People v. Williams CA2/2 ( 2021 )

Filed 10/6/21 P. v. Williams CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B304540
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA075866)
v.
ANTHONY WILLIAMS, JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Charles A. Chung, Judge. Affirmed.
Adrian Dresel-Velasquez, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Blythe J. Leszkay and Nicholas J. Webster,
Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Anthony Williams, Jr.
(defendant), appeals from his conviction of second degree
burglary and other felonies. He contends that denial of his
motion to appoint substitute counsel was an abuse of discretion;
that his jury trial waiver entered while acting in pro. per. was
invalid and not knowing, intelligent, or voluntary; that the denial
of his motion to withdraw his jury trial waiver was an abuse of
discretion; and that an unauthorized portion of his sentence must
be corrected. We correct the unauthorized portion of his
sentence, but we find no merit to defendant’s remaining
contentions and otherwise affirm the judgment.
BACKGROUND
Defendant was charged with second degree burglary in
violation of Penal Code section 459 (count 1),1 and three counts of
soliciting, inducing, or encouraging a minor to commit a felony in
violation of section 653j (counts 2, 3, 4). The information further
alleged pursuant to sections 667, subdivisions (b) through (j) and
1170.12 that defendant had been convicted in 1985 of robbery, a
serious or violent felony.
After a court trial defendant was convicted of all four
counts. The trial court found true defendant’s prior strike
conviction and sentenced him on January 27, 2020. The court
chose count 2 as the base term and sentenced defendant to the
middle term of five years, doubled to 10 years as a second strike.
The court imposed the middle term of five years on each of counts
3 and 4, and stayed the execution pursuant to section 654. On
1 All further unspecified code references are to the Penal
Code.
2
count 1 the court imposed the high term of three years, doubled
to six years as a second strike, stayed pursuant to section 654.
The court imposed a $3,000 restitution fine as well as statutory
fees and assessments.
Defendant timely filed a notice of appeal from the
judgment.
Prosecution evidence
Karaleigh Roe testified that she was the executor of her
late father-in-law’s estate, which included a house in Palmdale,
where she lived for six to eight months prior to listing it for sale
in April 2018. Though it was listed with Keller Williams, no
signs were posted, and an offer was accepted the same day it was
listed. In June 2018 while the house was still in escrow, Roe was
still in the process of cleaning and still had some items of
personal property there. She or other family members visited the
house once or twice per week. When there in June, Roe noticed
that the sliding glass door in the master bedroom was unlocked
and property was missing from inside the house, specifically,
snow skis, a box of keys, a furniture dolly, a flashlight, a mini
refrigerator, a television projection lens, and toilet paper. The
seven television sets in the house were not taken.
There were four motion-activated surveillance cameras
with audio on the property. One camera was in the living room
and three were outside with views of the house, front yard, and
patios. Video recorded by the cameras one day in June was
played in court. Those later identified as defendant, his wife, and
three children are seen on video inside the house for
approximately 20 minutes taking various items. Roe testified
that the object defendant was seen holding was toilet paper that
had been in the hallway bathroom. Defendant is also seen
3
holding the furniture dolly that was missing, and then the mini
refrigerator that had been on the back patio. A woman’s voice is
heard saying something about the maroon curtains in the
bedroom. A woman is later seen holding snow skis, which had
been either in the hallway or the garage. A boy is seen holding a
kitchen timer, a lens for a projection TV, and a box of various
keys Roe had collected from around the house. Roe did not know
defendant or give him permission to enter, and she had never
before seen any of the people depicted in the video. Roe put the
surveillance video on a social media community page, which led
to the identification of the people in the house.
Defense evidence
Defendant testified that he lived three blocks away from
the Roe house since 2010 and was looking for another house in
the area. He had seen the Roe property several times and knew
it was empty. On June 1, 2018, when defendant stopped there
with his family, they parked in front, intending only to look.
When defendant walked around the house he found the open
door. He denied entering the house with the intent to steal.
Defendant sent his son across the street to get information from
neighbors about who was selling the house, but he returned
saying no one was home.
Once inside the house defendant saw that it was vacant,
with things left behind that looked like junk. The house and
carpet were filthy. Defendant claimed that he did not know that
his wife took the skis until he saw them in the car. He thought
the dolly was abandoned junk that had been left outside in the
backyard, where it looked like it had been for a long time. The
wheels were flat, it was cracked on one side and coming loose,
and it was rusty. The refrigerator had no electrical cord, but he
4
could fix refrigerators and other appliances. Defendant explained
that he operated a hauling service and as a result had learned to
fix things that people had paid him to haul away. Defendant
testified that the object that looked like toilet paper in the video
was in fact recyclable cans. He never saw a camera lens in the
house, his car, or at home. Defendant denied telling the children
to take whatever they wanted and claimed that he would never
tell them to take things. While in the house defendant’s son
found the phone number of the real estate agent, who defendant
called and left his number.
Rebuttal
Roe testified that the dolly was only a few years old and
had been kept in the living room. She had purchased it in order
to clean out the property in 2016. She did not think the tires
were flat. When she first saw the video it looked as though the
people were finding whatever they wanted to take, but the
children were behaving as though they believed they were
looking for a place to live.
DISCUSSION
I. The Marsden motions2
Defendant contends that the trial court’s denial of his
motion to appoint substitute counsel was an abuse of discretion,
which resulted in a violation of his right to counsel guaranteed by
the Sixth Amendment to the United States Constitution.
“When a defendant seeks substitution of appointed counsel
pursuant to People v. Marsden, supra, 2 Cal.3d 118, ‘the trial
court must permit the defendant to explain the basis of his
2 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
5
contention and to relate specific instances of inadequate
performance. A defendant is entitled to relief if the record clearly
shows that the appointed counsel is not providing adequate
representation or that defendant and counsel have become
embroiled in such an irreconcilable conflict that ineffective
representation is likely to result.’” (People v. Taylor (2010) 48
Cal.4th 574, 599.) “We review the denial of a Marsden motion for
abuse of discretion. [Citation.] Denial is not an abuse of
discretion ‘unless the defendant has shown that a failure to
replace counsel would substantially impair the defendant’s right
to assistance of counsel.’” (Ibid.)
A. The motions
Defendant made five Marsden motions in March 2019, on
June 3, 2019, July 17, 2019, January 6, 2020, and January 27,
2020. Defendant challenges only the trial court’s refusal to
appoint substitute counsel in place of Deputy Public Defender
Maceo Lewis, which was the subject of the three 2019 motions.
Defendant’s requests to replace Lewis were heard on June 3,
2019 and July 17, 2019.3
1. June 3, 2019
When the case was called for jury trial on June 3, 2019,
defendant was represented by Lewis. Both sides announced
ready for trial. When defendant wished to address the court, the
courtroom was cleared for a Marsden hearing. The court noted
that defendant had brought a Marsden motion two months
earlier and asked defendant to focus on what had happened since
then.
3 The appellate record does not contain a transcript of the
Marsden hearing conducted in March 2019.
6
Defendant responded that he had asked counsel to call his
accountant, his home lender, and his children, especially his 18-
year-old son. His children would testify to his intent upon
entering the house was an interest in buying the property. His
accountant would testify that he was aware that defendant was
buying another house, that he had been in business for over
seven years as a scrapper, and that he cleaned homes and hauled
away junk for owners and real estate agents. Defendant
explained that this would give him a defense to the allegation
that he had taken the mini refrigerator, because it was outside
the house. Defendant explained that the lender could testify that
he had been buying a ranch, but the contract had been breached,
so he was searching for another property. Defendant also said
that he told counsel that the witness (Roe) had lied under oath at
the preliminary hearing and had withheld a portion of the
surveillance video that would prove it. Defendant claimed that
the parts withheld would show exactly why he was there.
The court explained to defendant that the preliminary
hearing could not be relitigated, and at trial, if the prosecutor
played only a portion of the video out of context, his attorney
would have the opportunity to play the portion that would put it
in context. The court asked defendant, “So has Mr. Lewis told
you he’s not willing to do that?” Defendant replied, “No. [T]hat’s
the good thing about him. He . . . actually listened to what I said,
because I’ve been telling him that the lady was lying and that
there was more to that video than what they’re showing. They’re
withholding credible evidence purposefully.” Defendant added,
“[T]hat’s what bounded me over.” Asked why that would be a
basis to remove counsel from the case, defendant explained that
he had asked counsel to present the video to the court and to ask
7
for a dismissal based upon the witness’s having lied under oath.
The court explained to defendant that there was no legal basis for
a motion to dismiss, that these matters had to be presented to a
jury, not the court, and that counsel was correct. Defendant said
that this made no sense and suggested that defense counsel
should present the video to the district attorney, who would then
see the truth and would have no reason to take this matter
further.
Lewis told the court that he had been practicing criminal
law since 2006 and had conducted 58 trials, including cases
similar to this one. He was assigned the case in December 2018
and conducted the preliminary hearing. As far as he knew he
had been given all the same copies of the videos given to the
district attorney and had viewed them. Since both sides had the
videos Lewis saw no reason to present them to the district
attorney. Lewis did not think the videos supported a defense, but
planned to cross-examine the witness if she gave any testimony
that was inconsistent or taken out of context. Although the video
showed that the refrigerator was outside the house, it also
showed that defendant’s wife could be seen inside the house with
defendant taking things. Lewis also told the court that the
defense investigator had interviewed the witnesses and
suggested that defendant’s children appeared to have been
coached, and thus would not be good witnesses. The defense
investigator also interviewed the accountant and real estate
agent and Lewis found nothing relevant in the interviews. The
fact that defendant was trying to buy another house had no
relevance to the defense.
The court denied the motion for appointment of substitute
counsel. In open court defendant continued to argue that his
8
witnesses should be presented and that defense counsel should
call them. The trial court indicated that the issue involved
tactical decisions that had already been discussed in that day’s
Marsden hearing and previously in the March Marsden hearing.
Defendant continued to argue that his counsel should discuss his
witnesses and the video with him or permit defendant to speak to
the prosecutor. When Lewis stated that they had been over the
video, defendant argued that they had not, “not to the full
extent.” Because defendant constantly repeated his complaints
and misrepresented things they had repeatedly discussed, Lewis
asked the court to declare a doubt as to defendant’s competency
to stand trial. The court then suspended proceedings and ordered
a psychiatric report.
2. July 17, 2019
After the psychiatric examination revealed no mental
illness or disorder and proceedings were reinstated on July 17,
2019, defendant requested another Marsden hearing. During the
hearing, defendant said that he wanted new counsel because he
did not want to be represented by someone who thought he was
crazy or incompetent. “I have no trust in him, and he has no
trust in me. He doesn’t listen to me. He doesn’t respect me, and
I don’t need anybody on my side like that.” Defendant also
complained that he had repeatedly asked his counsel to get video
to show that the witness was lying and to go deeper into his side
of the situation. Defendant explained that the witness testified
at preliminary hearing that the video did not exist, but defense
counsel asked for only four minutes to cross-examine her.
Defendant then told the court that “[the agents] put this
whole thing on television to the news saying that we were
burglarizing a house. They made it . . . seem like we took jewelry
9
and money, like they made this whole big thing in order to
deceive the police department and everything.” Defendant
explained that it got him evicted and that it was all a conspiracy.
Defendant again told the court that he asked defense counsel to
admit this new evidence and the new discovery of the video that
shows that the witness lied, that the door was open, and that the
house was uninhabited, so it could not have been burglary
because there was no “breaking and entering.” Defendant again
complained that defense counsel would not call defendant’s
accountant and lender.
When asked by the court to address defendant’s concerns,
Lewis explained that the district attorney had all the evidence
that defendant wanted him to present to them and yet they
decided to prosecute him. Lewis noted that the video including
defendant’s comments about wanting to buy the house was
presented at the preliminary hearing, and the witnesses
defendant wanted to call had nothing to do with the facts of this
case. He added that the house defendant had been trying to buy
and his claim that Keller Williams breached the contract also had
nothing to do with this case. Lewis explained that defendant
believed that Roe was an agent of Keller Williams, and that
Keller Williams was using this case to discredit him in relation to
the breach of contract issue; but the breach of contract issue had
nothing to do with this case.
Lewis also explained that when the investigator asked the
children questions, they would pause and speak to someone in
the background before responding, which adversely affected their
credibility.
10
Defendant then requested to represent himself. He signed
a Faretta4 waiver form, which advised him of his constitutional
rights and the dangers and disadvantages to self-representation,
the charges and potential consequences, and the court’s advice
and recommendations. The form included defendant’s signature
certifying that he had read, understood, and considered all such
advisements, and “freely and voluntarily gave up [his] right to
have an experienced professional attorney represent [him].” After
the court went over the form with defendant it accepted his
waiver and granted his request.
B. No irreconcilable conflict
Defendant argues that the trial court’s July 17 ruling was
an abuse of discretion because he and Lewis were embroiled in an
irreconcilable conflict. Defendant contends that the asserted
error is reversible per se because the trial court failed in its duty
of inquiry by not addressing the breakdown in trust expressed by
defendant. Defendant argues that the court was required to ask
Lewis if he could do anything to regain defendant’s trust or if he
felt that the breakdown in the relationship could be repaired.
Defendant has provided no authority requiring the court to
ask specific questions. A Marsden inquiry is adequate where, as
here, the defendant is allowed to fully state his complaints and
his attorney is asked in the defendant’s presence to summarize
his experience in criminal law and to address defendant’s
complaints. (People v. Barnett (1998) 17 Cal.4th 1044, 1091.)
The trial court was not required to specifically “‘inquire into
[defendant]’s complaints that he did not trust his appointed
counsel.’ . . . The fact that defendant did not trust his attorney
4 Faretta v. California (1975) 422 U.S. 806.
11
did not establish a conflict that required that appointed counsel
be removed. ‘“[I]f a defendant’s claimed lack of trust in, or
inability to get along with, an appointed attorney were sufficient
to compel appointment of substitute counsel, defendants
effectively would have a veto power over any appointment and by
a process of elimination could obtain appointment of their
preferred attorneys, which is certainly not the law.”’” (People v.
Jackson (2009) 45 Cal.4th 662, 688.)
We reject defendant’s argument that a lack of trust based
upon counsel’s declaring a doubt about defendant’s competence
creates an irreconcilable conflict. Defendant contends that his
position is supported by People v. Taylor, supra, 48 Cal.4th at
pages 596-599, in which the trial court granted the defendant’s
sixth Marsden motion due to the defendant’s asserted lack of
trust, finding that a breakdown in the relationship resulted after
counsel declared a doubt and then members of the defense team
testified about their contacts with defendant at the competency
hearing. Here, as the parties submitted the issue on the
psychological report, there is no similarity to the facts in Taylor.
And as the trial court’s discretion in granting the Marsden
motion was not challenged in in Taylor, there is no holding, as
defendant’s argument suggests, that counsel’s declaring a doubt
necessarily creates an irreconcilable conflict.5
5 Nor does it demonstrate constitutionally inadequate
assistance. “‘“Both the due process clause of the Fourteenth
Amendment to the United States Constitution and state law
[(§ 1367)] prohibit the state from trying or convicting a criminal
defendant while he or she is mentally incompetent.”’” (People v.
Sattiewhite (2014) 59 Cal.4th 446, 464.) Thus, counsel’s declaring
a doubt may be presumed to have been done in the client’s best
12
Moreover, it is the defendant’s obligation to make “‘a
sustained good faith effort to work out any disagreements with
counsel . . . .’” (People v. Clark (2011) 52 Cal.4th 856, 913
(Clark).) “‘[T]he trial court need not conclude that an
irreconcilable conflict exists if the defendant has not tried to work
out any disagreements with counsel and has not given counsel a
fair opportunity to demonstrate trustworthiness.’” (People v. Cole
(2004) 33 Cal.4th 1158, 1192.) Defendant argues here that a good
faith effort to work out disagreements is demonstrated by his
statement toward the end of the Marsden hearing that he “tried
over and over again.” Defendant offered nothing to show an
effort to resolve the disagreement.
At one point defendant told the court that he did not trust
Lewis because he had “asked him over and over again . . . to go
deeper into [his] side of the situation.” Defendant then again
asserted at length that the witness lied; that the full video would
have shown his innocence at the preliminary hearing; that
counsel and the prosecution did not have the full video; and that
counsel refused to call his witnesses, bring a motion to dismiss,
negotiate a dismissal with the prosecutor, or call defendant’s
witnesses. Defendant concluded, “I’m asking him to work for me
and do things I need to do, not the things that he need [sic] to do
because it isn’t him. And he talks to me like that, and it doesn’t
make sense.” It is apparent that what defendant “tried over and
over again” referred not to attempts to work out disagreements,
but to have counsel agree to conduct the trial as defendant
interest. (Cf. People v. Jernigan (2003) 110 Cal.App.4th 131, 135-
137.)
13
thought best, even after the trial court and counsel explained the
problems with the strategy defendant advocated.
Defendant made it clear that he did not think public
defenders in general were qualified. He told the court that he
had asked over and over for someone more experienced and
qualified like a “state appointed attorney” and not a public
defender. When the court explained that the public defender’s
office was the state appointed attorney, defendant explained that
he meant a private attorney or someone with a different type of
office from the public defender. A breakdown in the attorney-
client relationship due to defendant’s prejudice does not entitle
him to new counsel. (See Clark, supra, 52 Cal.4th at p. 913.)
Furthermore, except for his distrust of public defenders,
defendant’s repeated complaints “were essentially tactical
disagreements, which do not by themselves constitute an
‘irreconcilable conflict.’ [Citation] Indeed, a ‘defendant does not
have the right to present a defense of his own choosing, but
merely the right to an adequate and competent defense.’” (People
v. Cole, supra, 33 Cal.4th at p. 1192.)
Relying on People v. Cruz (1978) 83 Cal.App.3d 308, 317-
318, defendant argues that “[t]he court failed in its duty of
inquiry”; and citing People v. Hill (1983) 148 Cal.App.3d 744, 755-
756, he argues that his decision to represent himself was thus
compelled by the court’s erroneous denial of his Marsden motion,
rendering the judgment reversible per se. In Cruz and unlike
here, however, the inquiry the trial court failed to make was to
hold a Marsden hearing to allow defendant to describe the
particulars of his claim and ask counsel to respond. (Cruz, supra,
at pp. 317-318.) And also unlike here, the Marsden error in Hill
was the denial of the motion based upon ex parte
14
communications. (Hill, supra, at p. 755.) As the California
Supreme Court observed, neither Cruz nor Hill supports a claim
of error where the defendant has been given “ample opportunity
to explain the basis of his unhappiness and then denied the
motion based in part on counsel’s explanations of his conduct.”
(People v. Abilez (2007) 41 Cal.4th 472, 487-490.) Here, the
Marsden inquiry was adequate, as defendant was allowed to fully
state his complaints and his attorney was asked in the
defendant’s presence to summarize his experience in criminal law
and to address defendant’s complaints. (See People v. Barnett,
supra, 17 Cal.4th at p. 1091.) In sum, the trial court did not fail
in its inquiry.
Rather defendant’s refusal to cooperate created his conflict
with Lewis, and there is no indication in the record that Lewis
was incompetent or would not have provided adequate
representation if defendant had cooperated. Thus defendant’s
refusal to cooperate and a claimed lack of trust may create a
conflict, “[b]ut that does not demonstrate an ‘irreconcilable
conflict’ that would require the trial court to replace appointed
counsel.” (People v. Michaels (2002) 28 Cal.4th 486, 523.) We
conclude that the trial court did not abuse its discretion in
denying the motion.
II. Validity of in pro. per. jury trial waiver
Defendant concedes that there is no dispute that while
acting in pro. per., he expressly waived his right to a jury trial in
open court. However, defendant contends that his waiver was
invalid because his counsel never consented after defendant
relinquished his pro. per. status.
“Under the federal Constitution and our state Constitution,
a defendant in a criminal prosecution has a right to a jury trial.”
15
(People v. Sivongxxay (2017) 3 Cal.5th 151, 166 (Sivongxxay);
accord, U.S. Const., 6th Amend.; Cal. Const., art. I, § 16.)
However, waiver of this right is permitted under both
Constitutions. (Duncan v. Louisiana (1968) 391 U.S. 145, 158;
Cal. Const., art. I, § 16.) However, in a criminal case, such
waiver is permitted only with “the consent of both parties
expressed in open court by the defendant and the defendant’s
counsel.” (Cal. Const., art. I, § 16.)
Defendant recognizes that a defendant who represents
himself in pro. per. is deemed to be his own counsel and fully
capable of waiving his right to a jury trial. (People v. Kranhouse
(1968) 265 Cal.App.2d 440, 449.) As defendant, acting as his own
counsel, entered an express waiver, it cannot be said that his
counsel did not enter an express waiver.
Defendant next asks that we decide, as a matter of first
impression, that a jury trial waiver entered by a pro. per.
defendant is automatically invalidated when the pro. per. status
is relinquished and appointed counsel does not thereafter consent
to the waiver. Defendant argues that such a decision is
supported by the existing rule that defense counsel’s objection
will supersede a defendant’s consent and prevent a waiver. (See
People v. Peace (1980) 107 Cal.App.3d 996, 1007-1008.)
Defendant then leaps to the conclusion that “[b]ecause defense
counsel can supersede a client’s wish for a bench trial by
objecting to it, an attorney who is appointed to represent a client
who waived his right to a jury trial when he was pro per must
consent to that waiver in order for it to be valid.”
Defendant has taken a leap too far. “It is well established
that a waiver of a jury trial, voluntarily and regularly made,
cannot afterward be withdrawn except in the discretion of the
16
court.” (People v. Chambers (1972) 7 Cal.3d 666, 670 (Chambers),
citing People v. Osmon (1961) 195 Cal.App.2d 151, 153, 154 &
People v. Melton (1954) 125 Cal.App.2d Supp. 901.) It follows
that valid waiver, once entered, cannot simply be deemed invalid
without seeking the discretion of the court.
III. Knowing, intelligent and voluntary jury trial waiver
A. Knowing and intelligent
Defendant contends that the judgment must be reversed
because his jury trial waiver was not knowing and intelligent.
He argues that this is shown by an inadequate advisement, the
lack of a written waiver, his motive in wanting a court trial only
because the prosecution wanted a jury trial, and defendant’s
change of mind after speaking to his new attorney.
“To be valid, a defendant’s waiver of the right to a jury
must . . . be ‘knowing and intelligent, that is, “‘“made with a full
awareness both of the nature of the right being abandoned and
the consequences of the decision to abandon it . . . .”’”’” (People v.
Weaver (2012) 53 Cal.4th 1056, 1071-1072.) “‘[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.’” (Sivongxxay, supra, 3 Cal.5th at p. 166, quoting
Adams v. U.S. ex rel. McCann (1942) 317 U.S. 269, 278.)
The California Supreme Court has offered “some general
guidance to help ensure that a defendant’s jury trial waiver is
knowing and intelligent, and to facilitate the resolution of a
challenge to a jury waiver on appeal. [The court] recommend[ed]
that trial courts advise a defendant of the basic mechanics of a
jury trial in a waiver colloquy, including but not necessarily
limited to the facts that (1) a jury is made up of 12 members of
the community; (2) a defendant through his or her counsel may
17
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. [T]he trial judge [should] take additional steps as
appropriate to ensure, on the record, that the defendant
comprehends what the jury trial right entails [such as] by asking
the defendant directly if he or she understands or has any
questions about the right being waived.” (Sivongxxay, supra, 3
Cal.5th at pp. 169-170.) The recommended colloquy is advisory,
and “not intended to limit trial courts to a narrow or rigid
colloquy.” (Id. at p. 170.)
Here, the trial court adequately explained basic mechanics
of a jury trial, including all the recommended advisements. The
court told defendant:
“You absolutely have the right to a trial in this
open matter. You have the right to a jury trial if you
choose to have a jury trial. At a jury trial, the only
way that you could be convicted of any of the charges
against you or have any of those allegations found to
be true would be if all 12 members of the jury, all 12
of them unanimously agree that the prosecution had
proven the charge or the allegation to the standard of
beyond a reasonable doubt.
“At a jury trial you would have the right to
confront and cross-examine the witnesses against
you. You would have the right to use the subpoena
power of this court to subpoena witnesses into
evidence on your behalf at no cost to you. You have
the right to take the stand and testify on your own
behalf if you choose to do so. You also have the right
to remain silent, which means that nobody could
force you to testify against yourself.”
18
Asked whether he understood his right to a jury trial,
defendant replied, “Yes, ma’am,” and the court continued:
“If you don’t want a jury trial, you can have a
court trial instead. At a court trial you have all of
those same rights that I just discussed with you. The
only difference would be that it would be the judge,
not the jury, who would make the decision as to
whether or not the prosecution had proven the
charges or the allegations to that same standard of
beyond a reasonable doubt. [¶] So their burden of
proof doesn’t change. Your rights don’t change. The
only difference is it will be a judge making that
decision rather than 12 members of the community.
[¶] Do you understand that, sir?”
Defendant replied, “Yes, ma’am.”
Defendant claims that the advisements were inadequate
because the court did not explain that he would be involved in
selecting the jury through a voir dire process, that jurors must be
impartial, or that the judge must excuse jurors who cannot be
impartial. We disagree. The court advised defendant that he
would be able to participate in jury selection, and there is no
requirement that the court explain the voir process in detail. As
Justice Corrigan observed in her concurring and dissenting
opinion in People v. Daniels (2017) 3 Cal.5th 961 (Daniels), “there
is no ‘rigid formula or particular form of words that a trial court
must use in taking a jury waiver,’” and the California Supreme
Court has “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. 1011 (conc. & dis. opn. of Corrigan, J.), quoting Sivongxxay,
supra, 3 Cal.5th at pp. 169, 168.)
19
Quoting Daniels, supra, 3 Cal.5th at page 1002 (conc. & dis.
opn. of Cuéllar, J.), defendant suggests that a jury trial waiver by
a pro. per. defendant cannot be knowing unless the record
indicates that he discussed the right with competent counsel.
Defendant also complains that the waiver was never written.
There are no such rules, although a lack of representation by
counsel is one factor to be considered along with other
circumstances. So long as the oral advisements are adequate, as
we have concluded they were here, the waiver is effective. (See
id. at pp. 994, 996-997 (conc. & dis. opn. of Cuéllar, J.).)
Defendant asserts that his motive shows lack of reflection.
Defendant refers to comments made on June 3, after he first
indicated his desire for a court trial and was told the prosecution
was unwilling to waive a jury. He said, “I think I know why they
want to have a jury trial. That’s the reason why I don’t want to
have a jury trial, and I don’t think that that’s fair.” Defendant’s
comments indicate illogical thinking, but not a lack of
comprehension of what the jury trial right entails, particularly in
light of the trial court’s additional steps to ensure that defendant
understood, by directly asking him whether he understood and
whether he had any questions about the right being waived. (See
Sivongxxay, supra, 3 Cal.5th at pp. 169-170.)
After the trial court asked defendant whether he
understood and whether he had any questions, defendant said he
understood, asked whether the court knew who the judge would
be, and stated that he would prefer a judge who was unfamiliar
with the case. Defendant thus showed that he knew that a judge
would be deciding his guilt, and that he had reflected on the
possibility of prejudgment based upon a knowledge of the case.
In addition, when the court replied that it was possible but could
20
not be guaranteed, and asked whether that was okay, defendant
replied “yes.” Defendant said he had no more questions and
again said “yes” when the court asked, “So, sir, do you
understand your right to a jury trial and all those rights that go
along with it.” Defendant replied, “yes” again when the court
asked, “And at this time, sir, do you give up your right to a jury
trial agreeing that instead you will have a court trial?”
Defendant also agreed to have a court trial as to the prior
conviction allegation. We are satisfied that defendant’s waiver
was knowing and intelligent.
B. Voluntary
Defendant claims that the waiver was not voluntary
because the trial court “coerced” the prosecution into agreeing to
the waiver and promised defendant a benefit to induce him to
waive a jury trial.
In addition to being knowing and intelligent, a jury trial
waiver must be voluntary “‘“‘“in the sense that it was the product
of a free and deliberate choice rather than intimidation, coercion,
or deception.”’”’” (People v. Weaver, supra, 53 Cal.4th at pp. 1071-
1072.) Defendant claims that the waiver was a product of
coercion by the trial court because, he argues, “there is no doubt
that the court coerced the People into waiving a jury trial.”
Our review of the record does not support defendant’s
assertion that the trial court coerced the prosecution into waiving
a jury trial. Defendant first requested a court trial on June 3,
2019, after defendant’s Marsden motion was denied when he was
still represented by Lewis, and the case was transferred to
another department for trial. The prosecutor was not willing to
waive a jury, and the court indicated it would order a jury panel.
Defendant pressed the issue, and the court explained that the
21
prosecution also had a right to a jury trial. After further
discussion regarding defendant’s unhappiness with defense
counsel’s trial strategy, proceedings were suspended pursuant to
section 1368.
On July 17, 2019, after criminal proceedings were
reinstated and another Marsden hearing was conducted, the trial
court granted defendant’s request to represent himself. On
July 18, the trial court appointed temporary standby counsel and
asked defendant whether he still wanted a court trial. Defendant
said he did, and the court replied that if defendant wanted a
court trial, it would “strongly suggest to the People that they also
go along with that. So if I need to talk to the head deputy . . . , I
can do that, but it is up to you. You have the right to a jury trial,
so does the prosecutor. But if you are willing to give up that
right, I am willing to try to pressure them to give up their right
as well.” Defendant said he would “prefer to have a judge trial.”
Later that day, with the head deputy in court, defendant
confirmed that he still wished to waive his right to a jury and
have a court trial if the prosecution agreed.
Despite saying it would “try to pressure” the prosecutor and
would “strongly suggest to the People that they also go along,”
there is nothing in the record showing that the court did more
than to say the following: “All right. Are the People willing to
waive their right to a jury trial and have a court trial in this
matter as well?” When the deputy said, “Yes,” the court gave
defendant the appropriate advisements and took a waiver, as we
discussed in part III.A., above. There is no evidence in the record
of any pressure placed on the prosecutor.
Relying on People v. Collins (2001) 26 Cal.4th 297, 309
(Collins), defendant also contends that the trial court used the
22
promise of a benefit to induce defendant to waive his right to a
jury trial. “[T]he state may not punish a defendant for the
exercise of a constitutional right, or promise leniency to a
defendant for refraining from the exercise of that right.” (Id. at
p. 306, citing United States v. Jackson (1968) 390 U.S. 570, 580-
582.) Thus, a jury trial waiver is considered involuntary if it has
been induced, intentionally or unintentionally, by the trial court’s
offer of a benefit. (Collins, supra, at p. 309.)
In Collins, while giving the defendant advisements before
taking his jury trial waiver, the defendant said, “‘I was told that
it would—that it was some reassurance or some type of benefit.’”
(Collins, supra, 26 Cal.4th at p. 302, italics omitted.) The court
said that it had “‘indicated to counsel . . . that there might well be
a benefit in it. Just by having waived jury, that has some effect
on the court. Do you understand that? By not taking up two
weeks’ time to try the case, but rather giving—just having it in
front of a judge alone.’” (Ibid., italics omitted.) When defendant
confirmed that this was his understanding as well, the court said,
“‘I didn’t specify and I’m not specifying that there’s any particular
benefit, but that by waiving jury, you are getting some benefit,
but I can’t tell you what that is because I don’t know yet.’” (Ibid.,
italics omitted.) The California Supreme Court held: “The
circumstance that the trial court did not specify the nature of the
benefit by making a promise of a particular mitigation in
sentence, or other reward, does not negate the coercive effect of
the court’s assurances. [Citation.] The inducement offered by the
trial court to defendant, to persuade him to waive his
fundamental right to a jury trial, violated defendant’s right to
due process of law.” (Id. at p. 309.)
23
In this case, there was no express or implied promise of any
reward, specified or unspecified, or any suggestion that there was
a benefit to be gained by waiving a jury trial. Defendant argues
that the court’s offer to try to pressure the prosecutor and to
speak to the head deputy induced defendant into believing that
he was receiving a benefit by having a court trial, and that
benefit was to have something the People did not want.
Defendant’s argument is based upon a comment that he made
after he had already decided he wanted a court trial and six
weeks before the court said that it would “try to pressure” the
prosecutor. Here, unlike any part of the colloquy in Collins, the
court made no reply to defendant’s comment, did not refer to it,
and did not suggest or imply that defendant would benefit by the
prosecutor’s waiver. The record does not support defendant’s
claim.
IV. Denial of motion to withdraw jury trial waiver
Defendant contends that the trial court abused its
discretion in denying his motion, made on the day of trial, to
withdraw the jury trial waiver and proceed to jury trial, and that
the error resulted in a violation of his right to a jury trial
guaranteed by the Sixth Amendment to the United States
Constitution and article I, section 16 of the California
Constitution.
On January 6, the case was called by Judge Chung, who
stated: “I was told that [defendant] waived his right to a jury
trial. It is a court trial. But now he wants a jury trial; is that
right?” Defendant’s attorney replied that was correct, that
defendant had “allegedly waived” his right to a jury trial when he
was pro. per., but now wanted a jury trial. Counsel explained
that he had reviewed the transcripts, read the advisements, but
24
did not see a response from defendant.6 He added that he told
the prosecutor on Friday or “over the weekend” that defendant
now wanted a jury trial.
The prosecutor told the court that she had learned only
that morning that defendant was going to seek to rescind the jury
trial waiver. She also represented that she had been in court at
the time of the waiver and that the judge “took a very full,
express waiver and the defendant did expressly waive his jury
trial rights.” The prosecutor opposed the request because she
was ready for trial, which had been continued for multiple
reasons, the victim had come to court on four separate occasions
since April 2019, and it would cause her great inconvenience to
have to return again. In addition, she had prepared for a bench
trial, approaching the case much differently than she would have
for a jury trial, and had called off a witness based upon a
stipulation. The trial court noted that Roe looked distressed,
asked her whether it would cause her “a lot of distress” to have to
come back tomorrow, and she said it would. The prosecutor
explained that as a sales representative, Roe traveled
approximately 300 miles per day for her work and has had to
reschedule appointments.
The trial court denied the “last minute request for a jury
trial.” The court explained that it had balanced several factors,
including defendant’s constitutional right to a jury trial, witness
inconvenience and hardship, Roe’s distress, and the prosecutor’s
6 The record reflects that after the judge gave defendant
advisements regarding jury trial, she asked defendant, “And at
this time, sir, do you give up your right to a jury trial agreeing
that instead you will have a court trial?” Defendant replied,
“Yes, ma’am,” and the prosecutor then waived a jury trial.
25
reliance on the waiver in preparing for a court trial rather than a
jury trial.
Defendant refers to Chambers, which held: “Absent special
circumstances the court may deny a motion to withdraw such a
waiver especially where adverse consequences will flow from the
defendant’s change of mind. In exercising its discretion the court
may consider such matters as the timeliness of the motion to
withdraw the waiver, the reason for the requested withdrawal
and the possibility that undue delay of the trial or inconvenience
to witnesses would result from granting the motion.” (Chambers,
supra, 7 Cal.3d at pp. 670-671.) Defendant argues that his
waiver was not “regularly made” and that there were “special
circumstances” that mandated granting the request, because
defendant’s jury trial waiver was made without benefit of counsel
and entered without counsel’s consent (contentions we rejected in
part II above), and because defendant’s later change of mind was
motivated by advice of counsel.
Once a defendant who appeared in pro. per. “has engaged
counsel who is of the opinion that the defendant’s interests will
be furthered by a jury trial rather than a trial by judge, the
constitutional concern that the consent of the lawyer, as well as
of the defendant, to the waiver be secured should be given
consideration in ruling upon a subsequent application of
defendant’s counsel to withdraw the waiver.” (People v. Melton,
supra, 125 Cal.App.2d Supp. at p. 906.) “In such cases, where
following the employment of counsel by the defendant, a timely
demand has been made for a jury trial, the court should permit a
revocation of the waiver and grant a trial by jury.” (Ibid., italics
added.) Defendant’s request to withdraw his waiver was not
timely. It was made on January 6, 2020, almost four months
26
after the new attorney was appointed to represent defendant on
September 9, 2019.
Defendant claims that both he and his attorney had
requested a withdrawal of the waiver “months prior,” although he
acknowledges that the record prior to January 6, 2020, does not
reflect a request to withdraw the waiver or counsel’s advice.
Defendant asserts that its existence is demonstrated by
representations made in the Marsden hearing, which was
conducted on January 6 after the trial court denied the motion to
withdraw the waiver. We disagree. In that Marsden hearing,
defendant claimed that when he obtained a new attorney, he was
told that he should have a jury trial, and “we let them know way
ahead of time on the 19th”; and that he told Judge Blanchard
that he wanted a jury trial. Defense counsel represented in the
January 6 Marsden hearing that he had told defendant “before
the holiday” that they had to have a jury trial, but he did not say
what holiday.
In addition, although defendant claims that both he and his
attorney had tried to withdraw the waiver “months prior,”
defendant also asserts that it is unclear when his attorney knew
that a court trial had been scheduled. Defendant also suggests
that the tardiness of the request for jury trial was the trial court’s
fault, because after his new attorney’s appointment, “the record
repeatedly references the case being scheduled as a jury trial.”
We reject defendant’s suggestion that the record is unclear
as to when new counsel should have known that a court trial had
been scheduled. Furthermore, defendant exaggerates the record
as “repeatedly” referencing a jury trial. The trial court granted
defendant’s request to represent himself on July 17, and the
following day the court appointed temporary standby counsel,
27
who was present in court. On August 16, 2019, defendant’s new
attorney was appointed, and on August 21, 2019, the trial court
“set the court trial date for September 9th.” The August 21
minute order states: “Matter is trailed to September 9, 2019, . . .
for court trail [sic] . . .”; and “Next scheduled event: [¶] 09/09/19
830 AM court trial.” On September 9, counsel was again present
in court when the trial court announced, “We’re here for jury trial
in the case ending in 866.” The court then explained to
defendant that new charges had been filed against him, and then
said, “[W]e’re here for jury trial—or I’m sorry—for court
trial . . . .” At that time, defendant asked to give up his pro. per.
status and have counsel appointed. After the motion was granted
and counsel was appointed to represent defendant, the court said,
“[W]e are set for a court trial today,” and asked, “Is the defense
ready for court trial?” Counsel replied that the defense was not
ready and asked for a continuance. At the pretrial hearings of
November 5, 2019, and again on November 18, when both sides
agreed to January 6, 2020, the trial court again misspoke, by
referring to a jury trial.
There was no correction by the court on these last two
occasions, and the minute order of November 18 states, “The
matter is set for jury trial on January 6, 2019 [sic] as day 6 of 10.”
Neither counsel brought the obvious errors to the court’s
attention, and defendant’s attorney has never claimed that he
was misled by the trial court’s having misspoken on two
occasions. Moreover, counsel’s statements on January 6, 2020,
indicate that he was not misled. When court called the matter
for trial on that date and said that defendant had indicated that
he now wanted a jury trial, counsel replied that was correct, and
he had informed the prosecutor over the weekend that defendant
28
wanted a jury trial. In the Marsden hearing, counsel told the
court that he had told defendant “before the holiday” that they
had to have a jury trial. Thus, counsel was aware by August 21,
2019, that defendant had waived a jury trial, and had known for
at least several days prior to the weekend that the case was
scheduled for a court trial on Monday, January 6, but waited
until the day of trial to make the motion.
The motion was untimely as it was made the first day of
trial, which had been postponed twice since June 2019. No
special circumstances have been presented. The only reasons
given for the request to rescind defendant’s waiver was that on
advice of counsel defendant wanted a jury trial, and it was not
clear to defense counsel that defendant had made an express
waiver.
We conclude that denial of defendant’s untimely motion to
withdraw his jury trial waiver was not an abuse of discretion, as
the trial court weighed “the reason for the requested withdrawal
and the possibility that undue delay of the trial or inconvenience
to witnesses would result from granting the motion,” and there
are no “special circumstances which would compel the court to
grant the motion notwithstanding delay of the trial.” (Chambers,
supra, 7 Cal.3d at p. 671.)
Finally, defendant claims that the trial court abused its
discretion in placing emphasis on the inconvenience to witness
Roe, as demonstrated by the court’s comment, “I think if we
didn’t have that very real hardship to the victim, I would allow
the defendant to change his mind and ask for a jury trial.”
Defendant suggests that there was in fact no hardship on the
witness and no great distress as she claimed, as shown by her
“unannounced” appearance in court on the second day of trial.
29
Defendant’s testimony was given on January 7, and Roe then
testified on rebuttal. Defense counsel moved for a mistrial when
he saw Roe in the audience, arguing that basing the opposition on
her inconvenience in having to come back another day was a
“material misrepresentation.” The prosecutor explained that she
told Roe to return only after she learned that defendant would be
testifying on January 7. The trial court disagreed with
defendant, explaining that it was part of the dynamic and
challenges of a trial that a witness who appeared to be finished
sometimes has to be called back.
The court also reminded counsel that in balancing the
interests , it had considered not only the inconvenience and
hardship to the witness, but also the People’s right to a speedy
trial and the prosecutor’s strategic decision to plot the case a
certain way for a court trial, as opposed to a jury. We discern no
abuse of discretion in the trial court’s weighing of the
circumstances.
V. Unauthorized sentence on counts 2, 3, and 4
Defendant contends that the terms imposed on counts 2, 3,
and 4 were unauthorized. Respondent agrees.
Defendant was convicted of soliciting, inducing, or
encouraging a minor to commit a felony in violation of section
653j, as alleged in counts 2, 3, and 4. The court chose count 2 as
the base term and sentenced defendant to the middle term of five
years, doubled to 10 years as a second strike. The trial court
imposed the same term as to each of counts 3 and 4 and then
stayed the terms pursuant to section 654.
The sentencing range for a violation of section 653j,
subdivision (a), is three, five, or seven years. However,
subdivision (b) provides: “In no case shall the court impose a
30
sentence pursuant to subdivision (a) which exceeds the maximum
penalty prescribed for the felony offense for which the minor was
solicited, induced, encouraged, or intimidated to commit.” In this
case, that felony offense was second degree burglary, as charged
in count 1. The maximum penalty for second degree burglary is
three years. (§§ 461, subd. (b), 1170, subd. (h).) Thus, the
maximum term authorized for each violation of section 653j was
three years, doubled to six years as a second strike.
The terms imposed here were thus unauthorized, and the
reviewing court may “‘correct a sentence that is not authorized by
law whenever the error comes to the attention of the court.’” (In
re Harris (1993) 5 Cal.4th 813, 842, disapproved on another point
in Shalabi v. City of Fontana (2021) 11 Cal.5th 842, 854, fn. 5.)
In addition, as the parties agree, it is unnecessary to remand for
resentencing because the court imposed the maximum sentence
possible. (People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15.) We
will thus modify the judgment to reflect the authorized maximum
sentence. (See People v. Lopez (2019) 42 Cal.App.5th 337, 342.)
DISPOSITION
The sentence is corrected by modifying the prison terms
imposed, as follows: In count 2, three years is imposed as the
base term, doubled to six years, as a second strike; as to each
counts 3 and 4, the middle term of three years, doubled to six
years, is imposed, with execution stayed pursuant to section 654.
As to count 1, the term remains the high term of three years,
doubled to six years as a second strike, and also stayed pursuant
to section 654. The superior court is directed to prepare a
corrected abstract of judgment reflecting these changes and
31
forward a certified copy to the Department of Corrections and
Rehabilitation.
As modified and in all other respects the judgment is
affirmed.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
HOFFSTADT, J.
32