People v. Collins

BROWN, J., Concurring.

I agree with the majority that defendant’s waiver of his right to a jury trial cannot be deemed knowing and intelligent in light of the trial court’s offer of some unspecified benefit in exchange for that waiver. I would, however, expressly evaluate the validity of that waiver under the well-established totality of the circumstances test.

Here, unlike the situation in People v. Ernst (1994) 8 Cal.4th 441, 443 [ 34 Cal.Rptr.2d 238 , 881 P.2d 298 ], in which there was no express jury trial waiver, we have an express waiver, and the only question is its validity. The offer of an undefined benefit was an error in the admonitions preceding the jury trial waiver that was not cured by other statements during the proceeding (an examination of the totality of the circumstances). It is difficult to imagine how else we would determine the waiver’s validity other than by examining the circumstances under which it was made. Indeed, the majority alludes to such an approach in parts of its analysis. (See, e.g., maj. opn., ante, at p. 301 [“[w]e set forth in some detail the trial court’s communication with defendant on the subject of his waiver of a jury trial, in order to provide an adequate factual context”]; id. at p. 305, fn. 2 [jury trial right “may be waived only if there is evidence in the record that the decision to do so was *314 knowing, intelligent, and voluntary”].) Moreover, this is the standard the parties and both the majority and the dissent in the Court of Appeal agree should apply in the context of jury trial waivers, and it is the standard for the waiver of numerous, if not all, constitutional rights. (People v. Castaneda (1975) 52 Cal.App.3d 334, 343-345 [ 125 Cal.Rptr. 9 ] [evaluating circumstances of jury trial waiver to determine its validity]; see, e.g., Edwards v. Arizona (1981) 451 U.S. 477, 482 [ 101 S.Ct. 1880, 1883-1884 , 68 L.Ed.2d 378 ] [validity of waiver of right to counsel depends in each case on the particular facts and circumstances surrounding that case]; Fare v. Michael C. (1979) 442 U.S. 707, 724-725 [ 99 S.Ct. 2560, 2571-2572 , 61 L.Ed.2d 197 ] [self-incrimination and counsel waiver by minor examined under the totality of the circumstances]; People v. Panizzon (1996) 13 Cal.4th 68, 84 [ 51 Cal.Rptr.2d 851 , 913 P.2d 1061 ] [examining surrounding circumstances to determine whether defendant’s waiver of the right to appeal a bargained sentence was knowing, intelligent, and voluntary]; People v. Howard (1992) 1 Cal.4th 1132, 1175 [ 5 Cal.Rptr.2d 268 , 824 P.2d 1315 ] [guilty plea valid if record affirmatively shows it is voluntary and intelligent under the totality of the circumstances].)

Suppose, for example, the court below had offered defendant the unspecified benefit in this case, but then following a sidebar with counsel, had apologized, retracted the promise of any benefit, and extensively voir dired the defendant to ensure he was under no illusion that any benefit would be gained by waiving a jury. While the court initially erred, under the totality of the circumstances we would not conclude the subsequent jury trial waiver was invalid because the defendant clearly understood no benefit was being offered in exchange for his waiver. This result has much to commend it.

Of course, once we determine the jury trial waiver was not valid under the totality of circumstances, then the question becomes the effect of the absence of a valid waiver. I agree the trial court was not authorized to proceed in the absence of a valid waiver, and hence we must reverse.

Furthermore, instead of simply noting that the undefined benefit here could not possibly result in a knowing or intelligent waiver, the majority broadly endorses the principle that no leniency may ever be accorded a defendant because of a jury trial waiver. (Maj. opn., ante, at pp. 306-307 [“state is prohibited by the federal Constitution from . . . rewarding a defendant for forbearing from the exercise of’ a constitutional right]; id. at p. 307 [citing People v. Colds (1981) 125 Cal.App.3d 860 [ 178 Cal.Rptr. 430 ], with approval for the proposition that “trial court’s imposition of mitigated sentence, based solely upon circumstance that the defendant had waived his right to jury trial, was unauthorized and illegal”]; maj. opn., ante, at p. 307 *315 [“The impropriety of a trial court’s explicit promise of more lenient treatment in sentencing if the defendant waives trial by jury is comparable to the impropriety of harsher treatment imposed because of the defendant’s having invoked his or her right to trial by jury”].) While the majority relies on United States v. Jackson (1968) 390 U.S. 570 [ 88 S.Ct. 1209 , 20 L.Ed.2d 138 ] (maj. opn., ante, at p. 306), the high court has more recently stated, “The cases in this Court since Jackson have clearly established that not every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is invalid.” (Corbitt v. New Jersey (1978) 439 U.S. 212, 218 [ 99 S.Ct. 492, 497 , 58 L.Ed.2d 466 ], fn. omitted.)

Rather, it seems sufficient to conclude here that the trial court’s offer of some unspecified benefit would necessarily render the waiver not knowing or intelligent. This court’s statements in In re Lewallen (1979) 23 Cal.3d 274, 278-279 [ 152 Cal.Rptr. 528 , 590 P.2d 383 , 100 A.L.R.3d 823 ], recounted by the majority regarding rewarding a defendant for forbearing from the exercise of a constitutional right, are dicta. (Maj. opn., ante, at pp. 306-307.) That is because in Lewallen , we concluded the trial court punished the defendant for exercising his right to trial and refusing to accept a plea negotiation. (Lewallen, at pp. 276-277, 280.)

Conceivably, there may be situations in which we would not find that the benefit noted rendered the waiver invalid. For example, if a defendant asked the court what benefit there would be in a court trial over a jury trial, and the court stated, “Well, court trials tend to proceed more quickly than jury trials,” it is unlikely we would conclude the trial court’s statement rendered the subsequent jury trial waiver not knowing, intelligent, or voluntary, particularly if the defendant rejoined that he in fact wanted the trial over as quickly as possible. In addition, here defense counsel suggested at sentencing that defendant’s waiver had benefited the minor victim by reducing her “exposure to presentation of traumatic events.” It would seem the trial court could properly consider such a circumstance in reducing defendant’s sentence. However, had defendant mentioned this to the court as a reason for his jury trial waiver prior to entering that waiver, and the trial court noted it would consider such a gesture at any sentencing hearing, would that render the waiver invalid? Not knowing the answer to these questions, it seems best to avoid foreclosing our options in future cases.