People v. Leyva

1

THE PEOPLE, Plaintiff and Respondent, v. JORGE ARMANDO LEYVA, Defendant and Appellant.

2d Crim. No. B320760

California Court of Appeals, Second District, Sixth Division

March 13, 2023

NOT TO BE PUBLISHED

Superior Court County, No. 2021005005 of Ventura Derek D Malan, Judge

Mi Kim, 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, Steven D. Matthews and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.

BALTODANO, J.

Jorge Armando Leyva appeals from the judgment after the trial court sentenced him to three years in state prison for arson of an inhabited structure. He contends: (1) his waiver of jury trial was invalid, and (2) the trial court erred in ordering restitution to the Oxnard Fire Department. Because the jury waiver here was invalid, we reverse.

FACTUAL AND PROCEDURAL HISTORY Leyva was charged with arson of an inhabited structure (the Oxnard homeless shelter) (Pen. Code, § 451, subd (b))^[1](count 1) and, for another incident, arson of property (§ 451, subd. (d)) (count 2). The court found Leyva incompetent to stand trial (§ 1370, subd. (a)(1)(B)). Five months later, based on evaluations of two doctors, the court found Leyva competent (§ 1370, subd. (a)(1)(A)).

Five months after the competency finding, defense counsel told the court, "I discussed this matter with Mr. Leyva and he's going to waive jury at this time." The court advised Leyva that "if you need to talk to [defense counsel], you can." No written waiver form was used. Instead, the following colloquy occurred:

"[Court]: All right. Mr. Leyva, you do have a right to a jury trial in this case. Are you willing to waive your right to a jury trial and instead of having your case decided by a jury of 12 individuals, you agree to have a judge decide and have a Court trial instead?

"[Leyva]: I'd rather have a judge.

"[Court]: All right. And so that's a yes, correct?

"[Leyva]: Yes.

"[Court]: You'd rather have a judge?

"[Leyva]: Yes.

"[Court]: And do you also understand that you have certain Sixth Amendment rights to confront and cross-examine witnesses where a jury would be the one determining credibility and weight of evidence, but instead, by waiving your right to a jury trial, that will be a judge making that decision? Do you understand that?

"[Leyva]: Yes.

"[Court]: All right. And you also understand if you were to have a jury trial, you'd have a Fifth Amendment right to remain silent and a jury would be told they couldn't hold that against you and they could not consider that in deliberating and weighing the evidence? You'd still have that same right, but it wouldn't be a jury; it would be a judge? Do you understand that?

"[Leyva]: Can I ask a question?

"[Defense counsel]: Why don't you ask me.

"[Court]: Ask [defense counsel], please.

"[Defense counsel]: Sorry, your Honor. Could the Court repeat its last question?

"[Court]: Sure. You understand that you'd have a Fifth Amendment right where a jury would be told they could not hold that against you and they couldn't consider that?

"[Leyva]: Yes, sir.

"[Court]: And you're giving up that right as far as having a jury consider that, but you'd still have a Fifth Amendment right; it would just be a judge. Do you understand that?

"[Leyva]: Yes, sir.

"[Court]: All right. I'll show that the defendant has knowingly, intelligently and understandingly waived his right to a jury trial and instead is electing a Court trial to have a judicial officer make those determinations."

The trial court found Leyva guilty of count 1 and not guilty of count 2. It sentenced Leyva to the low term of three years in state prison. Without objection, the court ordered Leyva to pay restitution of $921.38 to the Oxnard Fire Department.

DISCUSSION

Jury waiver

Leyva contends his waiver of jury trial was invalid. We agree.

The federal and state constitutions guarantee the right to trial by jury. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16.) "The denial of a defendant's constitutional right to a jury trial constitutes structural error that requires reversal regardless of the strength of the evidence supporting the conviction. [Citations.]" (People v. Jones (2018) 26 Cal.App.5th 420, 429.)

A waiver of jury trial 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," '" ' " and" 'voluntary"' "in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception." '"' [Citation.]" (People v. Sivongxxay (2017) 3 Cal.5th 151, 166 (Sivongxxay).) Trial judges need not follow a rigid formula or use any particular words to ensure that a jury waiver is knowing and intelligent. (Id. at pp. 169-170.)

"The voluntariness of a waiver is a question of law which appellate courts review de novo." (People v. Panizzon (1996) 13 Cal.4th 68, 80 [waiver of appeal]; People v. Morelos (2022) 13 Cal.5th 722, 735 [Faretta waiver].) A jury waiver is valid only" ' "if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances."' " (People v. Daniels (2017) 3 Cal.5th 961, 991 (lead opn. of Cuellar, J.) (Daniels).) "The burden is on the party claiming the existence of the waiver to prove it by evidence that does not leave the matter to speculation, and doubtful cases will be resolved against a waiver." (People v. Smith (2003) 110 Cal.App.4th 492, 500-501.)

In 2017, our Supreme Court provided guidance for jury waivers in criminal cases. "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." (Sivongxxay, supra, 3 Cal.5th at p. 169.)

The trial court failed to heed that guidance here. Only one of the four advisements was fully given, i.e., that a judge alone would decide the case. The court advised that a jury consists of "12 individuals" but "the record does not show whether [Leyva] understood that a jury is comprised of individuals from the community." (People v. Jones, supra, 26 Cal.App.5th at p. 423.)"' "[T]he 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."' [Citation.]" (Id. at p. 432.)

The court also did not advise Leyva of two significant rights listed in Sivongxxay: that he could participate in jury selection through his attorney, and that the jury verdict must be unanimous. Counsel's participation in jury selection is part of providing an effective defense. (People v. Locklar (1978) 84 Cal.App.3d 224, 229.) The defendant has a right to participate in jury selection by consulting with counsel. (See People v. Kocontes (2022) 86 Cal.App.5th 787, 873-875 [right to consult counsel during trial]; People v. Wall (2017) 3 Cal.5th 1048, 1059 [jury selection a" 'critical stage' " of trial, defendant has" 'constitutional right to be present' "].) And the right to a unanimous verdict is an essential element of the right to jury trial. (Ramos v. Louisiana (2020)___ U.S.___,___ [140 S.Ct. 1390, 1396-1397, 206 L.Ed.2d 583]; People v. Traugott (2010) 184 Cal.App.4th 492, 500.) While the failure to advise of either of these rights does not automatically invalidate a jury waiver, their absence combined with the lack of a "robust oral colloquy" (Sivongxxay, supra, 3 Cal.5th at p. 169) shows the waiver was not knowing and intelligent based on the totality of the circumstances.

Sivongxxay also recommended that trial courts take "additional steps," 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." (Sivongxxay, supra, 3 Cal.5th at pp. 169-170.) Defense counsel here advised the court that he "discussed this matter with Mr. Leyva," but the court did not inquire whether counsel explained the differences between a jury trial and a court trial, or whether Leyva understood. (Cf. People v. Weaver (2012) 53 Cal.4th 1056, 1070-1071 [in two-hour discussion, attorney "fully explained" difference between jury trial and court trial].) Leyva attempted to ask a question of the court but was told to ask his attorney. The record does not reflect that Leyva and his counsel took a break from the proceedings to discuss his question, much less that Leyva received an answer to his question. The court should have directed Leyva and his counsel to take a break from the proceedings to address Leyva's question.

A" 'defendant's prior experience with the criminal justice system' is . . . 'relevant to the question of whether he knowingly waived constitutional rights.'" (People v. Mosby (2004) 33 Cal.4th 353, 365.) At trial, and after Leyva had purportedly waived a jury trial, Leyva's criminal history summary ("rap sheet") and the court dockets from two previous felony cases were...