People v. Alejandro CA3 ( 2024 )

Filed 10/4/24 P. v. Alejandro CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(El Dorado)
----
THE PEOPLE,
Plaintiff and Respondent, C099044
v. (Super. Ct. No. 22CR2226)
YAHIDA LEESETTE ALEJANDRO,
Defendant and Appellant.
After defendant Yahida Leesette Alejandro purported to waive her right to a jury
trial, the trial court found her guilty of robbery, attempted robbery, attempted carjacking,
and battery by gassing a peace officer. On appeal, defendant contends we should reverse
the judgment because the record does not affirmatively show that she validly waived her
right to a jury trial. The People agree, and we do too. We will reverse the judgment and
remand for further proceedings.
BACKGROUND
The People charged defendant with two counts of robbery, two counts of
attempted carjacking, and one count of battery by gassing a peace officer. The People
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also alleged aggravating circumstances. At a scheduling hearing, defendant purported to
waive her right to a jury trial in the following exchange:
“[PROSECUTOR]: And I would just ask the Court to take a personal waiver of
jury from the defendant at this time.
“THE COURT: I will.
“[PROSECUTOR]: Thank you.
“THE COURT: Do you understand that you have the right to a jury trial?
“THE DEFENDANT: Yes, but I do not want one.
“THE COURT: You do not want a jury trial?
“THE DEFENDANT: No. I’d rather just have you judge me.
“THE COURT: Okay. So you waive your right to a jury trial?
“THE DEFENDANT: I waive my rights.
“THE COURT: [Defense counsel], do you join in that waiver?
“[DEFENSE COUNSEL]: I do.
“THE COURT: All right. The Court will accept that. We’ll waive jury.”
At the ensuing court trial, the trial court found defendant not guilty of the robbery
charged in count 1, but guilty of the lesser included offense of attempted robbery; guilty
of the robbery charged in count 2; guilty of the attempted carjacking charged in count 3;
not guilty of the attempted carjacking charged in count 4; and guilty of the battery
charged in count 5. The trial court found one alleged aggravating circumstance true but
found the other not true.
The trial court sentenced defendant to the middle term of three years in prison on
the count 2 robbery, a consecutive eight months on the count 1 attempted robbery, a
consecutive 10 months on the count 3 attempted carjacking, and a consecutive one year
on the count 5 battery, for an aggregate sentence of five years six months in prison.
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DISCUSSION
Defendant contends we should reverse the judgment because the record does not
affirmatively show she validly waived her right to a jury trial. The People agree.
“Under the federal Constitution and our state Constitution, a defendant in a
criminal prosecution has a right to a jury trial.” (People v. Sivongxxay (2017) 3 Cal.5th
151, 166 (Sivongxxay); see U.S. Const., 6th Amend.; Cal. Const., art. I, § 16.) “ ‘[A]
defendant’s waiver of the right to jury trial may not be accepted by the court unless it is
knowing and intelligent, that is, “ ‘ “made with a full awareness both of the nature of the
right being abandoned and the consequences of the decision to abandon it,” ’ ” as well as
voluntary “ ‘ “in the sense that it was the product of a free and deliberate choice rather
than intimidation, coercion, or deception.” ’ ” ’ ” (Sivongxxay, at p. 166.) “ ‘[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.’ ” (Ibid.) Under this “totality
of the circumstances standard, the presence or absence of a reference in a colloquy to this
particular attribute of a jury trial, or to the impartiality requirement, is not necessarily
determinative of whether a waiver meets constitutional standards.” (Id. at p. 168.) The
record must affirmatively show the waiver was voluntary and intelligent. (People v.
Collins (2001) 26 Cal.4th 297, 308-310 & fn. 3 (Collins).)
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,” recommending “that trial courts
advise a defendant of the basic mechanics of a jury trial in a waiver colloquy, including
but not necessarily limited to the facts that (1) a jury is made up of 12 members of the
community; (2) a defendant through his or her counsel may participate in jury selection;
(3) all 12 jurors must unanimously agree in order to render a verdict; and (4) if a
defendant waives the right to a jury trial, a judge alone will decide his or her guilt or
innocence.” (Sivongxxay, supra, 3 Cal.5th at p. 169.) The Supreme Court also
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recommended “that the trial judge take additional steps as appropriate to ensure, on the
record, that the defendant comprehends what the jury trial right entails,” for example “by
asking whether the defendant had an adequate opportunity to discuss the decision with
his or her attorney, by asking whether counsel explained to the defendant the fundamental
differences between a jury trial and a bench trial, or by asking the defendant directly if he
or she understands or has any questions about the right being waived.” (Id. at pp. 169-
170.)
Here, as the parties note, the trial court did not probe defendant’s understanding of
the jury-trial right or employ any of the techniques recommended by the Supreme Court.
The People also note “that appellant does not have any prior convictions . . . so the record
reveals nothing about any prior advisements before entry of prior pleas.” (Fn. omitted.)
Nor does the record contain any writing documenting the rights defendant purported to
waive or her understanding of those rights. The only evidence is the brief exchange
between the trial court, defendant, and defense counsel, and we agree that is insufficient
to establish defendant’s “ ‘ “ ‘ “full awareness both of the nature of the right being
abandoned and the consequences of the decision to abandon it.” ’ ” ’ ” (Sivongxxay,
supra, 3 Cal.5th at p. 166.)
The acceptance of an invalid waiver of a defendant’s right to a jury trial is “a
‘structural defect in the proceedings’ requiring that the judgment of conviction be set
aside without the necessity of a determination of prejudice.” (Collins, supra, 26 Cal.4th
at p. 312.) Accordingly, we must reverse the judgment.
We agree with the parties that the People may retry defendant for the offenses for
which the trial court found her guilty. (See People v. Story (2009) 45 Cal.4th 1282,
1296-1297 [retrial permitted where evidence would have been sufficient to sustain a
guilty verdict].) But we agree with defendant that the People may not retry defendant for
robbery as charged in count 1, or attempted carjacking as charged in count 4, because the
trial court found defendant guilty of only attempted robbery on count 1, and it acquitted
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defendant on count 4. The People may try count 1 as attempted robbery. (See People v.
Anderson (2009) 47 Cal.4th 92, 103-105 [acquittal is a bar to another prosecution for the
offense charged, but not to the prosecution of the lesser included offense of which
defendant was convicted].) Because we will reverse the judgment, we do not address
defendant’s contention that the trial court failed to comply with Penal Code section 654 at
sentencing.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for further
proceedings consistent with this opinion.
/S/
MAURO, Acting P. J.
We concur:
/S/
KRAUSE, J.
/S/
MESIWALA, J.
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