People v. Zhang CA2/5

Filed 4/12/22 P. v. Zhang CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B309279
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA122121)
v.
JIAYI ZHANG,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mike Camacho, Judge. Affirmed as modified.
Castaneda Law, Sergio A. Castaneda and Mukund Arun for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews and Gary A.
Lieberman, Deputy Attorneys General, for Plaintiff and
Respondent.
I. INTRODUCTION
Defendant Jiayi Zhang appeals from a judgment of
conviction following a court trial, contending that the trial court
erred by denying his request to withdraw his prior waiver of his
right to a jury trial and that his counsel rendered ineffective
assistance. We affirm the judgment as modified.
II. BACKGROUND
A. Information
On February 24, 2020, the Los Angeles County District
Attorney charged defendant by information with assaulting a
peace officer (Pen. Code, § 245, subd. (c), count 1); hit and run
resulting in injury to a person (Veh. Code, § 20001, subd. (b)(1),
count 2); and hit and run resulting in property damage (Veh.
Code, § 20002, subd. (a), count 3).
B. Waiver of Jury Trial
On November 3, 2020, defendant appeared before the
master calendar court with his defense counsel and a Mandarin
language interpreter. Defense counsel advised the court that the
prosecution had made, and the defendant had rejected, a plea
offer, but that “both sides are willing to waive jury for a four year
lid; meaning, the most [defendant] could receive, if convicted by
the court, would be four years.” The prosecution agreed that
those were the terms of the agreement reached by the parties.
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The court and defendant then engaged in the following
colloquy:
“THE COURT: [Defendant,] I want you to listen to me
carefully; all right?
“Your case is ready to go to trial. You do have a right to a
jury trial on all the charges against you. What happens in a jury
trial is your lawyer and the District Attorney select 12 people
from the community to sit [as] jurors. The jurors listen to the
evidence. The jurors decide whether the charges have been
proved beyond a reasonable doubt. A jury can convict you of any
of the charges only if they find all the necessary elements that
make up any charge proven beyond a reasonable doubt. All 12
jurors have to agree. That means to be found guilty, all 12 jurors
have to agree that the charges have been proved beyond a
reasonable doubt. To be found not guilty, all 12 jurors have to be
convinced the charges have not been proved beyond a reasonable
doubt; that there is a reasonable doubt remaining. Either way it
goes, all 12 of the jurors have to agree, and they have to make
their decision based upon the evidence that is presented in court.
“Do you understand what a jury trial is?
“[ ] DEFENDANT: Yes.
“THE COURT: Have you discussed your right to a jury
trial and what a jury trial is with your lawyer, [defense counsel]?
“[ ] DEFENDANT: Yes.
“THE COURT: Now, there’s another trial that you can
have. That’s called a court trial. A court trial is where a judge
listens to the evidence all by himself or herself. The judge, alone,
decides what has been proved or not proved beyond a reasonable
doubt. If a judge decides that the charges or any charge have
been proved beyond a reasonable doubt, then the judge will find
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you guilty. If the judge determines that the charges or a charge
has not been proved beyond a reasonable doubt, then the judge
will find you not guilty. . . . So instead of having 12 jurors decide
the case and have to agree unanimously, it’s just a single person
listening to evidence and deciding what has or has not been
proved beyond a reasonable doubt.
“Do you understand what a court trial is?
“[ ] DEFENDANT: Yes.
“THE COURT: Have you discussed the court trial issue
with your lawyer?
“[ ] DEFENDANT: Yes.”
The court also informed defendant that he had a
constitutional right to a jury trial, and that he had to give up his
jury trial right before he could receive a court trial.
When asked whether he understood, defendant responded,
“Yes.”
The court then asked defendant whether he wished to
waive his jury trial right, and defendant responded, “Yes.”
Defense counsel and the prosecutor also joined in the
waiver.
The court then set the matter for a court trial on
November 9, 2020. It advised the prosecution to have its
witnesses ready on that date and advised both parties that the
court would “tell [the judge assigned to trial] no jurors because
we’ve had a jury trial waiver.”
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C. Request to Withdraw Waiver
On November 9, 2020, defendant and his counsel appeared
for trial.1 A Mandarin language interpreter was also present.
After both the prosecution and defense announced that they were
ready to proceed to trial, defense counsel stated: “I just wanted
to put on the record that [defendant] informed me that he has
now changed his mind about the jury trial waiver.”
The trial court responded, “Understood. And you learned of
that this morning?”
Defense counsel answered that he had.
The trial court then addressed defendant directly, “Your
attorney has mentioned to me just moments ago that you’ve had
a change of mind and you would now like to exercise your right to
have a jury resolve the trial matter rather than a judge alone
without a jury. [¶] Is this a correct statement?”
Defendant responded, “Correct.”
The trial court then stated that it would consider the
merits of defendant’s motion to withdraw his waiver of jury trial
and asked defense counsel whether he “wish[ed] to make any
comments on behalf of [his] client as to the knowing and
voluntary waiver of a right to have a jury?”
Defense counsel responded: “I can just convey to the court
that the option of a jury trial waiver was discussed with him and
exchanged for a cap on a sentence. I let him know about that. I
explained the pros and cons of that. [Defendant] told me on our
last court appearance that he wished to waive jury trial, and
1 A different judge than the one who presided at the waiver
hearing presided at the trial.
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today he’s told me he’s changed his mind. That’s all I can convey
to the court about that issue.”
The trial court then asked defendant: “What changed
between Thursday of last week and today?”
Defendant responded: “My position was made in a hurry. I
did not have a thorough understanding of the differences between
the bench trial and jury trial. After I learned that, I am more on
the side of using the jury trial.”
The trial court asked defense counsel, “[T]his discussion or
this issue of whether or not a right to have a jury should be
waived or not—was that a discussion that was limited solely to
Thursday [the day of defendant’s waiver], or were there previous
discussions about that?”
Defense counsel responded, “No, that was actually solely on
Thursday.”
Following some questions to the prosecutor, the trial court
ruled: “I have to be convinced by clear and convincing evidence
that you entered this waiver out of ignorance, mistake, or some
factor that overcame your exercise of free judgment. I’m not
hearing that from you. What I’m hearing from you is what I
would call buyer’s remorse and that you’ve had afterthoughts and
now decide[d] that you would rather have a jury than a bench
trial. The People have gone through the effort of subpoenaing
witnesses, and they’re ready to go today based on your
representation to the court last week. So I don’t find that there is
clear and convincing evidence that your waiver was somehow
improper; so I’m going to deny your request to withdraw your
waiver of your right to have a jury resolve this issue. We’re going
to proceed with trial, without a jury. So the motion is
respectfully denied.”
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D. Trial and Sentence
The court trial commenced that day. Following the
testimony of the witnesses, including defendant, the court found
defendant guilty beyond a reasonable doubt as to counts 1 and 3.
As to count 2, the court found defendant not guilty of felony hit
and run under Vehicle Code section 20001, subdivision (b)(1), but
guilty of the lesser included offense of misdemeanor hit and run
(id., § 20002, subd. (a)).
The trial court sentenced defendant to four years in
custody, consisting of the middle term for violation of Penal Code
section 245, subdivision (c) for count 1, and six months each for
counts 2 and 3 for violation of Vehicle Code section 20002,
subdivision (a), to be served concurrently. The court also imposed
certain fines and assessments. Defendant stipulated to an order
of restitution, which the court entered. Defendant timely
appealed.
III. DISCUSSION
A. Applicable Law
“Under the federal Constitution and our state Constitution,
a defendant in a criminal prosecution has a right to a jury trial.
(U.S. Const., 6th Amend.; Cal. Const., art. I, § 16; People v.
Weaver (2012) 53 Cal.4th 1056, 1071 . . . .) However, a ‘jury may
be waived in a criminal cause by the consent of both parties
expressed in open court by the defendant and the defendant’s
counsel.’ (Cal. Const., art. I, § 16.) Waiver must be ‘express[ed]
in words . . . and will not be implied from a defendant’s conduct.’
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(People v. Holmes (1960) 54 Cal.2d 442, 443–444 . . . .) Moreover,
‘a defendant’s waiver of the right to jury trial may not be
accepted by the court unless it is knowing and intelligent, that is,
“‘“made with a full awareness both of the nature of the right
being abandoned and the consequences of the decision to abandon
it,”’” as well as voluntary “‘“in the sense that it was the product of
a free and deliberate choice rather than intimidation, coercion, or
deception.”’”’ (People v. Collins (2001) 26 Cal.4th 297, 305 . . . ,
quoting Moran v. Burbine (1986) 475 U.S. 412 . . . .)” (People v.
Sivongxxay (2017) 3 Cal.5th 151, 166 (Sivongxxay).) Here,
defendant does not challenge the trial court’s acceptance of his
November 3, 2020, waiver of jury trial.2
2 Our Supreme Court has provided guidance to trial courts
“to help ensure that a defendant’s jury trial waiver is knowing
and intelligent”: “Going forward, we recommend that trial courts
advise a defendant of the basic mechanics of a jury trial in a
waiver colloquy, including but not necessarily limited to the facts
that (1) a jury is made up of 12 members of the community; (2) a
defendant through his or her counsel may participate in jury
selection; (3) all 12 jurors must unanimously agree in order to
render a verdict; and (4) if a defendant waives the right to a jury
trial, a judge alone will decide his or her guilt or innocence. We
also recommend that the trial judge take additional steps as
appropriate to ensure, on the record, that the defendant
comprehends what the jury trial right entails. A trial judge may
do so in any number of ways—among them, by asking whether
the defendant had an adequate opportunity to discuss the
decision with his or her attorney, by asking whether counsel
explained to the defendant the fundamental differences between
a jury trial and a bench trial, or by asking the defendant directly
if he or she understands or has any questions about the right
being waived.” (Sivongxxay, supra, 3 Cal.5th at pp. 169–170.)
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If a defendant knowingly and intelligently waives the right
to a jury trial, we review the trial court’s order denying a request
to withdraw the waiver for abuse of discretion. (People v.
Chambers (1972) 7 Cal.3d 666, 670–671.) “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.” (Id. at
pp. 670–671.)
“‘“To establish ineffective assistance of counsel, a defendant
must show that (1) counsel’s representation fell below an
objective standard of reasonableness under prevailing
professional norms, and (2) counsel’s deficient performance was
prejudicial, i.e., there is a reasonable probability that, but for
counsel’s failings, the result would have been more favorable to
the defendant. [Citation.] ‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’
(Strickland v. Washington (1984) 466 U.S. 668, 694 . . . .)”’
([People v. ]Riel [(2000) 22 Cal.4th 1153,] 1175.)” (People v. Rices
(2017) 4 Cal.5th 49, 80.)
The record demonstrates that the court here followed our
Supreme Court’s recommendation.
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B. Analysis
Defendant contends that the trial court abused its
discretion in denying his request to withdraw his waiver of his
jury trial right. We disagree.
Defendant did not make his motion to withdraw his waiver
until the morning of trial. Thus, the motion was not timely.
Defendant’s assertion that he advised his counsel that he wished
to withdraw his waiver on November 3, 2020, is contrary to the
record, which includes counsel’s statement that he learned of
defendant’s change of mind on the morning of trial.3 Further, the
prosecution had subpoenaed witnesses to testify at trial and we
infer from the court’s November 3, 2020, statement that it would
advise the trial judge “no jurors,” that the court had not
summoned jurors to report on the trial date. The trial court
therefore could have reasonably concluded that defendant’s
withdrawal would have inconvenienced witnesses and caused
undue delay.
We next consider defendant’s contention that his counsel
provided ineffective assistance during the hearing on his motion
to withdraw his waiver. According to defendant, “[d]espite
knowing that [defendant] had changed his mind the very day
after the waiver, [counsel], on November 9, 2020, the morning of
the trial, informed the court that [defendant] had informed
counsel that morning of his decision.” Defendant’s contention is
meritless. As we discuss above, the record does not support
defendant’s assertion that he advised his counsel that he wished
to withdraw his waiver any time before the morning of trial.
3 Defendant concedes that his assertion is “not on the
record.”
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Thus, defendant cannot demonstrate that his counsel’s
performance was objectively unreasonable.
Defendant also contends that counsel was ineffective
because he did not “demonstrate any advocacy on behalf of
[defendant].” Here, defense counsel advised the trial court that
he had just learned that defendant wished to withdraw his jury
trial waiver. He also provided an explanation for the reason for
the request to withdraw, namely, that defendant had “changed
his mind about the jury trial waiver.” And, counsel confirmed
that he had only discussed with defendant the jury trial waiver
on the day of the waiver. Defendant has not articulated what
more counsel could have done to advocate on behalf of
defendant’s request. He therefore cannot prevail on his
ineffective assistance of counsel claim on appeal.
C. Abstract of Judgment
The Attorney General asserts that the abstract of judgment
is incorrect, as it erroneously indicates that defendant’s four-year
sentence for violation of Penal Code section 245, subdivision (c) is
the upper term, when it should be the middle term. We agree
and will order that the abstract of judgment be corrected.
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IV. DISPOSITION
Upon remittitur, the trial court is ordered to correct the
abstract of judgment to reflect that the four-year sentence for
violation of Penal Code section 245, subdivision (c) is the middle
term. The clerk of the superior court is directed to prepare an
amended abstract of judgment reflecting this correction and to
forward a certified copy of the amended abstract of judgment to
the Department of Corrections and Rehabilitation. The judgment
is otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.
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