of the

complexities of a capital trial, made no meaningful inquiry into his understanding

of the charges and possible defenses, and ignored his comment that he did not

view self-representation as a disadvantage. We reject this claim.

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1. Background

At a court proceeding on April 28, 2000, Daniels asked to speak to the

judge. Judge Ransom told Daniels that he had to speak through his lawyer.

Daniels responded, “I’m not agreeing with nothing that’s going on. I’m not

agreeing with nothing that’s going on here — I’m not agreeing with nothing that’s

going on here.” The proceeding terminated without further discussion.

In a letter dated December 7, 2000, Daniels advised the court, “I am

Respectfully Requesting that I be allowed to withdraw my ‘Not Guilty’ Plea and

enter a ‘Guilty Plea.’ I am also Requesting that I Be allowed to Represent myself,

my feretta [sic] Rights. I fully understand that I am charged with the Capitol [sic]

offense of Murder penal code Section 187 with the special circumstances.”

About two weeks later, on December 20, 2000, Judge Ransom engaged

Daniels in a colloquy regarding the benefits of counsel and the drawbacks of self-

representation. In response to the court’s questioning, Daniels indicated that he

knew he had the right to counsel at all stages of the case, he understood that self-

representation is “generally not a wise choice” in criminal matters, and he would

face the death penalty if convicted. Further, Daniels acknowledged that the court

would not help him present his case or grant him special treatment, he was being

opposed by a trained prosecutor, he would be required to comply with all rules of

criminal procedure and evidence, he would forfeit a potential ineffective

assistance of counsel claim on appeal, he would be removed from the courtroom if

he were disruptive, and he had a right to hire his own attorney at any time but the

court would not delay proceedings to accommodate attorney preparation. In

response to the court’s questioning, Daniels informed the court that he had a high

school education and could read and write. He then stated, “I want to exercise my

Faretta” and reiterated his wish to represent himself. The court then expressed that

it was “satisfied he’s doing this knowingly and intelligently,” and granted the

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motion for self-representation. Later that day, Daniels signed a “Record of Faretta

Warnings” form, acknowledging that he had been personally advised of various

rights which had been discussed during the oral colloquy. Daniels rejected the

court’s offer to appoint advisory counsel.

The case was subsequently assigned, for all purposes, to Judge Long. At

the outset of proceedings on January 5, 2001, Judge Long confirmed that Daniels

was representing himself and that Judge Ransom had advised him of the pitfalls of

self-representation. Daniels then acknowledged that he had received the amended

information in this case. Thereafter, Judge Long arraigned Daniels on the

amended information, reading aloud each of the 22 charges and the sentencing

enhancements. After reading each charge, the court asked, “Do you understand

the charges?” Daniels responded affirmatively as to each charge. While

arraigning Daniels on counts 12 and 21, the special-circumstance murder counts,

Judge Long informed him that these were serious felonies. The court explained

that, as to these charges, if Daniels were found guilty of these charges, the case

would proceed to a penalty phase where the People would seek the death penalty.

Daniels said he understood. After the court finished reading all the charges, the

following colloquy transpired:

“THE COURT: Sir, did you understand all those charges?

“MR. DANIELS: Yes, sir.

“THE COURT: Are there any questions you need to ask me relating solely

to the nature of the charges that the People of the State of California have filed

against you?

“MR. DANIELS: No, sir.”

Thereafter, by asking a series of yes or no questions, Judge Long warned

Daniels about the dangers of self-representation. Despite the fact that the judge

informed Daniels that the prosecutor in this case was “one of the experts in this

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county in prosecuting” death penalty cases, Daniels expressed his desire to

continue self-representation. During this colloquy, the following exchange

occurred:

“THE COURT: You understand that these are very, very serious matters

and that whatever your legal training is and I don’t know what it is, I’m going to

get into that, that you, sir, are placing yourself at a severe disadvantage? Do you

understand that?

“MR. DANIELS: Yes, your Honor. I don’t look at it as a disadvantage.

“THE COURT: You do not look at it as a disadvantage?

“MR. DANIELS: No.

“THE COURT: All right. . . .”

Judge Long reminded Daniels that he would be held to the standards of a

lawyer, the court could not assist him in any way, the consequences of self-

representation were “enormous” in this case, it is “never wise” for an unskilled

person to represent himself, and that “it is said that he who represents himself is a

fool.” Judge Long asked Daniels if he understood that “it could get so bad in here

based upon your lack of skill and you may have skill, that if this were a

professional [sporting] event in the legal sense, it might be like a flag football

team going up against the Tennessee Titans?” Daniels responded, “I hear you.”

Daniels stated he understood that he would not be able to raise the issue of

counsel’s competence on appeal.

As part of his analysis of Daniels’s decision to exercise his right to self-

representation, Judge Long made several inquiries about Daniels’s mental state

that day. Daniels responded that he was thinking clearly, he knew what he was

doing, he was taking Neurontin for nerve damage in his hand but the medication

was not interfering with his choice to represent himself, and that he was not under

the effect of any substance that would cloud his judgment. In response to the

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court’s questioning, Daniels stated that he was 33 years old, could read and write,

had graduated from high school, and had been employed “off and on” as a

mailroom clerk — a job which required reading and understanding documents.

He also stated that no threats had been made against him or his family members in

connection with his decision, nor had he been subject to any force or pressure

influencing him to represent himself. When the court asked Daniels to state, in his

own words, the potential penalty he would be facing if found guilty and the special

circumstances found true, Daniels replied, “I could be put to death.” This

exchange followed:

“THE COURT: Are there other areas that you think I need to explore at

this time? Oh, and further, if you did want a lawyer, do you understand that I

would appoint a lawyer for you and give you what additional time you need to

prepare for this trial? Do you understand that?

“MR. DANIELS: Yes, I do.

“THE COURT: And even with that offer, you still want to represent

yourself and proceed to trial?

“MR. DANIELS: Yes, your Honor.”

Daniels again declined advisory counsel. Following a 15-minute recess for

Daniels to reflect on his decision, the court concluded its advisements and ruled on

Daniels’s Faretta motion:

“THE COURT: All right. We are again on the record. Mr. Daniels, have

you had an opportunity to think about, you know, the colloquy we have gone

through relative to you representing yourself?

“MR. DANIELS: Yes.

“THE COURT: Now, let me ask you this: You have told me that you

understand the nature of all these charges and what could happen to you, right?

“MR. DANIELS: Yes, I understand.

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“THE COURT: And if you wish to present a defense, that is kind of like

up to you, but if you wish to do that, your mind is clear and your thoughts and you

understand the charges where if you wish to do that, you feel you could do that?

“MR. DANIELS: Yes, I do.

“THE COURT: You do?

“MR. DANIELS: Yes, I do.

“THE COURT: All right. Is there anything else?

“[THE PROSECUTOR]: No, your Honor, not on that issue.

“THE COURT: All right. The Court makes findings as follows: One, the

defendant, Mr. Daniels, is competent, he understands the nature of the charges, he

understands and represents that his mind is clear whereby if he wished to present a

defense, he would know how to do that to these charges. [¶] The Court also finds

that Mr. Daniels understands and is aware of the risk and dangers of representing

himself, and I further find that he is waiving his right to a lawyer and proceeding

to trial by way of self-representation. And I find that this choice for him to

represent himself is done knowingly, freely, and intelligently, and without any

force or coercion. The Court then will grant you your right to represent yourself.”

Daniels signed a record of Faretta warnings in open court and affirmed that

he understood the warnings contained in the document.

2. Analysis

Daniels argues the court failed to meaningfully inquire into his

understanding of the charges. The record contains no indication that Daniels ever

discussed the risks of self-representation with counsel. Daniels asserts that neither

Judge Ransom nor Judge Long inquired as to Daniels’s legal experience or

informed him of the complexities of trial. Further, Judge Long did not address

Daniels’s statement that he did not view self-representation to be disadvantageous.

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As established by the high court in Faretta, a defendant has a federal

constitutional right to the assistance of counsel during all critical stages of a

criminal prosecution. (Faretta v. California (1975) 422 U.S. 806, 807 (Faretta);

United States v. Wade (1967) 388 U.S. 218, 223–227.) A defendant may

nonetheless waive this right and personally represent himself or herself, as long as

the defendant’s waiver of the right to counsel is valid. An effective waiver

requires that the defendant possess the mental capacity to comprehend the nature

and object of the proceedings against him or her, and waive the right knowingly

and voluntarily. (People v. Koontz (2002) 27 Cal.4th 1041, 1069 (Koontz);

Godinez v. Moran (1993) 509 U.S. 389, 401, fn. 12.) There is no prescribed script

or admonition that trial courts must use to warn a defendant of the perils of self-

representation. But the record as a whole must establish that the defendant

understood the “dangers and disadvantages” of waiving the right to counsel,

including the risks and intricacies of the case. (People v. Blair (2005) 36 Cal.4th

686, 708; People v. Burgener (2009) 46 Cal.4th 231, 241.) If a defendant validly

waives the right to counsel, a trial court must grant the request for self-

representation. (People v. Welch (1999) 20 Cal.4th 701, 729.) We review a

Faretta waiver de novo, examining the entire record to determine the validity of a

defendant’s waiver. (Koontz, at p. 1070.)

In determining the validity of a trial court’s decision to permit the exercise

of a defendant’s Faretta right, we have treated the suggested advisements and

inquiries set forth in People v. Lopez (1977) 71 Cal.App.3d 568 (Lopez) as a

useful reference for courts to ensure the knowing and voluntary waiver of counsel.

(Koontz, supra, 27 Cal.4th at pp. 1070–1073.) Lopez suggests the court provide

advisements falling into three general categories: (1) ensuring the defendant’s

awareness of the “ ‘dangers and disadvantages’ ” associated with self-

representation; (2) inquiring into the defendant’s intellectual capacity; and (3)

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informing the defendant that he or she cannot later claim inadequacy of

representation. (Lopez, at pp. 572–574.) Here, the record demonstrates that

Daniels was — orally and in writing — sufficiently advised of the benefits of

counsel and warned about the pitfalls of self-representation in accordance with

Lopez’s guidance.

First, Daniels was made thoroughly aware of the “ ‘dangers and

disadvantages of self-representation.’ ” (Lopez, supra, 71 Cal.App.3d at p. 572.)

The court advised him that it is “never wise” for an unskilled person to represent

oneself. The court also told him that it would not grant him any special treatment,

and he would be subject to the same standards expected of an attorney. Judge

Ransom and Judge Long both emphasized to Daniels that he would be opposed by

a trained prosecutor, whom Judge Long described as “one of the experts in this

county in prosecuting [death penalty] cases.” Judge Long analogized the expected

disparity in lawyering skills to “a flag football team going up against the

Tennessee Titans.” Daniels signed a “Record of Faretta Warnings” form, attesting

that he had been advised of the court’s oral admonitions — including that he had

the right to counsel at all stages of the case; it is generally “not a wise choice” to

represent oneself in a criminal matter; he would not receive any special treatment

from the court; and he would be required to comply with all rules of criminal

procedure and evidence just like an attorney would. Finally, Daniels was twice

provided a form explaining his library privileges as a self-represented inmate.

Daniels orally acknowledged that he had read and considered the court order

regarding in propria persona privileges. The record reveals that the court amply

advised Daniels of the dangers and disadvantages of self-representation.

Second, the court conducted an inquiry into Daniels’s intellectual capacity,

as recommended in Lopez. Both Judge Ransom and Judge Long asked about

Daniels’s education level. Daniels stated that he had a high school education and

16

could read and write. He told the court that he had previously been employed “off

and on” as a mailroom clerk, a job which required that he read and understand

documents. The court also ensured that Daniels was made aware of his right to

counsel. (See Lopez, supra, 71 Cal.App.3d at p. 573.) Specifically, Daniels was

informed of his right to appointed counsel, if he could not afford his own,

throughout the entirety of proceedings. Daniels rejected the court’s multiple offers

to appoint advisory counsel and a defense investigator, and he later confirmed that

he did not desire such assistance.

The court read aloud all 22 charges from the amended information and

confirmed, after each offense, that Daniels understood the charge just read.

Daniels acknowledged that he could be put to death if he were found guilty and

the special circumstances found true. Daniels was informed that if he were

disruptive, he would be removed from the courtroom and an attorney would be

brought in to complete the case on his behalf. We reject Daniels’s argument that

the court’s inquiry was inadequate because it did not review the elements of the

charges, possible defenses, or possible punishments besides the death penalty —

or confirm that counsel had done so with Daniels. Although an “exploration into .

. . possible defenses and possible punishments” may be useful to help a defendant

understand “just what he is getting himself into” (Lopez, supra, 71 Cal.App.3d at

p. 573), it is not required for a knowing and intelligent waiver of counsel under

Faretta. (See also People v. Riggs (2008) 44 Cal.4th 248, 277 [“The trial court is

not required to ensure that the defendant is aware of legal concepts such as the

various burdens of proof, the rules of evidence, or the fact that the pursuit of one

avenue of defense might foreclose another. . . .”]; People v. Joseph (1983) 34

Cal.3d 936, 939–944 [less extensive colloquy in capital case revealed that waiver

was knowing and intelligent, rendering denial of self-representation request

reversible error].) Further, Daniels told the court that he understood the nature of

17

all the charges against him. Daniels’s waiver was not defective simply because

the court did not define offense elements, such as premeditation or malice

aforethought, or review potential defenses.

Despite the absence of direct questions by Judge Ransom about Daniels’s

mental competence, Daniels points to nothing in the record that would have raised

a question about his competence. (See Lopez, supra, 71 Cal.App.3d at p. 573 [“If

there is any question in the court’s mind as to a defendant’s mental capacity . . . a

rather careful inquiry into that subject should be made” (italics added)].)

Moreover, Judge Long did inquire about Daniels’s present mental health and

whether Daniels was “thinking clearly.” In response to questioning, Daniels

indicated that he was thinking clearly, knew what he was doing, and was not under

the effect of any substance that would cloud his judgment. The court made an

express finding that Daniels was competent to waive his right to counsel. The

record as a whole supports the court’s conclusion.

Daniels stated that he did not view self-representation as a disadvantage.

“All right,” replied the court, without asking why Daniels felt this way. If

Daniels’s statement had conveyed some understanding that his waiver of counsel

was conditional, the court would have been obligated to accept the condition or

else deem the waiver ineffective. (See People v. Carter (1967) 66 Cal.2d 666, 670

[“waiver of counsel which is made conditional by a defendant cannot be effective

unless the condition is accepted by the court”].) But Daniels’s statement does not

divulge a conditional waiver, such as one contingent upon the receipt of some

undisclosed benefit. In light of the court’s admonitions, Daniels’s statement at

most reflects his personal preference to control his own defense — which, no

matter how ill-advised, he was entitled to do under Faretta. (See Faretta, supra,

422 U.S. at p. 834 [“the defendant . . . must be free personally to decide whether in

his particular case counsel is to his advantage”].) Accordingly, Daniels fails to

18

persuade that the court had a duty to clarify what Daniels meant, or else invalidate

the waiver.

Third, Daniels was informed by both Judge Ransom and Judge Long that, if

he chose to represent himself, he could not later claim inadequacy of

representation. (See Koontz, supra, 27 Cal.4th at p. 1071, citing Lopez, supra, 71

Cal.App.3d at p. 574.)

Daniels also raises an argument unrelated to the sufficiency of the court’s

admonitions. He insists that, because his written request to represent himself was

coupled with a request to plead guilty, it should have been apparent to the court

that Daniels was trying to circumvent the statutory limitation on his ability to

plead guilty. Daniels argues that the court should have sua sponte appointed

additional counsel or determined whether Daniels was able to negotiate a plea that

would not have subjected him to the death penalty. We are not aware of any

binding authority — nor has Daniels identified any — that would have required

the court to take such action. There is no dispute that Daniels’s express waiver of

counsel was voluntary. Considering the record as a whole, we conclude that

Daniels’s counsel waiver was also knowing and intelligent, and therefore valid.

B. Self-Representation in Violation of Section 1018 and the Eighth and

Fourteenth Amendments

Representing himself, Daniels expressly waived the right to a trial by jury.

At trial, he did not present any evidence or argument, did not raise any objections,

and did not conduct cross-examination. Daniels argues that his actions at trial

were tantamount to a guilty plea in violation of section 1018, and that the

proceedings were insufficiently reliable so as to violate the Eighth and Fourteenth

Amendments to the United States Constitution. He seeks reversal of the murder

convictions and the special-circumstance findings. For reasons elucidated below,

this claim is one we reject.

19

1. Background

At a court appearance on April 28, 2000, Daniels asked to speak with the

judge. Judge Ransom informed Daniels that he would need to speak through his

lawyer. In response, Daniels stated, “I’m not agreeing with nothing that’s going

on. I’m not agreeing with nothing that’s going on here — I’m not agreeing with

nothing that’s going on here.”

On August 7, 2000, at a proceeding to set a date for Daniels’s preliminary

hearing, Daniels told Judge Ransom that he wished to plead guilty. Daniels’s

counsel confirmed that Daniels was facing the death penalty for these charges.

The court informed Daniels that he was not permitted to plead guilty without his

counsel’s consent; the court then entered Daniels’s plea of not guilty.

On August 23, 2000, in response to the court’s request that Daniels waive

his right to a continuous preliminary hearing so that the court could start later the

next day, Daniels told the court, “[I’m] willing to waive all my rights . . . and go

no further in the matter.” The next day, after Daniels was held to answer, he

repeated his desire to plead guilty. The court asked counsel if, “in light of the

seriousness of the offense,” he wished to enter pleas of not guilty and denials of

enhancements on behalf of Daniels; counsel replied in the affirmative. At

Daniels’s arraignment a week later, the court refused Daniels’s request to address

the court in private after the court asked Daniels whether he wanted counsel.

In a letter dated December 7, 2000, Daniels wrote to Judge Ransom: “I am

Respectfully Requesting that I be allowed to withdraw my ‘Not Guilty’ Plea and

enter a ‘Guilty Plea.’ I am also Requesting that I Be allowed to Represent myself,

my feretta [sic] Rights. I fully understand that I am charged with the Capitol [sic]

offense of Murder penal code Section 187 with the special circumstances.” He

enclosed a partially completed fill-in-the-blank Faretta motion form. On

December 20, 2000, the court granted Daniels’s request to represent himself,

20

though it advised Daniels that, even if he was self-represented, he could not “plead

guilty to a death penalty case and get the death penalty.”

The case was reassigned from Judge Ransom to Judge Long for all

purposes on January 5, 2001. Despite Judge Ransom’s prior admonition, Daniels

again attempted to plead guilty to all charges. The court prohibited Daniels from

pleading guilty to the murders and related counts (counts 12–16, 20–22), but

allowed him to enter guilty pleas to all other counts that had not been dismissed.

Daniels waived his right to a jury trial and agreed to have Judge Long decide guilt

and penalty. At trial, which lasted two days, the prosecution presented the

testimony of 27 witnesses and entered 90 exhibits in evidence. Daniels asked no

questions of any witness, raised no objections, presented no witnesses or evidence,

and made no argument in his defense.

On review, Daniels argues that –– by waiving counsel and jury trial and

then failing to present any defense –– he effectively pleaded guilty without

consent of counsel, in violation of section 1018. He contends that because his

conviction obtained in violation of section 1018, it must be reversed. Moreover,

Daniels asserts that reversal is warranted because the proceedings below lacked

the reliability required by the Eighth and Fourteenth Amendments.

2. Analysis

Section 1018 provides, in relevant part: “No plea of guilty of a felony for

which the maximum punishment is death, or life imprisonment without the

possibility of parole, shall be received from a defendant who does not appear with

counsel, nor shall that plea be received without the consent of the defendant’s

counsel.” In 1973, the Legislature amended the statute to add the requirement that

defense counsel consent to a guilty plea in capital cases. (Stats. 1973, ch. 719, §

11, p. 1301.) We have recognized this amendment to be a component in an

21

overhaul of California’s death penalty laws, following the high court’s decision in

Furman v. Georgia (1972) 408 U.S. 238, in an effort to eliminate arbitrariness in

the imposition of the death penalty. (See People v. Chadd (1981) 28 Cal.3d 739,

750 (Chadd).) The consent of counsel requirement is rooted “in the state’s strong

interest in reducing the risk of mistaken judgments in capital cases and thereby

maintaining the accuracy and fairness of its criminal proceedings.” (People v.

Alfaro (2007) 41 Cal.4th 1277, 1300 (Alfaro).)

Daniels informed the court several times, during various pretrial

proceedings, that he wished to plead guilty to all charges, but the court told him

that he could not do so under section 1018. After counsel refused to consent to his

pleading guilty, Daniels waived counsel and opted to represent himself. Even

thereafter, the court did not permit Daniels to plead guilty to the murder charges or

related counts; those charges thus proceeded to trial.1 Daniels argues that his own

inaction at trial — his failure to cross-examine any prosecution witnesses, raise

objections, and present evidence and argument in his defense — was tantamount

to a “slow plea of guilty” in violation of section 1018.

A “slow plea” is an “ ‘agreed-upon disposition . . . which does not require

the defendant to admit guilt but results in a finding of guilt . . . usually, for a

promised punishment.’ ” (People v. Wright (1987) 43 Cal.3d 487, 496, quoting

People v. Tran (1984) 152 Cal.App.3d 680, 683, fn. 2.) One of the clearest

examples of a slow plea is “a bargained-for submission on the transcript of a

preliminary hearing in which the only evidence is the victim’s credible testimony,

1 “Even if otherwise competent to exercise the constitutional right to self-

representation [citation], a defendant may not discharge his lawyer in order to

enter such a plea [of guilty to a capital felony] over counsel’s objection.” (People

v. Mai (2013) 57 Cal.4th 986, 1055.)

22

and the defendant does not testify and counsel presents no evidence or argument

on defendant’s behalf.” (Wright, at p. 496.) Where the agreed-upon procedures

become tantamount to a guilty plea, a court commits reversible error if it fails to

secure the constitutional and statutory safeguards entailed by a plea. (See Tran, at

pp. 684–685.) For the purpose of addressing this claim, we assume — but do not

decide — that a “slow plea” qualifies as a “plea” within the meaning of section

1018.

Daniels argues that the “truncated, non-adversarial proceedings” of this

case do not advance section 1018’s constitutional and policy purposes of ensuring

reliable judgments in capital cases. But a trial, even one where a defense is

voluntarily forgone, is fundamentally different from a guilty plea. In the

proceedings below, the state was put to its burden of proof as to the murder

charges and related counts. A plea, on the other hand, “serves as a stipulation that

the People need introduce no proof whatever to support the accusation” and “ ‘is

itself a conviction.’ ” (Chadd, supra, 28 Cal.3d at p. 748.) Moreover, a guilty

plea severely limits the right to appeal. (See ibid.) Section 1018 is reflective of

the state’s interest in reducing the risk of mistaken judgments, an interest that is

particularly pronounced in the context of guilty pleas. (See id. at pp. 751–753.)

A submission “is defined by the rights a defendant surrenders.” (People v.

Robertson (1989) 48 Cal.3d 18, 40.) The essential components of a submission

amounting to a slow plea are the waiver of trial by jury, the waiver of the right to

confront witnesses, and the waiver of the privilege against self-incrimination. (See

id. at pp. 39–40; see also Chadd, supra, 28 Cal.3d at p. 748 [one of the

consequences of a guilty plea is that it “strips the defendant of . . . the privilege

against self-incrimination, the right to a jury, and the right of confrontation”].)

Here, there is no indication that Daniels’s waiver of jury trial was the consequence

of any negotiated agreement concerning the disposition, punishment, or evidence

23

to be presented in the case. Further, Daniels never surrendered his right to

confront witnesses or otherwise challenge the prosecution’s evidence at trial; he

simply elected not to do so. He also preserved his privilege against self-

incrimination by declining to testify throughout trial.

In addressing Daniels’s argument regarding the nature of proceedings in his

case, we find instructive People v. Sanders (1990) 51 Cal.3d 471. There, the

defendant, who was represented by counsel, claimed that his decision not to

present evidence at the penalty phase of trial was tantamount to a guilty plea in

violation of section 1018. (Id. at p. 527.) We rejected this argument, finding that

section 1018 did not govern, in part because the defendant’s “choice did not

amount to an admission that he believed death was the appropriate penalty, nor did

he give up his right to confront or cross-examine those testifying against him at the

penalty phase.” (Ibid.) We found section 1018’s scope not so broad as to

encompass the defendant’s choice to not participate in his trial. (Ibid.)

Daniels’s argument does not persuade us that the trial court should have

appointed counsel after realizing that Daniels intended to forgo presentation of any

trial defense. In affirming the Sixth Amendment’s right of self-representation

upon a knowing and intelligent waiver of the right to counsel, the high court

stated, “The right to defend is personal. . . . [A]lthough [the defendant] may

conduct his own defense ultimately to his own detriment, his choice must be

honored out of ‘that respect for the individual which is the lifeblood of the law.’

[Citation.]” (Faretta, supra, 422 U.S. at p. 834.) We have held that “a capital

defendant representing himself under Faretta has no duty to ‘present a defense’

but may simply ‘put the state to its proof.’ ” (Chadd, supra, 28 Cal.3d at p. 750,

fn. 7, quoting People v. Teron (1979) 23 Cal.3d 103, 115.)

Daniels is correct to emphasize the significance of section 1018’s

prohibition against guilty pleas in capital cases. But his refusal to participate in

24

his defense at trial did not amount to a slow plea in violation of section 1018.

Further, we reject his related claims that the nonadversarial nature of the

proceedings below rendered the judgment unreliable in violation of the Eighth and

Fourteenth Amendments to the United States Constitution. “[T]he high court has

never suggested that this heightened concern for reliability requires or justifies

forcing an unwilling defendant to accept representation or to present an

affirmative penalty defense in a capital case.” (People v. Bloom (1989) 48 Cal.3d

1194, 1228 (Bloom).) Indeed, such a requirement — which hinges solely on a

defendant’s behavior — would produce perverse incentives, encouraging

defendants who wish to avoid the death penalty to decline to present any defense,

knowing that their sentence will be reversed on appeal. (See id. at p. 1227.) In the

instant case, the prosecution discharged its burden of proof during the guilt and

special-circumstance phases. The judgment does not violate the reliability

requirements of the Eighth and Fourteenth Amendments.

C. Waiver of Counsel in Violation of Section 686.1

Daniels also contends the trial court erred under section 686.1 by failing to

deny Daniels’s Faretta motion. When Daniels’s waiver of counsel was accepted,

he had already expressed to the court his desire to plead guilty to all charges and

had repeatedly declined advisory counsel and an investigator. Daniels argues that

his passivity throughout the proceedings undermined the fairness and reliability of

the judgment, such that his right to self-representation should have been

subordinated or revoked based on recognized limits of the high court’s Faretta

decision and Eighth Amendment reliability requirements in capital cases.

Section 686.1 requires defendants in capital cases to be represented by

counsel during all stages of the preliminary and trial proceedings. This provision

predates the high court’s decision in Faretta and may only be applied where

25

Faretta is not implicated. (See People v. Johnson (2012) 53 Cal.4th 519, 526

[explaining that post-Faretta, “Penal Code section 686.1 . . . cannot be given

effect”].) We acknowledge the importance of ensuring proceedings are fair and “

‘appear fair to all who observe them.’ ” (Indiana v. Edwards (2008) 554 U.S. 164,

177.) But once a court determines that a competent defendant has knowingly and

voluntarily asserted the right to self-representation under Faretta, the court is not

authorized to revoke that right in an attempt to ensure that the defense case meets

some minimum level of effectiveness. The “likelihood or actuality of a poor

performance by a defendant acting in propria persona” does not defeat the right of

self-representation. (People v. Taylor (2009) 47 Cal.4th 850, 866.)

We reject Daniels’s argument that the Eighth Amendment’s requirements

outweigh an individual’s interest in self-representation merely because a defendant

has chosen not to participate in the defense. Even where a defendant fails to

present any defense or potentially mitigating evidence, the Eighth Amendment’s

requirement of reliability in death judgments is sufficiently attained “ ‘when the

prosecution has discharged its burden of proof . . . pursuant to the rules of

evidence and within the guidelines of a constitutional death penalty statute, the

death verdict has been returned under proper instructions and procedures, and the

trier of penalty has duly considered the relevant mitigating evidence, if any, which

the defendant has chosen to present.’ ” (People v. Mai (2013) 57 Cal.4th 986,

1056, quoting People v. Bradford (1997) 15 Cal.4th 1229, 1372; see also Bloom,

supra, 48 Cal.3d at 1228.)

We are not persuaded that Daniels’s contentions warrant reconsideration of

prior decisions by this court. The trial court committed no error in violation of

section 686.1.

26

D. Knowing and Intelligent Waiver of the Right to a Jury Trial

Daniels also asserts that the record does not reflect valid waivers of the

right to a jury trial in favor of a bench trial. As we explain below, we would find

this claim meritorious because the record fails to demonstrate his knowing and

intelligent waiver. We find such error to be structural, requiring reversal of

Daniels’s convictions on all counts tried.

1. Background

On December 20, 2000, Judge Ransom engaged Daniels in a Faretta

colloquy and found that Daniels’s decision to represent himself was knowing and

intelligent. Immediately after accepting Daniels’s counsel waiver, the court asked

if Daniels wanted to confirm the jury trial date, to which Daniels responded, “Yes.

Keep it the same date for jury.”

On January 5, 2001, Daniels appeared, self-represented, before Judge Long.

Judge Long provided Daniels with further admonitions about the waiver of

counsel. Then, the court accepted Daniels’s waiver of his right to trial by jury in

favor of a court trial as reflected in the following colloquy:

“THE COURT: The other question I think I might raise with you is do you

intend to proceed in terms of the guilt phase, and if there is a penalty phase, by

way of a jury trial or by way of a court trial?

“MR. DANIELS: Court trial.

“THE COURT: Are you satisfied that that’s what you want to do?

“MR. DANIELS: Yes.

“THE COURT: Do you understand that you have an absolute right to

proceed by way of jury trial both in the guilt phase and at penalty phase, if there is

a penalty phase, if you want to do that? Do you understand me?

“MR. DANIELS: Yes.

27

“THE COURT: What you are telling me then is that you wish to waive

your right to a jury trial in the guilt phase and in the penalty phase which basically

means if there is [sic] two phases, you will not have a jury determine your fate, but

rather the Court will make certain findings based upon what you have been

charged with? Do you understand that?

“MR. DANIELS: I understand.

“THE COURT: And more specifically in the posture that we are presently

in, that I will be the Judge that will make those determinations. Do you

understand that?

“MR. DANIELS: I understand.

“THE COURT: Do you understand that if you go by way of the court trial

rather than jury trial, I will decide whether the prosecution has proven its case

beyond a reasonable doubt in the guilt phase of the trial, it will be my job to

determine whether you are guilty or not guilty of the charges and allegations made

against you? Do you understand that?

“MR. DANIELS: I understand.

“THE COURT: Do you understand that I will determine whether the

special circumstances are true or not true? Do you understand that?

“MR. DANIELS: Yes.

“THE COURT: Do you understand if I find you guilty of murder, of

special circumstances, in the guilt phase of the trial, I will also determine whether

the punishment is life without the possibility of parole or the death penalty in the

penalty phase of the trial? You understand that?

“MR. DANIELS: Yes, I understand.

“THE COURT: Have you understood everything that I have told you

relative to your right to proceed by way of jury trial or by way of court trial?

“MR. DANIELS: Yes.

28

“[THE PROSECUTOR]: If I could just interject one thing. You did touch

on it, but he would also have the right to have the jury determine the truth or not

truth of the special circumstances. I think you did mention that.

“THE COURT: Yes. If you waived jury, then the jury will not determine

the truth and validity of the special circumstances, that will be my job to determine

whether they are true or not true. Do you understand that?

“MR. DANIELS: I understand.

“THE COURT: Now, in terms of waiving your right to jury trial in both

the guilt and if there is a penalty phase, that phase also, are you doing this of your

own free will?

“MR. DANIELS: Yes.

“THE COURT: Have any threats been made against you or any members

of your family to get you to waive your right to a jury trial?

“MR. DANIELS: No.

“THE COURT: Have you been subject to any force to get you to waive

your right to a jury trial?

“MR. DANIELS: No.

“THE COURT: Is there some consideration or secret promise or deal or

something that I am not aware of that’s making you or forcing you to waive your

right to jury trial and proceed by way of court trial?

“MR. DANIELS: No.

“THE COURT: Are you presently under the influence of any substance

that would cause you not to be able to think clearly?

“MR. DANIELS: No.

“THE COURT: Do you know what you are doing?

“MR. DANIELS: Yes.

“THE COURT: All right. Do the People join, also?

29

“[THE PROSECUTOR]: Yes.

“THE COURT: Also in the waiver of jury trial rights as to the guilt phase

and also if there is a penalty phase, that the People waive their right to a jury trial

in the penalty phase?

“[THE PROSECUTOR]: Yes, People join.

“THE COURT: All right. Do you know what you have just done, sir?

“MR. DANIELS: Yes.

“THE COURT: All right. The Court finds that Mr. Daniels understands

and freely and voluntarily waives his right to jury trial and has elected to proceed

by way of court trial in the guilt phase and also by way of court trial in the penalty

phase if, in fact, there is a penalty phase. And these waivers are now made part of

the records of this Court.”

The record contains no jury waiver form, and there is no indication that one

was ever signed by Daniels.

During the afternoon session of that January 5th proceeding, Daniels —

still self-represented — stated his intent to plead guilty to the noncapital counts

and to enter pleas admitting the truth and validity of two prior convictions. In

preparation for accepting these pleas, the court obtained oral waivers of Daniels’s

constitutional rights, including the right to jury trial, as shown in the following

exchange:

“THE COURT: All right. You have the right to a jury trial. Do you

understand that?

“MR. DANIELS: Yes.

“THE COURT: Do you realize that by pleading guilty or admitting the

truth and validity of the prior felony convictions alleged against you, you will give

up your right to a jury trial as to these matters?

“MR. DANIELS: Yes.

30

“THE COURT: And do you give your right up to a jury trial as it pertains

to these matters?

“MR. DANIELS: I do.”

On January 16, 2001, the court began a bench trial on the remaining

charges. Before the prosecutor began his first examination, the court sought to

confirm Daniels’s decision to waive jury trial. In doing so, the court said to

Daniels, “We also talked about your right to a jury trial with members of these

communities that would determine whether or not — the question of guilt or

innocence. [¶] Do you remember that?” Daniels responded yes. He reaffirmed

his desire to waive trial by jury for both the guilt and penalty phases.

At the start of the penalty phase, the court again informed Daniels that he

had a right to have a jury to try the penalty phase, and the court would empanel a

jury to determine penalty if he so chose. Daniels still wished to proceed by court

trial.

2. Analysis

The record demonstrates Daniels personally and expressly waived a jury

trial regarding guilt, special circumstances, and penalty. This Daniels does not

deny, and indeed, the record reveals no equivocation in his request to waive a jury

for all phases of trial. He makes no claim that his waiver was coerced or

otherwise involuntary. What Daniels instead contends is that his waiver was

infirm because the record does not demonstrate he made his waiver with full

awareness of the nature of the right being relinquished. The court, he contends,

did not inform him that a jury would be comprised of 12 impartial members who

must reach a unanimous verdict, nor did it explain the consequences of a hung

jury. The record contains no indication that counsel discussed the jury trial right

during the course of representation, and Daniels asserts that he received no

advisements from counsel regarding this right.

31

Under both the federal Constitution and the California Constitution, a

defendant in a criminal prosecution is guaranteed the right to a jury trial. (People

v. Weaver (2012) 53 Cal.4th 1056, 1071 (Weaver).) Nonetheless, as enshrined in

our state Constitution, 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 implied from a defendant’s conduct.” (People v. Holmes (1960) 54

Cal.2d 442, 443–444 (Holmes).) Moreover, a court may not accept a defendant’s

waiver of a jury trial unless the waiver “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.’ ” ’ ” (Collins, supra, 26 Cal.4th at p. 305.)

We uphold the validity of a jury waiver “ ‘if the record affirmatively shows

that it is voluntary and intelligent under the totality of the circumstances.’ ”

(Collins, supra, 26 Cal.4th at p. 310, italics added.) We do not start with a

presumption of validity that may only be rebutted by signs of a defendant’s

confusion or unwillingness in entering a waiver. Instead, a reviewing court

satisfies itself of a legitimate waiver only when the record affirmatively

demonstrates it was knowing and intelligent.

Our inquiry into the totality of the circumstances requires us to take

nuanced account of the full set of relevant facts in this case. (See Adams v. U.S. ex

rel. McCann (1942) 317 U.S. 269, 278 (Adams) [“[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.”].) In our prior cases, we

have assessed whether a knowing and intelligent waiver was given by examining

factors such as the nature of the colloquy prior to the court’s acceptance of a

32

waiver, the presence of counsel and references to discussions between the

defendant and counsel regarding the jury right, and the existence and contents of a

written waiver. For instance, this court has upheld an express jury waiver made

“with counsel’s consent and agreement” where other circumstances bolstered the

conclusion that defendant’s waiver was knowing and intelligent. (People v.

Cunningham (2015) 61 Cal.4th 609, 637.) In Cunningham, the represented

defendant received “a full explanation from the court of the right and the

consequences of the waiver.” (Ibid.) The defendant expressly acknowledged,

moreover, that “(1) he had an absolute right to a jury trial in both the guilt and

penalty phases of his trial, (2) in a jury trial, if one of the 12 jurors was not

convinced beyond a reasonable doubt that defendant was guilty, the jury could not

return a guilty verdict, (3) if he waived his right to a jury trial, instead of 12 people

deciding the issue of his guilt or innocence, the judge alone would make that

decision, and (4) it could be easier for the prosecution to convince only one

person, as opposed to 12, that defendant was guilty beyond a reasonable doubt.”

(Id. at p. 636.)

We were persuaded, in another case, that a knowing and intelligent waiver

had been taken after considering how the defendant had executed two written

waivers reflecting his desire to give up his right to trial by jury; one of the forms,

also signed by counsel, stated that defense counsel “ ‘fully explained’ ” to the

defendant the terms “ ‘jury trial’ ” and “ ‘court trial’ ” and the “ ‘difference

between a “jury trial” and a “court trial.” ’ ” (Weaver, supra, 53 Cal.4th at p.

1070.) In addition, the court described to the defendant several differences

between the two types of trials, informing him that he had an absolute right to a

unanimous decision by twelve “ ‘citizens of the community.’ ” (Ibid.) We have

upheld another waiver as knowing and intelligent where the prosecutor explained,

among other items, “what a jury trial was and that the jury would have to agree

33

unanimously on guilt, special circumstances, and penalty” and both defense

counsel and the prosecutor joined in the waiver. (People v. Scott (1997) 15

Cal.4th 1188, 1208 (Scott).) And in yet another case, we found a valid waiver

where the “[d]efendant 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” and, prior to accepting the waiver, the court

“engaged [defendant] in an extensive and thorough voir dire” which included this

advisement: “You understand, also, that if you do waive jury and submit it to the

Court, the Court will act solely. If you have a jury trial, before a verdict can be

returned either way, it requires unanimous agreement of all 12 jurors; do you

understand that?” (People v. Robertson (1989) 48 Cal.3d 18, 36–37 & fn. 5.)

These facts of our prior cases by no means establish requirements for effective

jury waivers; they simply illustrate instances in which this court has found waivers

to be knowing and intelligent.

Consistent with our precedent and in recognition of the fact-intensive

nature of our inquiry, we first analyze the trial court’s record advisements

preceding its acceptance of Daniels’s jury waiver. The trial court’s admonitions

are relevant only to the extent that they shed light on the state of a defendant’s

knowledge at the time of waiver about the nature of the right he or she would give

up and the consequences of doing so. Yet the in-court colloquy serves an essential

purpose of facilitating meaningful appellate review of a defendant’s waiver of

fundamental constitutional rights. Following the high court’s decision in Boykin v.

Alabama (1969) 395 U.S. 238, this court amended our test for determining the

validity of guilty pleas — one that previously required explicit admonitions — to

align with the federal test. (People v. Howard (1992) 1 Cal.4th 1132, 1175.) In

that regard, we established that a guilty plea is effective “if the record

affirmatively shows that it is voluntary and intelligent under the totality of the

34

circumstances.” (Ibid.) We further explained that “explicit admonitions and

waivers still serve the purpose that originally led us to require them: They are the

only realistic means of assuring that the judge leaves a record adequate for

review.” (Id. at pp. 1178–1179; accord, Koontz, supra, 27 Cal.4th at p. 1071 [“the

purpose of the suggested Lopez admonitions is to ensure a clear record of a

knowing and voluntary waiver of counsel”].) A meaningful colloquy — or lack

thereof — bears on our ability, on review, to confirm whether a valid waiver of

rights was given.

This court has persistently declined to mandate any specific admonitions

describing aspects of the jury trial right. (See, e.g., Weaver, supra, 53 Cal.4th at p.

1074; People v. Sivongxxay (2017) 3 Cal.5th 151, 170 (Sivongxxay).) We

continue to eschew any rigid rubric for trial courts to follow in order to decide

whether to accept a defendant’s relinquishment of this right. But the trial court is

not merely a passive receiver of an attempted waiver. We have long recognized

the responsibility of the courts to adequately advise defendants before accepting

their waivers of fundamental rights. The court’s obligation “to advise [the]

defendant of his right to jury trial” and to “determine impartially whether [the]

defendant’s waiver of jury trial was knowing, intelligent, and voluntary” is a

“constitutional procedural duty.” (Collins, supra, 26 Cal.4th at pp. 308–309; see

also U.S. v. Duarte-Higareda (9th Cir. 1997) 113 F.3d 1000, 1003 [under certain

circumstances, district court may be “obliged to conduct a colloquy . . . to carry

out its ‘serious and weighty responsibility’ of ensuring that a defendant’s jury

waiver is voluntary, knowing, and intelligent”].) How to best achieve this goal is

left to the trial courts. Although we offer some exemplars of advisements and

colloquy elements that may be helpful in establishing that a waiver was knowing

and intelligent, post, we do not seek to require that trial courts provide any

particular advisements.

35

If the trial court is not persuaded the waiver is knowing and intelligent, the

court cannot accept it. (See Collins, supra, 26 Cal.4th at p. 305 [“a defendant’s

waiver of the right to jury trial may not be accepted by the court unless it is

knowing and intelligent”].) The federal Constitution, after all, guarantees the right

to a jury trial but does not provide for a right to a court trial. (Singer v. United

States (1965) 380 U.S. 24, 34–35.) As the high court has elaborated, a jury trial is

the “normal” and often “preferable mode of disposing of issues of fact in criminal

cases above the grade of petty offenses.” (Patton v. United States (1930) 281 U.S.

276, 312 (Patton); accord, U.S. v. Martin (6th Cir. 1983) 704 F.2d 267, 272

(Martin).) Not only must the right to jury trial be “jealously preserved,” but due to

the traditional and important role of the jury as a factfinding body in criminal

cases, a waiver is only effective if given with the consent of government counsel,

the sanction of the court, and “the express and intelligent consent of the

defendant.” (Patton, at p. 312.) While the right to jury trial is waivable, “we ‘do

not presume acquiescence in the loss of fundamental rights.’ ” (Johnson v. Zerbst

(1938) 304 U.S. 458, 464.)

What the court did in this case –– immediately after accepting Daniels’s

counsel waiver on December 20, 2000 –– was ask if Daniels wished to confirm the

jury trial date. Daniels replied: “Yes. Keep it the same date for jury.” He did not

ask about waiving a jury. In fact, it was the judge who broached the issue on

January 5, 2001. He did so by asking whether Daniels wished to proceed by jury

trial or court trial. In response to the court’s inquiry, Daniels opted for a court

trial. Up until that point, Daniels never explicitly requested or referenced a court

trial. (Cf. Sivongxxay, supra, 3 Cal.5th at p. 167 [defendant initiated request to

waive jury].)

The court orally advised Daniels that the judge alone, instead of a jury,

would make determinations in the different phases of his capital trial. The court

36

admonished Daniels that, in the event of waiver, the judge alone would determine

whether Daniels was guilty, whether special circumstances were true, and whether

the appropriate punishment was death. This information may have illuminated the

nature of the court trial Daniels was opting to pursue. But Daniels was provided

nearly no information about the right he would abandon. The court did not, prior

to accepting the waiver, elaborate on what a jury trial entails, other than that it is

not the same thing as a trial before a judge. The court did not explain anything

about the nature of the jury — for example, what constitutes a jury, how a jury is

selected, or that jury members must be impartial and their verdict unanimous.

Daniels replied yes to the court’s questions, “Do you know what you are doing?”

and, moments later, “Do you know what you have just done?” With that, the court

accepted Daniels’s express oral waiver on January 5. The court never inquired

whether — even in a general sense — Daniels understood what a jury trial

entailed, or if he had any questions about the waiver of the jury right. The waiver

was never memorialized in writing.

When the guilt phase commenced a week and a half later, on January 16,

2001, the court sought to orally confirm that Daniels maintained his desire to

proceed by way of court trial. The court stated, “We also talked about your right

to a jury trial with members of these communities that would determine whether

or not — the question of guilt or innocence. [¶] Do you remember that?” The

court was mistaken on this point: it had not previously informed Daniels that

members of the community would determine guilt or innocence. Nonetheless,

Daniels responded “Yes” to the court’s query of whether he recalled such an

advisement. This exchange reveals a discrepancy between what the court

evidently believed it told Daniels and what it actually told him. Daniels’s

affirmative response as to whether he remembered the purported previous

advisement, despite no record it was given, ultimately provides little support for

37

conclusion that Daniels’s waiver was based on full awareness of the nature of the

jury trial right.

The appellate record contains a January 4, 2001, memorandum with the

subject line “Waivers,” which was filed by the prosecutor. In this memorandum,

the prosecutor requested that the court conduct supplemental colloquies as to

various waivers. One proposed advisement was, “You have an absolute right to

have your case heard by a jury of twelve persons.” The court did not provide this

advisement to Daniels, nor did it mention this memorandum in any proceedings.

The record does not establish that Daniels ever received, much less read or

understood, this memorandum. Although Daniels is listed as an intended

recipient, there is no proof of service or any notation of service on the document.

In contrast, a “Notice of Evidence in Aggravation” memorandum dated two days

earlier on January 2 bears the notation, “Hand delivered to Daniels 1/3/01,” with

the prosecutor’s initials. The Notice of Evidence in Aggravation memorandum

was also discussed on the record in Daniels’s presence, while the Waivers

memorandum was never referenced in court. The Waivers memorandum does not

contain indicia of reliability which would accompany a written waiver signed by

the defendant or a document referenced during court proceedings. Thus, the

existence of this memorandum is minimally probative in our assessment of

Daniels’s knowledge. We know of no other written materials in the record

regarding Daniels’s waiver of his jury right.

To its credit, the court obtained Daniels’s express waiver for three separate

phases of trial: guilt, special circumstances, and penalty. The prosecutor, perhaps

cognizant of the People’s interest in ensuring that the record reflected a valid

waiver, interjected at one point to confirm that Daniels would waive a jury for the

special-circumstance determinations. What remains both striking and relevant,

38

however, is that the court accepted Daniels’s waiver without ever inquiring as to

Daniels’s understanding of any substantive aspect of what a jury is.

The People point out that Daniels “never expressed confusion or asked for

clarification regarding his jury trial right.” While this may be true, we decline to

infer Daniels’s knowledge from his failure to ask unprompted questions of the

court. And though an utterance of bewilderment might have weighed in favor of

our finding Daniels’s waiver to not be knowledgeable, the absence of such an

expression does not push us toward the inverse finding of a knowing waiver. The

phrase “You don’t know what you don’t know” encapsulates the futility of relying

on defendants to raise questions or identify misunderstandings on their own when

they lack the very basis to understand what lies beyond the scope of their

knowledge.

We do not dispute that Daniels expressly affirmed –– multiple times –– his

desire to waive a jury for all trial phases. But we decline to conflate a knowing,

intelligent waiver with an emphatic one. The former is constitutionally required;

the latter is not. Moreover, our concurring and dissenting colleagues are mistaken

in declaring that we “dismiss Daniels’s repeated affirmations that he understood

his right to a jury trial and the consequences of forgoing it.” (Conc. & dis. opn. of

Corrigan, J., post, at p. 16.) Not once did Daniels say he understood what the jury

right entails. We are not persuaded that Daniels’s purported “overarching aim . . .

to accept responsibility for the charged crimes” is relevant to whether his jury trial

waiver was knowing and intelligent. (Conc. opn. of Kruger, J., post, at p. 2.) That

a defendant “may have made a ‘tactical choice’ to waive a jury tells us nothing

about whether he understood what he would be giving up by making such a

choice.” (U.S. v. Shorty (9th Cir. 2013) 741 F.3d 961, 969 (Shorty).) Nor was

Daniels permitted by statute to plead guilty to capital charges in any event, so it

strains logic to assume we should in any way give weight to his desire to plead

39

guilty when — after it was settled that Daniels would proceed to trial on the

murder counts and related charges — the trial court was still required to ensure a

constitutionally valid proffered waiver.

Confidence does not imply comprehension. Individuals are entirely

capable of categorically asserting a position without awareness that the roots of

that position lie in ignorance or lack of reflection. It was incumbent upon the

court to verify, not merely to assume, that Daniels indeed grasped the actual nature

of the jury right –– even if only at a basic level. In his own mind, Daniels may

have had an impression of what a jury trial is. Just what impression that was —

and whether it bore any relationship at all to the required constitutional standard

— is well beyond what we can discern from this record.

Our concurring and dissenting colleagues may believe Daniels

demonstrated “some legal sophistication by filing a written motion to represent

himself and referring to his ‘Faretta’ right.” (See conc. & dis. opn. of Corrigan, J.,

post, at p. 16.) That’s some definition of “legal sophistication.” The “written

motion” was a fill-in-the-blank Faretta form motion; Daniels failed even to fill in

all the blanks. He also handwrote a note to the judge that stated, “I am also

Requesting that I Be allowed to Represent myself, my feretta [sic] Rights.” This

misspelled reference to Faretta perhaps disclosed the gist of his aim to represent

himself, but Daniels’s request does not demonstrate legal sophistication, much less

his understanding of the jury trial right. Even a defendant with enough acumen to

invoke the Faretta right by filling in all the blanks of a form or drafting his or her

own motion in no way forfeits the protections rooted in the wholly distinct

requirement that waiver of a jury trial right must be knowing and intelligent. Of

course, what must be knowing and intelligent for present purposes is Daniels’s

understanding of the jury trial right, not his appreciation of the separate Faretta

right.

40

A proper weighing of the totality of the circumstances forces us to take into

account Daniels’s lack of representation, even if it was his own choice to exercise

his right to self-representation. The sparseness of the colloquy’s substance in this

case is especially conspicuous given that Daniels was without the benefit of

counsel when he proffered his waiver. Counsel plays a crucial part in transmitting

information to the client. Time and time again, our precedent has recognized as

much, incorporating within the totality of relevant circumstances not only the fact

of representation by counsel, but also record references to discussions between

counsel and defendant. (See, e.g., Weaver, supra, 53 Cal.4th at p. 1075 [valid

waiver, in part, because “the court gave [the defendant] ample time to consider

and reconsider his decision and to discuss it fully with counsel”]; People v. Scott,

supra, 15 Cal.4th at p. 1209 [“That the defendant discussed the decision with

counsel and relied on counsel’s advice strengthens, not weakens, the waiver’s

validity”]; People v. Diaz (1992) 3 Cal.4th 495, 571 [valid waiver, in part, because

“defendant acknowledged that he had thoroughly discussed the jury waiver with

his attorney”].) Here, Daniels had representation for approximately eleven months

before he discharged counsel on December 20, 2000, and about four of those

months elapsed after a trial date had been set. Yet there is no indication that

counsel had at any point discussed with Daniels the substantive nature of a jury

trial or the consequences of giving one up in favor of a court trial in his capital

case. The People argue we should “presume[] that competent counsel would have

informed [Daniels] of the nature of a jury trial.” Although we decline the People’s

invitation to speculate as to possible discussions with counsel which would have

had no bearing on decisions made or topics even mentioned on the record during

the course of counsel’s representation, we observe that their argument correctly

evinces the importance our cases have placed on an attorney’s role in explaining

the jury right to a layperson defendant, and not the mere fact of representation.

41

As we have found, ante, Daniels’s waiver of counsel was knowing and

intelligent. But while Daniels’s choice to represent himself meant that he agreed

to assume certain duties of counsel, perhaps to his detriment, this decision did not

constructively vest him with the knowledge and intelligence he was entitled to

have as a defendant entering a jury trial waiver. It bears repeating that our cases

do not treat a jury trial waiver as valid solely because a defendant has counsel; we

have ascribed importance to the presence of counsel only insofar as it tells us

something about the state of a defendant’s substantive awareness of the nature of

the jury trial right and the consequences of forgoing it.

Here, Daniels’s waiver of counsel did not signify his willingness to forgo

access to basic, meaningful information about his separate jury trial right. When

the court advised Daniels of what self-representation would entail, it certainly did

not probe Daniels’s knowledge of the jury right, nor did it mention that the court

would no longer be obliged to ensure his jury waiver was knowing and intelligent.

Hence, Daniels’s valid counsel waiver did not absolve the court of its duty to

ensure a valid waiver of his separate constitutional right to be tried by a jury.

Considering the inferences this court has consistently drawn from counsel

representation in assessing the validity of jury waivers, our inability to surmise

that Daniels had any discussions with counsel about a jury waiver means that we

have one less assurance that Daniels understood the nature of the right he was

relinquishing and the effects of doing so.

A defendant’s knowing and intelligent waiver of jury trial is required by

both the state and federal Constitutions and applies to both represented and self-

represented defendants. In Barnum, we invalidated a rule requiring trial courts to

advise in propria persona defendants of the privilege against compelled self-

incrimination before they were called by the People or testified in their own

defense. (People v. Barnum (2003) 29 Cal.4th 1210 (Barnum) [disapproving

42

Killpatrick v. Superior Court (1957) 153 Cal.App.2d 146 and People v. Kramer

(1964) 227 Cal.App.2d 199].) That rule, known as the Killpatrick-Kramer rule —

which did not mandate advisements for represented defendants but did mandate

them for in propria persona defendants — was a judge-made prophylactic rule of

procedure. (Barnum, at p. 1218.) We reached our holding only after observing

that the Killpatrick-Kramer rule did “not have any counterpart in the federal courts

or in the courts of the vast majority of our sister states.” (Barnum, at p. 1214.) In

doing so, we also rejected the argument that “because a right like the privilege

against compelled self-incrimination may be lost only by waiver, and because a

waiver is effective only if it is knowing, intelligent, and voluntary, the

effectiveness of a waiver is ensured only if the trial court gives an advisement of

what is to be relinquished.” (Id. at p. 1224; see id. at p. 1223.) We explained,

among other things, that the right against self-incrimination is a right that can be

forfeited at trial by failure to assert it in a timely fashion, and the law does not

generally demand that courts issue special admonitions to self-represented litigants

concerning similar matters of trial procedure and strategy. (Id. at pp. 1223–1224.)

The jury trial right, by contrast, is not subject to forfeiture. (Collins, supra,

26 Cal.4th at p. 305, fn. 2 [the jury trial right is a “fundamental constitutional right

that, although clearly waivable, may be waived only if there is evidence in the

record that the decision to do so was knowing, intelligent, and voluntary”], as cited

in Barnum, supra, 29 Cal.4th at p. 1224.) The question here thus is not, as in

Barnum, whether self-represented litigants should receive special admonitions

about trial practice to avoid inadvertent or ill-advised forfeitures of constitutional

rights. The question is instead whether we can conclude that “there is evidence in

the record that [a defendant’s waiver decision] . . . was knowing, intelligent, and

voluntary” (Collins at p. 305, fn. 2), where no such evidence appears, solely

43

because the defendant chose to forgo representation by counsel. Thus, Barnum is

of little relevance in the instant case.

Similarly, cases from other jurisdictions do not aid the People here. Our

concurring and dissenting colleagues draw on DeRobertis, a habeas case from the

Seventh Circuit, for the proposition that a knowing and intelligent waiver requires

only that a defendant “understood that the choice confronting him, was on the one

hand, to be judged by a group of people from the community, and on the other

hand, to have his guilt or innocence determined by a judge.” (U.S. ex rel. Williams

v. DeRobertis (7th Cir. 1983) 715 F.2d 1174, 1180 (DeRobertis).) The court here

told Daniels as much –– at least prior to the presentation of evidence at trial, if not

at the time the jury waiver was actually entered. But the Seventh Circuit’s finding

of a valid waiver hinged in significant part on the role of competent counsel in

advising the defendant. (DeRobertis, at p. 1181, italics added [“We are

unpersuaded that . . . it would be fundamentally unfair to give effect to a waiver

executed without knowledge of [certain jury trial] attributes, particularly where

the defendant was represented by competent counsel . . . .”]; id. at pp. 1177, 1180–

1181 [defendant waived jury trial on advice of counsel].)

This reasoning reinforces an important principle: Courts generally rely on

counsel to transmit to defendants critical information about whether to waive the

jury trial right and the consequences of waiving it, and they do not assume that

defendants otherwise already possess requisite information to make a knowing and

intelligent waiver. DeRobertis does not hold that a bare-bones mention of trying

the case to a judge rather than jury, without further explanation, would be

sufficient in the absence of advice from competent counsel or other affirmative

indications of the defendant’s legal sophistication. (Cf. Adams, supra, 317 U.S. at

pp. 270–271 [self-represented defendant indicated that he had studied law and

repeatedly demanded a bench trial]; Maryland v. Bell (1998) 720 A.2d 311, 319–

44

320 [distinguishing prior decision in which the defendant “was given no

explanation of the nature of a jury trial,” other than a minimal mention of trying

the case before the court rather than a jury, from a case in which the defendant was

advised of certain “other fundamentals of a jury trial,” and the defendant and “his

trial counsel also had discussed the right to a jury trial prior to the hearing”].)

To facilitate courts’ enforcement of constitutional safeguards, we offer

general guidance for trial courts in ensuring a defendant’s knowing and intelligent

jury waiver in favor of court trial. As explained in our recent Sivongxxay decision,

this court recommends that trial judges conduct a waiver colloquy expressly

relaying at least four “basic mechanics of a jury trial”: “(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.” (Sivongxxay, supra, 3 Cal.5th at

p. 169.) Additional questioning may assist the court in ensuring a defendant

comprehends what the jury right entails and the consequences of waiving it. (See

id. at pp. 169–170.) In situations where a defendant has waived counsel, we also

endorse the practice of appointing standby counsel for the limited purpose of

discussing with the defendant the decision to waive a jury. (See, e.g., U.S. v.

Sammons (6th Cir. 1990) 918 F.2d 592, 595 [self-represented defendant consulted

with appointed standby counsel during a 10-minute recess before making an oral

motion to waive jury trial]; State v. Clemons (2002) 273 Kan. 328, 340 [standby

counsel available, and self-represented defendant indicated to court he had

discussed jury waiver with counsel]; State v. Barros (Haw.Ct.App. 2004) 95 P.3d

14, 22–23 [court thrice referred pro per defendant to a public defender for

consultation about jury waiver].) This may be done even when, as here, a

defendant declines offers for standby or advisory counsel, for “a court may

45

appoint counsel over an accused’s objection in order to protect the public interest

in the fairness and integrity of the proceedings.” (Massie v. Sumner (9th Cir.

1980) 624 F.2d 72, 74; accord, McKaskle v. Wiggins (1984) 465 U.S. 168, 178

[appointment of standby counsel to represent defendant does not violate Sixth

Amendment right to self-representation, even if appointment is made over

defendant’s objection].)

The People maintain that Daniels was sufficiently aware of essential

aspects of a jury trial because of his extensive experience with the criminal justice

system, and not merely because of the advisements given in this case. The record

contains certified copies of five of Daniels’s prior felony convictions. Two of

these convictions were introduced at the guilt phase to establish prior strikes

within the meaning of the Three Strikes Law: a January 1986 conviction for

attempted first degree burglary; and a July 1991 robbery conviction. During the

penalty phase, the prosecution additionally introduced certified copies of three

prior convictions as evidence in aggravation: a March 1988 conviction for

possession of a controlled substance; an October 1990 conviction for sale of a

controlled substance; and a February 1998 conviction for second degree burglary.

All five convictions were the result of guilty pleas, and in all those plea

proceedings Daniels was represented by counsel. In none of those cases did the

presiding judge conduct any inquiry into Daniels’s understanding of the jury right

beyond counsel’s representations. The plea colloquy for Daniels’s 1986 attempted

burglary conviction reflects a court advisement that Daniels had a right to either a

jury trial or a court trial, with no discussion of what a jury trial entails. And the

record of Daniels’s February 1998 burglary plea is comprised of a complaint, a

series of minute orders, and a judgment — with no recorded advisement of rights.

For each of Daniels’s felony pleas in March 1988, October 1990, and July 1991,

counsel represented that he or she advised Daniels — each time with the exact

46

same language — “that he cannot be convicted unless all twelve jurors agree that

the prosecution has proved his guilt beyond a reasonable doubt.”

Given these facts, the People’s contention raises a fundamental question:

How much weight to afford such prior pleas in assessing the totality of the

circumstances indicating whether a jury trial right waiver is “knowing and

intelligent”? It is true that we have previously inferred some degree of a

defendant’s knowledge and intelligence of the jury right from a vaguely

articulated cognizance of criminal history. (See People v. Langdon (1959) 52

Cal.2d 425, 432 [no duty of trial court to inquire into waiver of jury trial, in part,

because defendant had “been before the criminal courts on at least three previous

occasions”].) This court has also once upheld a guilt phase jury waiver after

consideration of several factors, including the fact the defendant had previously

pleaded guilty to two prior offenses, once signing a waiver stating that he “fully

underst[ood]” his right to a jury trial. (Sivongxxay, supra, 3 Cal.5th at p. 167.)

We are mindful, however, that courts — both state and federal — exercise

prudence in determining what types of prior criminal experience would be most

relevant to the waiver at issue, and nothing in our prior cases supports the

conclusion that a defendant’s receipt of previous advisements is bound to satisfy

the requirement that a subsequent waiver of a jury trial right be knowing and

intelligent.

Consider Parke v. Raley as an example. When the high court stated that

“evidence of a defendant’s prior experience with the criminal justice system [is]

relevant to the question whether he knowingly waived constitutional rights,” it did

so in the context of examining evidence of prior guilty pleas to determine the

validity of the guilty plea at issue. (Parke v. Raley (1992) 506 U.S. 20, 37.) And

when criminal history is brought to bear on an inquiry into a waiver of the right to

a jury trial in favor of a bench trial, the most relevant experience is previously

47

having undergone a criminal trial. (See, e.g., People v. Mosby (2004) 33 Cal.4th

353, 364 [“defendant, who was represented by counsel, had just undergone a jury

trial”]; U.S. v. Carmenate (2d Cir. 2008) 544 F.3d 105, 108–109 [“Defendant’s

experience with the criminal justice system—having been recently tried before,

and convicted by, a jury for similar offenses—is further evidence that he

understood the nature of a jury trial”]; State v. Spurlock (La. 2015) 175 So.3d 955,

956 [“defendant has past experience as an accused in the trial of a criminal

prosecution where he was found guilty by a jury”]; State v. Rizzo (2011) 303

Conn. 71, 93 [“because the defendant previously had been sentenced to death by a

jury, he had particularly relevant personal experience with the criminal justice

system” and “defendant responded affirmatively to the trial court’s query: ‘[S]o

you have been through this process before . . . so you have a complete

understanding [of] how that works. Is that a fair statement . . . ?’ ”].) Here, we

know of no evidence that Daniels had ever previously stood trial.

Nor can we ignore that the plea colloquies describing certain elements of

the jury right preceded Daniels’s jury waiver in this matter by a decade in one

case, 11 years in another case, and 13 years in another. Unless we assume Daniels

already harbored the kind of detailed knowledge of the jury system that would

make the previous advisements all but irrelevant, to weigh those previous

advisements so heavily implies an enormously contingent conclusion about the

quality of Daniels’s memory and the extent of knowledge he gleaned from those

advisements. In a recent Ninth Circuit case, the government likewise asserted the

defendant’s waiver was knowing and intelligent because he had prior experience

with the criminal justice system, including both prior guilty pleas and a three-day

jury trial. (Shorty, 741 F.3d at p. 968.) In Shorty, the court rejected this argument

because, among other reasons, “[E]ven if [the defendant] was properly instructed

on his right to a jury trial, nothing suggests that he retained that information ten,

48

fifteen, or even twenty years later when he waived the right again in 2010.” (Ibid.)

The record in Daniels’s case does not contain evidence that Daniels had cognitive

impairments that may have affected his ability to understand the consequences of

waiving a jury trial, unlike the record in Shorty (see id. at p. 967). Yet we find

only an attenuated connection, at best, between Daniels’s jury trial right waivers in

this capital case and the oral advice Daniels received in connection with guilty

pleas a decade earlier.

A court may not accept a jury waiver that is not “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.’ ” ’ ” (Collins,

supra, 26 Cal.4th at p. 305.) Here, the court may have advised Daniels of a

modicum of meaningful information about the nature of a jury trial before

accepting his waiver, insofar as it told him that the right applied to each of the

three phases of trial. Daniels was orally informed that the judge alone would

decide his fate at different stages in his trial. Daniels also consistently replied in

the affirmative when asked whether he understood what he was being told.

Nonetheless, Daniels tendered his waiver without assistance of counsel —

appointed or standby. And nowhere does the record offer even a suggestion that

he ever discussed the jury right with competent counsel. We do not find that the

court made a sufficient effort to assure that this self-represented defendant

understood any substantive aspects of the fundamental jury trial right he would

give up in this case. The court’s only reference to any characteristic of a jury

occurred when it asked Daniels — a week and a half after the waiver was accepted

— whether he recalled an earlier conversation (that had not occurred) regarding

“members of these communities” who would determine guilt or innocence. Guilty

plea colloquies from over 10 years prior demonstrate that Daniels had previously

in his life been orally advised of certain characteristics of a jury trial. But we are

49

not persuaded that these remote plea advisements can patch the record’s void on

this question of whether Daniels waived his jury right in this case in accordance

with constitutional requirements. We have never before found an effective waiver

of jury based on so few available inferences. Neither the People nor any of our

concurring and dissenting colleagues is able to identify a single case when our

court has upheld a jury waiver based on so thin a record. We conclude, based on

the totality of the circumstances of this record, that the trial court erred in

accepting Daniels’s jury trial waiver.

Unfortunately, a majority of the court does not share our view that

Daniels’s waivers of jury trial were invalid as to all three phases of trial. Instead,

four members of the court today would find Daniels’s guilt phase and special-

circumstance phase waivers to be knowing and intelligent. (See conc. & dis. opn.

of Corrigan, J., post, at p. 26; conc. opn. of Kruger, J., post, at p. 2.) To elucidate

why we do not concur in the judgment supported by a court majority to affirm

Daniels’s guilt convictions and the true findings of the special circumstances, we

assess the consequences of the error we have found.

A failure to obtain an informed waiver results in a complete denial of

defendant’s right to a jury trial. (See People v. Tran (2015) 61 Cal.4th 1160,

1169.) Both the high court and this court hold that the complete deprivation of the

constitutional jury trial right is a structural error compelling reversal. (See Rose v.

Clark (1986) 478 U.S. 570, 578 [“the State cannot contend that the deprivation

was harmless because the evidence established the defendant’s guilt; the error in

such a case is that the wrong entity judged the defendant guilty”]; Collins, supra,

26 Cal.4th at p. 312 [“improperly inducing a waiver of that right amounts to a

‘structural defect in the proceedings’ requiring that the judgment of conviction be

set aside without the necessity of a determination of prejudice”]; People v. Cahill

(1993) 5 Cal.4th 478, 501 [“the denial of the defendant’s right to a jury trial . . .

50

involve[s] fundamental ‘structural defects’ in the judicial proceedings” (citation

omitted)].) “ ‘[I]f a court should undertake to deny to a defendant charged with a

felony the right of trial by jury, and after a hearing of the evidence render a

judgment of conviction, it cannot be doubted that such judgment should be set

aside even though there had been the clearest proof of guilt.’ ” (Cahill, at p. 490,

quoting People v. O’Bryan (1913) 165 Cal. 55, 65–66 (lead opn. of Sloss, J.).)

In California, an effective waiver of the right to a jury trial requires that a

defendant’s waiver be express, voluntary, knowing, and intelligent. (Holmes,

supra, 54 Cal.2d at pp. 443–444 [waiver must be “express[ed] in words . . . and

will not be implied from a defendant’s conduct”]; Collins, supra, 26 Cal.4th at p.

305 [court may not accept a defendant’s waiver of a jury trial “unless it is knowing

and intelligent . . . as well as voluntary”].) In Ernst, we found that the failure to

obtain the defendant’s express waiver of his right to a jury trial required reversal.

(People v. Ernst (1994) 8 Cal.4th 441, 446.) In Collins, we held that the court’s

error of inducing an involuntary waiver from the defendant amounted to a

structural defect. (Collins, supra, 26 Cal.4th at p. 312.) Knowledge and

intelligence are required components of an effective waiver of jury trial and are

equally pivotal as the requirements that a waiver be express and voluntary. Hence,

a court’s failure to obtain a knowing and intelligent waiver falls within the limited

class of errors that infect the integrity of proceedings to such a degree that they are

reversible per se.

The court obtained Daniels’s waivers of jury trial for guilt, special

circumstance determinations, and penalty immediately in succession after

conveying roughly the same information. Constitutional inadequacies, we find,

pervade the entire trial. Daniels was denied his fundamental right to a jury trial

under the state and federal Constitutions. We cannot attempt to assess the

prejudice Daniels suffered as a result of this deprivation. In accordance with

51

precedent from both the high court and our court, we would reverse the judgment

of the superior court on all counts tried, on the basis of structural error arising

from Daniels’s ineffective waivers of jury trial. We respectfully dissent from the

judgment of the court, which affirms the guilt convictions for all counts tried and

the true findings of special circumstances.

The record is even more bereft of support for the conclusion that Daniels’s

penalty phase waiver was valid. Any weight that could conceivably be accorded

to Daniels’s prior pleas, for example, would be diminished in an assessment of

whether there is support in the record to conclude that Daniels’s jury waiver at the

penalty phase was knowing and intelligent. Even supposing Daniels retained the

information received orally in connection with guilty pleas to burglary and drug

charges over 10 years prior, we are not persuaded there is an adequate basis to

presume Daniels’s knowledge that any particular jury attributes would necessarily

translate to the unique context of punishment determinations in capital trials.

Although the court provided Daniels another opportunity to opt for a jury

trial right before the penalty phase, it did not describe any aspect of a jury’s role in

the penalty phase or otherwise add to what had been conveyed to Daniels earlier in

the trial. A defendant’s decision to waive the right to have a jury determine

whether he or she will be subjected to the death penalty is enormously

consequential, as “[t]he decision to waive the right to jury sentencing may deprive

a capital defendant of potentially life-saving advantages.” (Jells v. Ohio (1991)

498 U.S. 1111, 1114 (dis. opn. from cert. denial of Marshall, J.).) If it is

appropriate to question just how much generalized knowledge of the criminal jury

exists in a typical layperson drawn from the general public — and it is — such a

person is even less likely to understand the intricacies of the decisionmaker’s role

in the penalty phase of a capital trial. In contrast with the guilt phase, the

decisionmaker’s role at the capital penalty phase “is not merely to find facts, but

52

also—and most important—to render an individualized, normative determination

about the penalty appropriate for the particular defendant—i.e., whether he should

live or die.” (People v. Brown (1988) 46 Cal.3d 432, 448.) “ ‘[O]ne of the most

important functions any jury can perform in making . . . a selection (between life

imprisonment and death for a defendant convicted in a capital case) is to maintain

a link between contemporary community values and the penal system.’ ” (Gregg

v. Georgia (1976) 428 U.S. 153, 181.)

The federal Constitution imposes a “special ‘ “need for reliability in the

determination that death is the appropriate punishment.” ’ ” (Johnson v.

Mississippi (1988) 486 U.S. 578, 584.) The judicial duty to ensure a valid waiver

“is not to be discharged as a mere matter of rote, but with sound and advised

discretion, with an eye to avoid unreasonable or undue departures from that mode

of trial or from any of the essential elements thereof, and with a caution increasing

in degree as the offenses dealt with increase in gravity.” (Patton, supra, 281 U.S.

at pp. 312–313; accord, Martin, supra, 704 F.2d at pp. 272–273; see also U.S. v.

U.S. Dist. Court for E. Dist. of Cal. (9th Cir. 2006) 464 F.3d 1065, 1069 [U.S.

Supreme Court in Patton “emphasized the pivotal role of trial by jury in the

criminal context, particularly where the defendant is charged with a serious

crime”].) A societal interest in the integrity of the capital process may at times

outweigh a defendant’s stated preferences in controlling his or her own case. For

example, as discussed, ante, state law prevents any defendant from pleading guilty

to capital charges without consent of counsel, in light of “the state’s strong interest

in reducing the risk of mistaken judgments in capital cases and thereby

maintaining the accuracy and fairness of its criminal proceedings.” (Alfaro, supra,

41 Cal.4th at p. 1300.) In capital cases, the trial court must scrupulously discharge

its responsibility to protect the integrity of the judicial process and maintain

constitutional safeguards. We concur in the judgment of the court to find

53

Daniels’s penalty phase waiver invalid, and we agree Daniels’s death judgment

must be reversed.

E. Sentence of Death Imposed in Connection with Daniels’s Conviction

of Second Degree Murder

Count 21 charged Daniels with the murder of LaTanya McCoy and alleged

a multiple-murder special circumstance. (See § 190.2, subd. (a)(3).) The court

convicted Daniels of McCoy’s murder in the second degree and found true the

special circumstance. The court later sentenced Daniels to death on count 21, in

addition to imposing a death sentence on count 12, the first degree murder of

LeWayne Carolina committed while engaged in the commission of robbery and

burglary.

Daniels argues, and the People agree, that the death sentence imposed for

the second degree murder of LaTanya McCoy was legally unauthorized. The

death penalty may only be imposed where the defendant has been convicted of

first degree murder and the factfinder has found true any charged special

circumstance. (§§ 190.1, subd. (a), 190.3, 190.4, subd. (a).) We have held that the

offense of second degree murder is not punishable by death. (People v. Thomas

(2012) 53 Cal.4th 771, 837.) Instead, the penalty for second degree murder of a

person other than a police officer is 15 years to life. (§ 190, subd. (a).)

The court has already found that Daniels’s death judgment warrants

reversal on the basis of an invalid penalty phase waiver. Given that the sentence

imposed in connection with count 21 was unauthorized to begin with, we shall

resolve this claim by vacating that sentence and directing the trial court to issue an

amended abstract of judgment reflecting the appropriate sentence.

F. Cumulative Error

Daniels urges us to consider the cumulative effect of errors in his trial. A

majority of this court would hold that no error occurred affecting his guilt

54

convictions or the true findings of special circumstances. Hence, Daniels’s claim

of cumulative error fails.

55

III. CONCLUSION

We, the undersigned, agree that most of Daniels’s claims are unavailing.

But we cannot conclude from this record that the trial court’s acceptance of

Daniels’s jury waiver complied with the constitutional requirements that the

waiver must be knowing and intelligent. Because we find Daniels’s waiver of jury

trial was invalid in consideration of the totality of the circumstances, we would

reverse Daniels’s convictions with respect to all counts tried (counts 12–16 and

20–22), the true findings establishing the presence of special circumstances, and

his death sentence. Accordingly, we dissent from the court’s judgment today to

affirm the validity of Daniels’s jury trial waivers for the guilt phase and special-

circumstance determinations, and we concur in the reversal of Daniels’s death

judgment on the basis of an invalid penalty phase waiver.

In all other respects, we would affirm.

CUÉLLAR, J.

WE CONCUR:

WERDEGAR, J.

LIU, J.

56

CONCURRING OPINION BY LIU, J. TO THE LEAD OPINION,

CONCURRING AND DISSENTING IN THE JUDGMENT

OF THE COURT

I agree with today’s lead opinion that David Scott Daniels, a capital

defendant proceeding without counsel, did not make a knowing and intelligent

jury trial waiver. The fact that Daniels repeatedly and “most emphatically” said he

understood what he was doing (conc. & dis. opn. of Corrigan, J., post, at pp. 15–

16) is of limited significance because there is no indication in the record of what

he understood. Similarly, although Daniels’s “manifest desire was to plead guilty”

(conc. opn. of Kruger, J., post, at p. 2), it does not follow that his jury trial waiver

was knowing and intelligent. Justice Kruger speculates that “while an express

advisement about the fundamental attributes of jury trial might have made even

clearer to defendant the protection that a jury might afford, there is every

indication that he did not want that protection at his trial on the substantive

charges — and that additional advisements on that point, if anything, would have

simply reinforced his resolve to waive a jury trial.” (Id. at pp. 3–4.) But how can

we conclude that Daniels “did not want that protection” and would have persisted

in admitting guilt, when the record contains no indication that he understood what

“that protection” consists of? Finally, although it is true that Daniels had been

advised by counsel in different proceedings a decade earlier and that the trial court

here told Daniels that a jury consists of members of the community, these

circumstances do not show that his jury trial waiver in this case was knowing and

intelligent.

For the average reader (or writer) of judicial opinions, it is perhaps

elementary what a jury is and how it functions in a criminal trial. But we cannot

assume such knowledge among the general populace or even in “a literate high

school graduate.” (Conc. & dis. opn. of Corrigan, J., post, at p. 16.) Although

schoolchildren are “capable” of understanding the concept of a jury trial (People v.

Barrett (2012) 54 Cal.4th 1081, 1130 (conc. & dis. opn. of Liu, J.)), the state of

our citizenry’s actual knowledge of basic civics leaves much to be desired.

One recent study found that roughly one-third of Americans cannot name a

single branch of government. (Annenberg Public Policy Center, Americans’

Knowledge of the Branches of Government Is Declining (Sept. 13, 2016)

<http://www.annenbergpublicpolicycenter.org/americans-knowledge-of-the-

branches-of-government-is-declining/> [as of Aug. 31, 2017].) Another study

reported that 75% of Americans cannot explain what the judiciary does and that

one in three native-born citizens would fail the civics portion of the U.S.

naturalization test. (Greene, Study: One in Three Americans Fails Naturalization

Civics Test (Apr. 30, 2012) U.S. News & World Report <https://www.usnews.

com/news/blogs/washington-whispers/2012/04/30/study-one-in-three-americans-

fails-naturalization-civics-test> [as of Aug. 31, 2017] [reporting on Xavier

University study].) In California, half of high school seniors cannot state the

function of the United States Supreme Court; their understanding of the structures

and functions of government is “modest, at best.” (Kahne et al., Constitutional

Rights Foundation, The California Survey of Civic Education (2005) pp. 4, 8.) I

would not assume that despite these glaring gaps in civic literacy, the average

American nonetheless has a clear understanding of the right to a jury trial. (But

see conc. & dis. opn. of Corrigan, J., post, at p. 19, fn. 5.)

Judges have long recognized these shortcomings in the citizenry’s

knowledge of civics and the role of courts. Retired United States Supreme Court

2

Justice Sandra Day O’Connor has called attention to the “steady decline” of civics

education over the past generation (O’Connor & Hamilton, A democracy without

civics? (Sept. 18, 2008) The Christian Science Monitor, at p. 9), with particular

concern for students’ understanding of “the importance of an independent

judiciary” (Singer, Trailblazing Justice Now Has Games on Docket, N.Y. Times

(Mar. 28, 2016) p. B1). Justice O’Connor is not alone. (See Cantil-Sakauye &

Padilla, Engage, protect your democracy, The Sacramento Bee (Sept. 17, 2015)

p. 7B [noting that “more than 20 percent of Californians typically do not report for

jury service when summoned” and urging California schools to get civics

education “back on track” by “teach[ing] students how our government works,

how the three branches provide checks and balances, and how to participate in our

democracy”].)

There is an additional reason why courts cannot assume that laypeople

know the fundamental features of a jury trial: Those features vary from one

setting to the next. The unanimity requirement, for instance, has long been

considered an essential aspect of jury trials (3 Blackstone, Commentaries 375–

376), and under the California Constitution, criminal defendants are entitled to a

unanimous jury verdict (Cal. Const., art. I, § 16). But in civil cases, “three-fourths

of the jury may render a verdict.” (Ibid.) Moreover, although the Sixth

Amendment to the federal Constitution requires juror unanimity in federal

criminal cases, that federal constitutional requirement does not extend to state

courts. (See Apodaca v. Oregon (1972) 406 U.S. 404; McDonald v. City of

Chicago (2010) 561 U.S. 742, 766, fn. 14.) In fact, some states permit criminal

convictions with less-than-unanimous jury verdicts. (See Or. Const., art. I, § 11

[“[I]n the circuit court ten members of the jury may render a verdict of guilty or

not guilty, save and except a verdict of guilty of first degree murder, which shall

be found only by a unanimous verdict.”]; La. Const., art. I, § 17 [“A case in which

3

the punishment is necessarily confinement at hard labor shall be tried before a jury

of twelve persons, ten of whom must concur to render a verdict.”].)

The jury’s role in a capital case is particularly likely to be unfamiliar. The

defendant is unlikely ever to have experienced a capital trial (certainly this was

Daniels’s first), and the jury performs a unique function when considering whether

to render a death verdict. “Unlike its role at the guilt phase, the jury’s role in a

capital penalty trial ‘is not merely to find facts, but also — and most important —

to render an individualized, normative determination about the penalty appropriate

for the particular defendant — i.e., whether he should live or die.’ [Citations.]

This inherently ‘ “moral endeavor” ’ [citation], which is designed ‘ “to maintain a

link between contemporary community values and the penal system” ’ [citation],

renders a defendant’s decision to waive a jury trial at the penalty phase

particularly consequential.” (People v. Sivongxxay (2017) 3 Cal.5th 151, 212

(conc. & dis. opn. of Liu, J.).) The jury’s normative function as sentencer in a

capital trial is unusual and especially unlikely to be a matter of common

understanding. The record before us provides no indication that Daniels waived a

jury trial “ ‘ “ ‘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).)

Instead of quoting this language in Collins as the standard by which we

assess whether a jury trial waiver is knowing and intelligent, Justice Corrigan cites

Adams v. U.S. ex rel. McCann (1942) 317 U.S. 269 and U.S. ex rel. Williams v.

DeRobertis (7th Cir. 1983) 715 F.2d 1174, and asserts that it is enough if the

defendant understands “ ‘that the choice confronting him was, on the one hand, to

be judged by a group of people from the community, and on the other hand, to

have his guilt or innocence determined by a judge.’ ” (Conc. & dis. opn. of

Corrigan, J., post, at p. 15.) But Collins is the controlling authority here, and I do

4

not agree that simply knowing a jury is comprised of people from the community

amounts to a “ ‘ “ ‘full awareness’ ” ’ ” of the nature of the jury trial right.

(Collins, supra, 26 Cal.4th at p. 305.) It is true that Collins “invalidated the

defendant’s jury trial waiver for lack of voluntariness.” (Conc. & dis. opn. of

Corrigan, J., post, at p. 15, fn. 3.) But we have repeatedly applied Collins to assess

whether a jury trial waiver was knowing and intelligent. (See People v.

Sivongxxay (2017) 3 Cal.5th 151, 166, 171 (Sivongxxay); People v. Weaver (2012)

53 Cal.4th 1056, 1071–1072.)

Finally, Justice Corrigan contends that the validity of Daniels’s jury trial

waiver follows from our recent decision in Sivongxxay. (Conc. & dis. opn. of

Corrigan, J., post, at pp. 14, 18, 22.) But the defendant in Sivongxxay proceeded

with the assistance of counsel, whereas Daniels did not. Our opinion in

Sivongxxay repeatedly emphasized the importance of this fact. (See Sivongxxay,

supra, 3 Cal.5th at p. 167 [“Although defendant is a Laotian refugee with no

formal education and limited English proficiency, he was represented by

counsel.”]; id. at p. 173, fn. 7 [“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

[citation], his comprehensive waiver is properly understood as subsuming that

right.”]; id. at p. 174, fn. 8 [“[H]ere the relevant circumstances include not only

the colloquy, but also . . . the fact that defendant was represented by counsel.”]; id.

at p. 174 [Sivongxxay stated his desire to waive jury trial “through counsel”]; id.

at p. 188 [“Defendant personally entered what we have determined to be a

knowing and intelligent jury trial waiver, and did so with the assistance of

counsel.”]; id. at p. 189 [“Even 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 . . . represented by counsel in connection with the jury

5

waiver.”].) Daniels does not argue that unrepresented defendants are categorically

barred from waiving their right to a jury trial. His contention is that the absence of

counsel is a significant factor in assessing whether a jury trial waiver is knowing

and intelligent.

In sum, the record here shows that Daniels was intent on waiving a jury

trial. But it does not show that he made the decision, as to the guilt phase or the

penalty phase, “ ‘ “ ‘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.)

LIU, J.

I CONCUR:

CUÉLLAR, J.

6

CONCURRING AND DISSENTING OPINION BY CORRIGAN, J. TO THE

LEAD OPINION, CONCURRING AND DISSENTING IN THE

JUDGMENT OF THE COURT

I concur in the court’s judgment affirming all guilty verdicts and all true

findings against defendant David Scott Daniels. I also concur in the court’s

judgment insofar as it vacates the unauthorized sentence of death in connection

with count 21 and directs the superior court to amend the abstract of judgment to

reflect a sentence of 15 years to life on that count. I join in Justice Cuéllar’s lead

opinion setting forth the statement of facts (part I) and its resolution of all issues

except part II.D.

I respectfully dissent from the court’s reversal of the death judgment for the

murder of LeWayne Carolina (count 12). I would conclude that Daniels

knowingly and intelligently waived his right to a jury trial in favor of a bench trial

for both the guilt and the penalty phases.

“The Sixth Amendment teaches that we should accord the competent

defendant, even in a capital case, . . . control over his destiny” by allowing him to

forgo representation by counsel and the presentation of a defense. (People v.

Stansbury (1993) 4 Cal.4th 1017, 1063 (Stansbury), reversed on another ground in

Stansbury v. California (1994) 511 U.S. 318, 326–327; accord, People v. Bloom

(1989) 48 Cal.3d 1194, 1228 (Bloom).) Facing two counts of murder with special

circumstances and numerous other serious felony counts, Daniels expressed a

desire to plead guilty to all charges. When his counsel refused to agree, Daniels

moved to represent himself. The motion was granted, and Daniels pleaded guilty

to vehicle theft, carjacking, and 11 counts of robbery. Informed that he could not

plead guilty to the murders, which carried a possible verdict of death, or to other

related counts, Daniels waived his right to a jury trial in favor of a bench trial for

both the guilt and penalty phases. He repeatedly declined the assistance of a

defense investigator or advisory counsel. He presented no evidence, cross-

examined no witnesses, and made no argument on his behalf. The trial court

convicted him of all remaining counts and entered a judgment of death.

The record demonstrates that Daniels personally and expressly waived the

right to jury trial on the issues of guilt, special circumstances, and penalty.

Daniels now contends, however, that the record does not demonstrate his waiver

was knowing and intelligent. He faults the trial court for failing to advise him that

a jury consists of 12 members, that the jurors must be impartial, and that they must

unanimously agree in order to reach a verdict. He also assigns as error the trial

court’s failure to advise him about the consequences of non-unanimity. He claims

that his penalty phase waiver was invalid “for the same reasons that his earlier

waiver of a jury at the guilt phase was invalid” and for the additional reason that

he was not told his waiver of a jury trial would result in the “loss of the right to an

independent trial court review of the penalty imposed by a jury.” Daniels asserts

that he received no advisements from counsel before discharge regarding the jury

trial right.

Daniels’s arguments are unpersuasive. As recently as two months ago, we

reaffirmed that that there is no “rigid formula or particular form of words that a

trial court must use in taking a jury waiver.” (People v. Sivongxxay (2017) 3

Cal.5th 151, 169 (Sivongxxay).) We rejected a rule “that a jury waiver colloquy

invariably must discuss juror impartiality, the unanimity requirement, or both for

an ensuing waiver to be knowing and intelligent.” (Id. at p. 168.) Here, Daniels

2

personally entered an express waiver of his right to jury trial three separate times:

twice before trial began and a third time before the start of the penalty phase.

During the colloquy, the trial court informed Daniels that he had a right to be tried

by a jury made up of members of the community and that, if he waived jury trial,

the court alone would determine the issues of guilt, special circumstances, and

penalty. Daniels stated no fewer than 15 times that he understood the jury trial

right he was giving up. He unwaveringly assured the court that he understood the

nature of the proceedings and the decisions he had made. He specifically

expressed his confidence that he would receive a fair trial before the judge who

would hear his case. He was no stranger to criminal proceedings. Approximately

a decade before, when represented by counsel, he had thrice pleaded guilty after

being informed that he was entitled to a unanimous verdict of 12 jurors on the

question of guilt. The totality of these circumstances demonstrates a knowing and

intelligent waiver of the jury trial right.

I. BACKGROUND

Because the outcome of this case turns heavily on the colloquies between

Daniels and the court, they are set forth in detail here. On August 7, 2000, before

the preliminary hearing, Daniels informed the court that he “wish[ed] to plead

guilty.” When his counsel interjected, “He doesn’t mean that,” Daniels retorted, “I

know exactly what I’m saying. We discussed this already.” Counsel told the

court that she had advised Daniels to enter not guilty pleas so that the case could

proceed to preliminary hearing. Daniels responded, “I understand exactly what

she is saying. What I am saying [is] I am prepared to enter a plea of guilty.” The

court replied that Daniels could not enter a guilty plea without his counsel’s

consent. Defense counsel proposed a sentence of life without the possibility of

parole in exchange for defendant’s guilty plea, but the prosecutor refused. The

3

court then entered pleas of not guilty. Following a preliminary hearing, Daniels

was held to answer on 22 of 24 charges.

On December 7, 2000, after Daniels was arraigned on the information, he

filed a letter requesting that he be allowed to represent himself and to plead guilty

to the charges. In the letter, he stated, “I fully understand that I am charged with

the Capitol [sic] offense of Murder penal code section 187 with the special

circumstances.” Daniels also filed a written motion in support of his request. On

December 20, the court questioned Daniels about his choice to waive counsel. It

advised him that he was facing the death penalty and that, even if he chose self-

representation, he could not plead guilty to the capital charges. Daniels said he

understood. The court admonished Daniels about his right to be represented by

counsel and the risks of self-representation. Daniels affirmed that he understood

each of the court’s admonishments and that he wanted to exercise his “Faretta”

right. Daniels executed a written waiver, and the court granted his request to

proceed pro se. When asked if he wanted the assistance of advisory counsel,

Daniels declined. The court asked, “Are you sure of that?” and Daniels

responded, “Positive.”

Two weeks later, on January 5, 2001, Daniels appeared before a different

judge for trial. Again, the court extensively discussed Daniels’s desire to represent

himself. After reviewing the charges, the court emphasized that they were “very,

very serious” and that the special circumstance allegations exposed him to the

death penalty. Daniels said that he understood. The court warned that the

prosecutor was an expert in capital litigation, it is unwise to elect self-

representation, and Daniels would be at a “severe disadvantage.” The court

likened it to “a flag football team going up against the Tennessee Titans.” Daniels

stated that he understood and that “I don’t look at it as a disadvantage.” The court

emphasized that Daniels would have to conduct himself in a lawyerly fashion and

4

that he would receive no special assistance from the court. It also stated that

Daniels would forgo an ineffective assistance of counsel claim on appeal. Daniels

indicated that he understood everything the court had explained. The court asked

Daniels if he was “thinking clearly.” Daniels replied, “Yes, I am” and affirmed

that he knew what he was doing. Daniels said that he was 33 years old, had

graduated from Galileo High School in San Francisco, and was literate. He had

previously worked as a mailroom clerk which required him to read and understand

documents. He did not suffer from mental illness and was not under the influence

of any substance that would impair his judgment. He made his request freely and

voluntarily, without any threats or pressure. The court then asked Daniels if he

was “satisfied that you know what you are doing?” to which he replied, “Yeah.”

Daniels declined the assistance of advisory counsel. The court took a 15-minute

recess to allow Daniels to think about his decision. When proceedings resumed,

the court asked Daniels if he felt capable of presenting a defense on his own

behalf, to which he replied, “Yes, I do.” The court then found that Daniels had

made a knowing, intelligent, and voluntary waiver of his right to counsel and

confirmed his pro se status. Daniels again executed a written waiver of his right to

counsel.

The court then asked Daniels if he wished to proceed “by way of jury trial

or by way of court trial.” Daniels replied, “Court trial.” The following colloquy

ensued:

“THE COURT: Are you satisfied that that’s what you want to do?

“MR. DANIELS: Yes.

“THE COURT: Do you understand that you have an absolute right to

proceed by way of jury trial both in the guilt phase and at [the] penalty phase, if

there is a penalty phase, if you want to do that? Do you understand me?

“MR. DANIELS: Yes.

5

“THE COURT: What you are telling me then is that you wish to waive

your right to a jury trial in the guilt phase and in the penalty phase which basically

means if there is [sic] two phases, you will not have a jury determine your fate, but

rather the Court will make certain findings based upon what you have been

charged with? Do you understand that?

“MR. DANIELS: I understand.

“THE COURT: And more specifically in the posture that we are presently

in, that I will be the Judge that will make those determinations. Do you

understand that?

“MR. DANIELS: I understand.

“THE COURT: Do you understand that if you go by way of the court trial

rather than jury trial, I will decide whether the prosecution has proven its case

beyond a reasonable doubt in the guilt phase of the trial, it will be my job to

determine whether you are guilty or not guilty of the charges and allegations made

against you? Do you understand that?

“MR. DANIELS: I understand.

“THE COURT: Do you understand that I will determine whether the

special circumstances are true or not true? Do you understand that?

“MR. DANIELS: Yes.

“THE COURT: Do you understand if I find you guilty of murder, of

special circumstances, in the guilt phase of the trial, I will also determine whether

the punishment is life without the possibility of parole or the death penalty in the

penalty phase of the trial? You understand that?

“MR. DANIELS: Yes, I understand.

“THE COURT: Have you understood everything that I have told you

relative to your right to proceed by way of jury trial or by way of court trial?

“MR. DANIELS: Yes.

6

“[THE PROSECUTOR]: If I could just interject one thing. You did touch

on it, but he would also have the right to have the jury determine the truth or not

truth of the special circumstances. I think you did mention that.

“THE COURT: Yes. If you waived jury, then the jury will not determine

the truth and validity of the special circumstances, that will be my job to determine

whether they are true or not true. Do you understand that?

“MR. DANIELS: I understand.”

Daniels confirmed that he was waiving his right to jury trial of his own free

will, he had not received any threats or promises, and he was not under the

influence of any substance that would cloud his judgment. The court then asked,

“Do you know what you are doing?” to which Daniels replied, “Yes.” After

obtaining a waiver from the People, the court again asked Daniels, “Do you know

what you have just done, sir?” to which Daniels again replied, “Yes.” The court

found a knowing, intelligent, and voluntary waiver of the right to jury trial.

Daniels declined the services of a defense investigator. He then stated his

desire to plead guilty to the noncapital counts and to enter pleas admitting the truth

and validity of two prior convictions. The court obtained oral waivers of Daniels’s

constitutional rights, including the right to jury trial:

“THE COURT: Although I reference jury trial, you have a right not only to

— these charges, you have a right to a jury trial and a court trial, but my

understanding is you don’t want either one of those, you wish to plead guilty and

to admit, right?

“MR. DANIELS: Yes.

“THE COURT: So when I reference just jury trial, is the understanding

between the People and you, Mr. Daniels, that although I just say jury trial, that it

also pertains to court trial rights? Do you understand that?

“MR. DANIELS: Yes.

7

“THE COURT: Now, is there anything at all that I have done or said so far

that you do not understand?

“MR. DANIELS: No.

“THE COURT: All right. You have the right to a jury trial. Do you

understand that?

“MR. DANIELS: Yes.

“THE COURT: Do you realize that by pleading guilty or admitting the

truth and validity of the prior felony convictions alleged against you[,] you will

give up your right to a jury trial as to these matters?

“MR. DANIELS: Yes.

“THE COURT: And do you give your right up to a jury trial as it pertains

to these matters?

“MR. DANIELS: I do.”

On January 16, 2001, court trial began on the remaining charges. Before

the prosecutor’s opening statement, the court revisited Daniels’s waivers of the

right to counsel and jury trial. The court offered to appoint counsel “even at this

late date,” but Daniels declined. The court offered Daniels the services of an

investigator and advisory counsel; again Daniels declined. The court then noted,

“We also talked about your right to a jury trial with members of these communities

that would determine whether or not — the question of guilt or innocence.”

(Italics added.) Daniels responded that he remembered discussing this with the

court. The following colloquy transpired:

“THE COURT: And you would have a right to a jury trial, certainly in

terms of the guilt phase, and if we get beyond the guilt phase, you would have that

same right if you wish to have that right as it pertains to the question of penalty.

[¶] Do you understand what I am telling you at this stage?

“[MR. DANIELS]: Yes, Your Honor.

8

“THE COURT: And despite that, it is still your request and still your view

that you wish to waive any jury in this matter and proceed by way of court trial, is

that true?

“[MR. DANIELS]: Yes, I do, Your Honor.

“THE COURT: Do you understand fully that what this means is that I will

try the question of your guilt or your innocence. [¶] Do you understand that?

“[MR. DANIELS]: I understand, Your Honor.

“THE COURT: And if, in fact, we go to a penalty phase, that I will, in fact,

try the question about whether or not aggravating factors outweigh those

mitigating factors. [¶] Do you understand — do you understand that?

“[MR. DANIELS]: I do.

“THE COURT: And despite me telling you all of this, you still wish to

proceed in the legal posture that you are presently in?

“[MR. DANIELS]: Yes, Your Honor. I do.”

During the guilt phase, Daniels presented no evidence or argument and

engaged in no cross-examination. The trial court convicted him on all counts and

found true all special allegations and enhancements.

On January 19, before the penalty phase trial began, the prosecutor

informed the court that he had spoken to Daniels and had “advised him that . . . he

does have the right to present mitigating evidence in his own defense if he

wishes.” The prosecutor reported that he had offered Daniels the services of an

investigator to help him present a case in mitigation, but Daniels had declined.

The court told Daniels he faced “the gravest consequences in the criminal law in

terms of punishment.” The court explained that, at this phase of the trial, “the

District Attorney is going to present what is called aggravating factors” and that

Daniels would “have the right to present what is known as mitigating evidence

that the [court] . . . would consider relative to aggravating factors versus mitigating

9

factors.” Based on this evidence, the court would “consider whether or not you

should be imprisoned for the rest of your life without the possibility of parole, or

whether you shall suffer death.” The court offered to “stop these legal

proceedings, appoint a lawyer, appoint advisory counsel, appoint an investigator

for you, and give them ample time to prepare before we enter this penalty phase.”

Daniels declined, stating, “Your Honor, I respect and thank you for being

concerned, that you are the Judge James L. Long, and I trust and have faith in you,

whatever your decision is.” The court replied, “Do you realize, although you have

waived your right to a jury trial, that I would empanel a jury to try these questions

in the penalty phase, you have that right, but heretofore you have waived that

right, and said you wanted a court trial. [¶] Do you still feel that way?” Daniels

responded, “I do.” The court then observed: “Now, Mr. Daniels, I have watched

you in terms of your demeanor, your manner, physical movement, your verbal

statements, looking for any indication that you are not competent within the

meaning of California law. [¶] I have watched you carefully. I have asked you

earlier do you understand the nature of these proceedings?” Daniels replied that

he did, and stated that he was capable of presenting a penalty phase defense.

Daniels in fact presented no defense or argument. He apologized to the

victims’ families.

In a statement to the probation officer after trial, Daniels explained that “he

chose not to fight the case, choosing to plead guilty to the majority of the charges,

to put this matter behind him and to bring some closure to this case. He felt it

would be unfair to the victims and their surviving family members for him to

attempt to fight these charges, knowing he was guilty of each of the crimes.”

II. DISCUSSION

The Sixth Amendment guarantees a criminal defendant “the right to a

speedy and public trial, by an impartial jury . . . .” (U.S. Const., 6th Amend.)

10

Article I, section 16 of the California Constitution guarantees to a defendant

accused of a felony a jury of 12 persons and a unanimous verdict. (See also

People v. Collins (1976) 17 Cal.3d 687, 693.)

A criminal defendant may waive the right to a jury trial in favor of a bench

trial. (Patton v. United States (1930) 281 U.S. 276, 299, 312; Cal. Const., art. I,

§ 16.) The question of an effective waiver of a federal constitutional right is

governed by federal standards. (People v. Howard (1992) 1 Cal.4th 1132, 1175

(Howard).) “[T]he 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.) Additionally, the California

Constitution requires that a criminal jury trial waiver be “by the consent of both

parties expressed in open court by the defendant and the defendant’s counsel.”

(Cal. Const., art. I, § 16.)

A proper advisement and waiver of the jury trial right on the record

generally establishes a defendant’s voluntary and intelligent admission. (People v.

Mosby (2004) 33 Cal.4th 353, 356 (Mosby).) Our inquiry is not limited to the

waiver colloquy, however. The test of a valid waiver ultimately turns, not on

whether specific warnings or advisements were given, but whether “the record

affirmatively shows that [the waiver] is voluntary and intelligent under the totality

of the circumstances.” (Howard, supra, 1 Cal.4th at p. 1175 [guilty plea waiver];

accord, Sivongxxay, supra, 3 Cal.5th at p. 166 [waiver of jury trial]; People v.

Lawley (2002) 27 Cal.4th 102, 140 (Lawley) [waiver of counsel].) We

independently examine the entire record to determine whether this standard has

been met. (People v. Burgener (2009) 46 Cal.4th 231, 241 (Burgener); People v.

Doolin (2009) 45 Cal.4th 390, 453.)

11

Daniels contends that his jury trial waiver was invalid because the court did

not advise him that a jury is made up of 12 members who must be impartial and

must unanimously agree on a verdict; nor did it explain the consequences of a

hung jury. His arguments are contrary to settled precedent.

We have consistently eschewed any rigid formula or particular form of

words that a trial court must use to ensure that a jury trial waiver is knowing and

intelligent. (Sivongxxay, supra, 3 Cal.5th at pp. 169–170; see Lawley, supra, 27

Cal.4th at p. 140 [discussing waiver of the right to counsel]; see also Iowa v. Tovar

(2004) 541 U.S. 77, 88 [same].) The court need not employ legalese or

“ ‘talismanic phrase[s].’ ” (Howard, supra, 1 Cal.4th at p. 1180.) Instead, like the

United States Supreme Court, we take a “ ‘pragmatic approach to the waiver

question’ ” that considers what would be “ ‘obvious to an accused’ ” who is

executing the waiver. (Tovar, at p. 90, cited with approval in Burgener, supra, 46

Cal.4th at p. 242). “The information a defendant must possess in order to make an

intelligent election . . . will depend on a range of case-specific factors, including

the defendant’s education or sophistication, the complex or easily grasped nature

of the charge, and the stage of the proceeding.” (Tovar, at p. 88.) “The standard

was and remains whether the [waiver] represents a voluntary and intelligent choice

among the alternative courses of action open to the defendant.” (North Carolina

v. Alford (1970) 400 U.S. 25, 31 [discussing guilty plea waiver].)

Daniels was advised that he had a right to be tried by a jury drawn from

members of the community, and that if he waived jury trial, the court alone would

determine the issues of guilt, special circumstances, and penalty.1 This is the

1 In one of the several pretrial colloquies, the court explicitly referred to the

“right to a jury trial with members of these communities that would determine . . .

the question of guilt or innocence” and “that same right . . . as it pertains to the

(footnote continued on next page)

12

essence of the jury trial right. “The purpose of the jury trial . . . is to prevent

oppression by the Government. ‘Providing an accused with the right to be tried by

a jury of his peers gave him an inestimable safeguard against the corrupt or

overzealous prosecutor and against the compliant, biased, or eccentric judge.’

[Citation.] Given this purpose, the essential feature of a jury obviously lies in the

interposition between the accused and his accuser of the commonsense judgment

of a group of laymen, and in the community participation and shared responsibility

that results from that group’s determination of guilt or innocence.” (Williams v.

Florida (1970) 399 U.S. 78, 100, quoting Duncan v. Louisiana (1968) 391 U.S.

145, 156.) Conversely, the primary consequence of waiving the right to a jury

trial is that the defendant “no longer has the buffer of the judgment of his fellow

citizens between him and the imposition of punishment by the state, but instead his

fate is in the hands of a state official.” (U.S. ex rel. Williams v. DeRobertis (7th

Cir. 1983) 715 F.2d 1174, 1178 (DeRobertis).) Here, repeated admonitions

consistently stressed that court and jury trials were different. Daniels was told

again and again that, if he waived his right to a jury, the court alone would decide

(footnote continued from previous page)

question of penalty.” (Italics added.) After being so advised, Daniels again

waived his right to a jury trial.

My colleagues in the plurality downplay the court’s reference to members

of the community, noting that the trial court stated it had previously discussed the

point with Daniels when in fact it had not. My colleagues infer that Daniels’s

agreement with the court suggests he did not fully comprehend the previous

admonitions. (Conc. & dis. opn. of Cuéllar, J., ante, at pp. 37‒38.) This

interpretation strains credulity. Daniels’s failure to challenge the court’s

representation of the previous discussion instead tends to demonstrate his basic

understanding from the outset that jurors are drawn from the community. He

certainly did not express confusion or surprise.

13

whether the charges and special allegations had been proven and, if so, what

sentence Daniels would receive.

The court was not constitutionally required to go further and enumerate

specifics, such as that a jury is made up of 12 members of the community, that the

jury members must be impartial, and that their verdict must be unanimous. The

high 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 . . . .’ ” (Sivongxxay, supra, 3 Cal.5th at p. 168,

quoting State v. Rizzo (Conn. 2011) 31 A.3d 1094, 1116.) Recently, we observed

in Sivongxxay that this court has “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.” (Sivongxxay, at p. 168.) While

it may be better practice for the trial court to advise the defendant of basic jury

trial mechanics,2 Sivongxxay emphasized that “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.” (Sivongxxay, at p. 170.) We

have never imposed a higher standard for a knowing and intelligent waiver under

the state Constitution than that established by the United States Supreme Court.

(See Sivongxxay, at p. 166; People v. Collins (2001) 26 Cal.4th 297, 304–305.)

There is no requirement that a colloquy be complicated in order to be

constitutional. Indeed, “[t]he concept of judgment by one’s peers is probably

2 Sivongxxay identified the following basic mechanics: “(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.” (Sivongxxay, supra, 3 Cal.5th at

p. 169.)

14

implicit, for most persons, in the term ‘jury trial’ itself.” (DeRobertis, supra, 715

F.2d at p. 1180, fn. 2.) In DeRobertis, the Seventh Circuit upheld a jury trial

waiver as knowing and intelligent where the defendant “understood that the choice

confronting him was, on the one hand, to be judged by a group of people from the

community, and on the other hand, to have his guilt or innocence determined by a

judge.” (Id. at p. 1180.) Daniels, too, was told these basic facts on three separate

occasions during the trial, and said that he understood them no fewer than 15

times. At one point Daniels declared, “Your Honor, I respect and thank you for

being concerned, that you are the Judge James L. Long, and I trust and have faith

in you, whatever your decision is.” This record amply demonstrates that Daniels

understood the choice he was making: whether “he trusts the judgment of his

fellow citizens with his fate, or if he would rather entrust it to the judgment of a

solitary state judicial officer.” (DeRobertis, at p. 1180.)3 There is absolutely “no

3 Justice Liu characterizes DeRobertis as out of step with our precedent.

(Conc. & dis. opn. of Liu, J., ante, at pp. 4–5.) Not so. We recently cited that case

with approval for the proposition that a jury waiver may be knowing and

intelligent notwithstanding the lack of specific advisements about the contours of

the right. (Sivongxxay, supra, 3 Cal.5th at p. 168.) By contrast, the case Justice

Liu relies on, People v. Collins, supra, 26 Cal.4th 297, invalidated the defendant’s

jury trial waiver for lack of voluntariness. (Id. at pp. 306–309; see conc. & dis.

opn. of Liu, J., ante, at pp. 4–5.) Collins had no occasion to address what

circumstances demonstrate a knowing and intelligent jury trial waiver, nor did it

purport to do so.

My colleagues in the plurality attempt to distinguish DeRobertis on the

ground that the defendant in that case was represented by counsel while Daniels

was not. I discuss this fact in further detail below. Here, I note that my colleagues

suggest DeRobertis “reinforces an important principle: Courts generally rely on

counsel to transmit to defendants critical information about whether to waive the

jury trial right and the consequences of waiving it . . . .” (Conc. & dis. opn. of

Cuéllar, J., ante, at p. 44.) Notably, however, the Seventh Circuit accepted the

defendant’s representation, supported by affidavit, that counsel had not informed

him of his right to participate in jury selection and his right to be convicted only

(footnote continued on next page)

15

confusion on defendant’s part” regarding his waiver. (Lawley, supra, 27 Cal.4th at

p. 142.) Tellingly, Daniels does not challenge the verdicts based on his pleas of

guilty, which also encompassed a waiver of the right to trial by jury. (See Boykin

v. Alabama (1969) 395 U.S. 238, 243.)

My colleagues in the plurality dismiss Daniels’s repeated affirmations that

he understood his right to a jury trial and the consequences of forgoing it with the

observation that “ ‘You don’t know what you don’t know.’ ” (Conc. & dis. opn.

of Cuéllar, J., ante, at p. 39.) But a review of the entire record casts no doubt on

Daniels’s understanding. He was a literate high school graduate who had been

gainfully employed. He showed some legal sophistication by filing a written

motion to represent himself and referring to his “Faretta” right. He spoke most

emphatically about his ability to comprehend the proceedings. When his counsel

questioned his desire to plead guilty, he retorted, “I know exactly what I’m saying.

We discussed this already.” He assured the court that he “fully underst[ood]” the

charges against him. He told the court he was “positive” that he did not need the

assistance of advisory counsel. He emphasized his confidence that the court

would give him a fair trial. He had repeated opportunities to ask questions or

express reservations. He did neither. At one point, the court observed that it had

(footnote continued from previous page)

upon a substantial majority vote of the jurors. (DeRobertis, supra, 715 F.2d at pp.

1177, 1181.) It held that “counsel does not have to inform a client of all of the

legal and procedural knowledge which forms the basis of his professional advice.”

(Id. at p. 1182, italics added.) Instead, what the DeRobertis court found significant

was that counsel had advised his client to waive a jury trial, and that the defendant

had followed that advice. (Id. at pp. 1180, 1182–1183.) While Daniels did not

have counsel’s advice, he was aware of the core aspects of his choice. It is also

worth noting that counsel’s absence resulted from Daniels’s affirmative choice to

represent himself as he was constitutionally entitled to do. (Faretta v. California

(1975) 422 U.S. 806, 819 (Faretta).)

16

carefully watched Daniels’s “demeanor, [his] manner, physical movement, [his]

verbal statements, looking for any indication that [he was] not competent within

the meaning of California law,” and noted none. In the words of the high court,

“if the record before us does not show an intelligent and competent waiver . . . by

a defendant who demanded again and again that the judge try him, and who in his

persistence of such a choice knew what he was about, it would be difficult to

conceive of a set of circumstances in which there was such a free choice by a self-

determining individual.” (Adams v. U.S. ex rel. McCann (1942) 317 U.S. 269, 281

(Adams).)

Additionally, Supreme Court precedent teaches that a knowing and

intelligent waiver of the jury trial right can depend as much on tactics as on the

contours of the right. In Adams, supra, 317 U.S. 269, a case involving a self-

represented defendant, the court observed that “[t]he les

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