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People v. Sivongxxay

Supreme Court of California

June 19, 2017

THE PEOPLE, Plaintiff and Respondent,
VAENE SIVONGXXAY, Defendant and Appellant.

         Superior Court Fresno County No. F97590200 Gene M. Gomes Judge

          Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Douglas Ward, Deputy State Public Defender, for Defendant and Appellant.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Sean M. McCoy, Ryan B. McCarroll and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

          Cantil-Sakauye, C. J.

         Following a bench trial, defendant and appellant Vaene Sivongxxay was convicted of one count of first degree murder (Pen. Code, § 187), [1] 13 counts of robbery (§§ 211, 212.5), and two counts of attempted robbery (§§ 664, 211, 212.5). The trial court found true the special circumstance allegation that defendant committed the murder during the commission of a robbery. (§ 190.2, subd. (a)(17)(A).) At the conclusion of the penalty phase bench trial, the court imposed a verdict of death.

         This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) We affirm the judgment in its entirety.

         I. FACTS

         Defendant was tried jointly with codefendant Oday Mounsaveng. Both defendants were tried by a judge sitting without a jury.

         A. Guilt Phase

         1. Prosecution Evidence

         Defendant and Mounsaveng committed a series of robberies in Fresno between July and December 1996.

         a. Thanh Tin Jewelry Attempted Robbery

         On July 31, 1996, Mounsaveng walked into the Thanh Tin Jewelry store, asked to examine a gold chain, and then left. He returned with defendant about an hour later. The men looked around for a long time without buying anything. Liem Phu Huynh, the owner of the jewelry store, asked the men why they were taking so long. Mounsaveng and defendant claimed they were brothers and were waiting for their sister to arrive. Eventually, they left.

         When defendant and Mounsaveng returned to the store later that afternoon, Huynh was working in a back room, and his wife Phung Ngoc Ho was behind the sales counter. After asking to examine several items, Mounsaveng pulled a handgun out of his waistband, grabbed Ho by the collar, and pointed the gun at her. Huynh, who was watching from the back room, set off an alarm. Mounsaveng and defendant fled.

         b. First JMP Mini-Mart Robbery

         On the afternoon of August 16, 1996, Bobbie Her was working behind the counter at her parents' convenience store, JMP Mini-Mart. Mounsaveng entered and asked whether the store cashed checks. When Bobbie answered that it did, Mounsaveng left. He eventually returned with defendant, and the two men milled about the store. Bobbie's father Xeng Wang Her arrived and began restocking drinks in the store's refrigerator case. Defendant walked up to Xeng, pointed a handgun at him, and forced him to walk toward the cash register. Defendant then forced Xeng to lie down and kicked him in the back of the head. Meanwhile, Mounsaveng jumped over the counter and forced Bobbie to open the cash register. Mounsaveng and defendant took all of the money in the store, ripped a cordless phone off the wall, and then fled in a blue pickup truck.

         c. Phnom Penh Jewelry Robbery

         On October 10, 1996, defendant entered the Phnom Penh Jewelry store. Mounsaveng followed a few minutes later and asked the store's owner, Kee Meng Suy, to repair a Buddha pendant. Suy recognized Mounsaveng because he had brought in the same pendant for repair a few months before. Suy took the pendant to his workbench in the store's back room. While Suy was working, his wife Suntary Heng showed Mounsaveng some other pieces of jewelry. Suy finished repairing the pendant and handed it back to Mounsaveng, who said he was not satisfied with the work and asked Suy to do it again. Suy returned to his work bench. Heng then took the couple's two young children, who were at the store that day, into the back room to get some food.

         At that point, defendant and Mounsaveng forced their way into the back room, pointed guns at Suy's head, and told him to “stay still.” Defendant and Mounsaveng punched Suy, pushed him to the floor, and used tape and an extension cord to bind his limbs and cover his mouth and eyes. Both men then punched, kicked, and stomped Suy as Heng and the couple's two children watched. Mounsaveng demanded Suy's gun and the videotape from the store's security camera, but Heng explained he had no gun and the camera was broken. Eventually, Suy lost consciousness. As Mounsaveng and defendant cleared out the store's safe and the jewelry in its display cases, Heng activated a silent alarm. The two men fled in a light blue Honda.

         d. Second JMP Mini-Mart Robbery

         Mounsaveng and defendant returned to the JMP Mini-Mart on December 14, 1996. Xeng Wang Her was working in the store with his wife, Phayvane Boulome, and there were five or six customers inside. Upon entering the store, both Mounsaveng and defendant pulled out guns, told the customers to lie on the ground, and demanded that Xeng and Boulome open the cash register. Mounsaveng took money from the cash register and also picked up Xeng's gun, which was underneath the counter. Mounsaveng then forced Xeng into a back room, where Mounsaveng took cigarettes and change. After that, Mounsaveng grabbed Boulome and demanded that she open a second cash register, but she explained it was broken. Before leaving, Mounsaveng and defendant took money and jewelry from the customers at gunpoint. In the course of robbing the customers, defendant kicked an elderly woman in the mouth. One customer recalled seeing an unoccupied white car outside the store with its engine running.

         e. Sean Hong Jewelry Robbery and Murder

         In November 1996, defendant sold some rings and other items to the Sean Hong Jewelry store. He also left a Buddha pendant to be repaired.

         On December 19, 1996, three days after the second JMP Mini-Mart robbery, Mounsaveng and defendant paid a visit to the Sean Hong store. Seak Ang Hor, the wife of store owner Henry Song, was working behind the sales counter. Hor told defendant that his Buddha pendant was ready to be picked up, but he said he did not have the money to pay for it. Mounsaveng asked to see the pendant anyway. Song retrieved the pendant from a safe in the store's back room and came out to show it to Mounsaveng and defendant.

         After the men were finished looking at the pendant, Song started walking toward the back room. Mounsaveng pulled out a gun and screamed “give the money and gold.” Defendant also brandished a gun. Defendant and Mounsaveng forced Song and Hor into the back room; Mounsaveng then left and closed the door. Defendant demanded that Hor open the safe, but she refused. Song attempted to grab defendant's gun, and the two men engaged in a hand-to-hand struggle. Mounsaveng returned to the back room and beat Song on the head with his gun. Hor pressed a silent alarm button, prompting Mounsaveng to pull her out of the back room. Once in the front area of the store, Hor kicked the wall in an effort to alert the business owner next door. At some point, she heard Mounsaveng say “let's go.” Defendant forced Hor to give him cash from her purse. He also smashed a display case and took jewelry.

         After Mounsaveng and defendant left, Hor found her husband lying on the floor of the back room with blood coming out of his mouth. Song died within the hour. The cause of death was perforation of the heart and lungs from three gunshot wounds.

         Hor did not see either of the robbers shoot her husband, nor did she recall hearing the gunshots. However, the robbery was partially captured on the store's video camera. A Fresno Police Department detective testified that in reviewing a video of the incident, he could identify a moment when several gunshots were audible. At that moment, defendant and Song were not in the camera's frame, but Mounsaveng and Hor were. Mounsaveng was pointing his gun toward the location where defendant and Song were fighting. After the shots were fired, Mounsaveng moved out of the frame and toward the back room, where defendant and Song had been fighting. Ballistics evidence showed that all of the bullets were fired from the same gun. In the video, one of the defendants is heard to say, “shoot, shoot.”

         Defendant was arrested on February 12, 1997, and agreed to be interviewed by a Fresno Police Department detective. He initially denied involvement in the robberies. However, after the detective showed him stills from the Sean Hong Jewelry store's video camera, defendant admitted he took part in the robbery. At first, he claimed Mounsaveng was the one who shot Henry Song. Defendant described his struggle with Song and claimed that Song hit him on the head with a chair. But when the detective asked how the struggle ended, defendant confessed that he, not Mounsaveng, had shot Song. He apologized for lying at the outset of the interview and said he was sorry to Song's family for what he had done. Defendant also told the detective that Mounsaveng forced him to rob the Sean Hong Jewelry store and that he was so high on cocaine that day he could hardly think.

         2. Defense Evidence

         A toxicologist who screened defendant the day after his arrest testified that his blood tested positive for alcohol and cocaine. The manager of an apartment building located near the JMP Mini-Mart (Mini-Mart) testified that on December 14, 1996, the day of the second Mini-Mart robbery, he saw two teenagers running down the street, one of whom had a ponytail. Police later found a stolen white Toyota Camry in the parking lot of the apartment building. An officer who tested latent fingerprints from the Thanh Tin Jewelry store and the second Mini-Mart robbery testified that none of the prints matched defendant or Mounsaveng. A different officer testified that none of the witnesses to the second Mini-Mart robbery mentioned in their initial interviews that the robbers had tattoos. Finally, defense counsel introduced records indicating that defendant was in prison in Washington State from 1993 until February 1996, which countered Mounsaveng's allegation that defendant was among a group of men who threatened him in December 1995 and January 1996. In closing argument, defense counsel challenged the eyewitness identifications of his client, suggested that defendant perceived himself to be under imminent threat during his struggle with Song, and asserted that defendant may have been under the influence of drugs or coerced by Mounsaveng.

         Mounsaveng admitted his role in the robberies but claimed he acted under duress.

         3. Trial Court's Findings

         The trial court found both defendants guilty of first degree murder. The court also found “beyond a reasonable doubt that the special circumstance against each defendant ha[d] been proven, ” stating that “[t]here is no doubt that this murder was committed during the commission of the robbery” of the Sean Hong Jewelry store. In addition, the court found both defendants guilty of 13 counts of robbery and two counts of attempted robbery, and it found insufficient evidence to support either defendant's duress defense.

         B. Penalty Phase

         1. Aggravating Evidence

         a. Victim Impact Evidence

         Seak Ang Hor, Henry Song's widow, talked about her husband's life and described how his murder had affected her. Hor and Song had been married for about 30 years and had five children. The family emigrated to the United States in 1981 to escape conflict in Cambodia. At the time of the murder, Song had owned the Sean Hong Jewelry store for about four years. The family's entire life savings was invested in the business, and they had no insurance. Hor closed the jewelry store after her husband's murder.

         Two of Song's adult children, David and Lilly, also testified. David described cleaning up the store after the murder. He also testified that everyone in the family now had to work harder to support their mother and youngest brother. Lilly, who had renewed her driver's license on the day of the murder, said that “every time I use my license, it reminds me... of the pain, that he was killed.” She also had to drop out of college because she could not concentrate.

         b. Prior Criminal Activity

         The prosecution introduced evidence of defendant's prior criminal activity involving the use of force. (§ 190.3, factor (b).) On September 8, 1992, defendant and several accomplices broke into a home in Kennewick, Washington, and robbed the inhabitants at gunpoint. Defendant was convicted of first degree robbery and sentenced to 55 months in prison in Washington State. However, he escaped from custody on February 28, 1996.

         Defendant's girlfriend S. K., with whom defendant lived during the 1996 Fresno robberies, testified that he was violent and abusive.

         On September 5, 1996, Fresno police pulled over a vehicle in which defendant was a passenger. A handgun was found inside the car. The vehicle's driver testified that an Asian man carrying a gun had offered him money for a ride and that as the police pulled them over, the Asian man offered him more money to say that the gun was his. However, the driver could not say for sure whether that man was defendant.

         On January 17, 1997, Ty K., the brother of defendant's girlfriend, called the police because defendant was acting in a drunk and belligerent manner. Police arrested defendant for unauthorized possession of a firearm, possession of a controlled substance, and vandalism.

         When awaiting trial for the charged crimes, defendant was detained at the Fresno County Jail. On March 9, 1997, a correctional officer told defendant that he was being placed in isolation due to a fight with another inmate. Defendant became hostile and told the officer, “I see you all the time on the streets, I'll remember you.” On May 15, 1997, another correctional officer found among defendant's possessions a piece of metal she described as a “shank.”

         c. Prior Felony Convictions

         The prosecution introduced conviction records showing that defendant had 1992 and 1993 Oregon felony convictions for unauthorized use of a vehicle as well as a 1993 Washington State conviction for first degree armed robbery. (§ 190.3, factor (c).)

         2. Mitigating Evidence

         Defendant testified on his own behalf. He was born in Laos, but his family was forced to flee the country after the Communists came to power because his father and brother had fought alongside the United States Army. The family resettled in a refugee camp in Thailand. Defendant's family was poor, and he received no formal education. He was conscripted into the Thai army for five years. Aside from his stint in the army, defendant lived in the refugee camp until he came to the United States in 1987. When in prison for a prior offense, defendant referred himself to a chemical dependency program.

         In his penalty phase closing argument, defendant's counsel emphasized his client's difficult upbringing, his confession and expressions of remorse, and his drug addiction, as well as guilt phase testimony suggesting that defendant shot Song in the course of a struggle for defendant's gun.

         3. Sentencing

         Before announcing its sentencing decisions, the trial court indicated it had considered, in mitigation, both defendants' difficult backgrounds; defendant's drug addiction and his “request for help with chemical dependence”; his confession and expressions of remorse; and the evidence that he may have “perceived necessity and self-defense” in shooting Song due to the store owner's resistance.

         In aggravation, the trial court found that all of the alleged crimes of violence and the prior felony convictions had been proved beyond a reasonable doubt. The court observed that “defendant has shown a long pattern of violent crime against many, many victims.” The court cited defendant's criminal history; the violence he exhibited in the charged offenses, including the killing of Henry Song; and defendant's conduct in custody since his arrest.

         The trial court concluded that “[r]egarding Mr. Sivongxxay, as unpleasant as it is, I find the death sentence to be justified and appropriate.”


         In his appeal, defendant challenges the validity of his jury waiver and the trial court's consideration of certain evidence at the penalty phase. He also raises several challenges to the constitutionality of the death penalty.

         A. Guilt Phase

         As previously discussed, the guilt and penalty phases of defendant's trial proceeded before a court sitting without a jury. Defendant asserts that he did not enter a valid waiver of his right to a jury trial, in derogation of his rights under the state and federal Constitutions and state statutory law.

         1. Waiver of a Jury Trial

         Both defendant and Mounsaveng were present at the pretrial waiver hearing and were represented by counsel. The colloquy proceeded as follows:

         “THE COURT: Okay. Oday Mounsaveng and Vaene Sivongxxay.

         “MS. DETJEN: Jennifer Detjen, appearing for the People.

         “MR. PETILLA: Rudy Petilla, for Mr. Sivongxxay.

         “MR. KINNEY: Ernest Kinney, present in court, for Tony Vong [an alias of Oday Mounsaveng].

         “THE COURT: This matter is currently set for trial. What do we have, the 11th?

         “MS. DETJEN: That's good.

         “THE COURT: January 11th. Status of the case?

         “MR. KINNEY: Your Honor, I believe we're ready to proceed on the 11th. I've talked with cocounsel and the DA, and for a variety of reasons - we're prepared to go. We're prepared to - waive a jury trial and have a judge trial in this death penalty case.

         “MR. PETILLA: That's correct, Your Honor, and I have, of course - would acknowledge that this particular court would still be hearing the case.

         “THE COURT: Yes, it's been assigned to me for all purposes. Ms. Detjen, People's position?

         “MS. DETJEN: People are ready to waive a jury trial in this case.

         “THE COURT: All right. And I think the record should show - since this is a capital case - that, and the record is void of any in-chambers' [sic] discussions on this. We haven't had any.

         “MS. DETJEN: That's correct.

         “MR. PETILLA: Yes.

         “MR. KINNEY: That's correct.

         “THE COURT: Mr. Mounsaveng, Mr. Sivongxxay, you each have a right to a trial, either by a jury of 12 people selected from this community, through a process that you would engage in with your attorneys, the district attorney and the Court, or a trial in front of a judge, acting alone without a jury. [¶] The burden of proof remains the same. The district attorney has the burden to go forth with evidence sufficient to prove your guilt beyond a reasonable doubt. Then, and only then, would we get to a penalty phase. [¶] In a court trial, I would hear the evidence. I, alone, would make the decision on whether that evidence was sufficient to prove your guilt beyond a reasonable doubt. [¶] In the event I made such a finding, as to either or both of you, we would then proceed to a penalty phase, where the district attorney would present aggravation evidence. Through your - you, through your attorney, would have a right to present mitigation evidence, and it would fall upon me to make the decision as to the appropriate punishment, which could result in a death penalty sentence. [¶] Do you give up your right to a jury trial and agree that this Court, alone, will make those decisions, Mr. Mounsaveng?


         “THE COURT: Mr. Sivongxxay?


         “THE COURT: Ms. Detjen?

         “MS. DETJEN: Yes, Your Honor, the People waive the jury trial.

         “THE COURT: All right. We'll show a jury waiver on all issues, confirm the matter for January the 11th. We'll notify the jury commissioner that they do not need to send out any summonses, and we will start with the pretrial matters on that day....”

         There was no further discussion of jury waiver throughout the remainder of the trial proceedings.

         Under the federal Constitution and our state Constitution, a defendant in a criminal prosecution has a right to a jury trial. (U.S. Const., amend. VI; Cal. Const., art. I, § 16; People v. Weaver (2012) 53 Cal.4th 1056, 1071 (Weaver).) 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.” (People v. Holmes (1960) 54 Cal.2d 442, 443-444 (Holmes).) 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 (Collins), quoting Moran v. Burbine (1986) 475 U.S. 412.) “[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.” (Adams v. U.S. ex rel. McCann (1942) 317 U.S. 269, 278 (Adams).)

         Defendant acknowledges that he expressly stated on the record that he gave up his right to a jury trial, and he makes no claim that his purported waiver was coerced or otherwise involuntary. Instead, he asserts that his decision to waive his jury trial right was not knowing and intelligent. Specifically, he contends that as a Laotian refugee with no formal education and limited command of the English language, he would not have understood what the right to trial by jury entailed unless the trial court or counsel explained it to him. Defendant points out that the trial court's waiver colloquy did not explain that a jury must be impartial, that its verdict must be unanimous, or that the trial court must declare a mistrial if the jury fails to reach a verdict. The trial court also did not ask any questions confirming that defendant understood how a jury works, or that defendant had discussed the jury waiver with his counsel.

         Our precedent has not mandated any specific method for determining whether a defendant has made a knowing and intelligent waiver of a jury trial in favor of a bench trial. We instead examine the totality of the circumstances. (See Adams, supra, 317 U.S. at p. 278; cf. People v. Marlow (2004) 34 Cal.4th 131, 148 [looking to the “totality of the circumstances” in ascertaining whether a defendant knowingly and intelligently waived his rights in entering a guilty plea]; People v. Howard (1992) 1 Cal.4th 1132, 1175 (Howard) [same].)

         Here, we conclude that defendant entered a knowing and intelligent jury waiver. Although defendant is a Laotian refugee with no formal education and limited English proficiency, he was represented by counsel and assisted by a translator throughout the trial. The defense initiated the request for a court trial. In response, the trial court advised defendant that he had a right to a jury trial, that a jury consists of 12 people from the community, that he would have the right to participate in the selection of the jury, and that waiver of the right to a jury would mean the judge alone would determine his guilt or innocence and any resulting punishment. After these advisements, defendant answered “Yes” when asked whether he wished to “give up [his] right to a jury trial and agree that this Court, alone, will make those decisions.” The trial court then observed that the waiver applied to “all issues” at trial.[1] Additionally, defendant had prior experience with the criminal justice system, having pleaded guilty to two prior offenses in Oregon and one in Washington State. In 1993, in connection with his guilty plea in Washington, he signed a waiver stating that he “fully underst[ood]” his right to a jury trial. (See Parke v. Raley (1992) 506 U.S. 20, 37 [“evidence of a defendant's prior experience with the criminal justice system [is] relevant to the question whether he knowingly waived constitutional rights”]); People v. Langdon (1959) 52 Cal.2d 425, 432 [observing, in ascertaining whether there had been a knowing and intelligent waiver of the jury trial right, that the defendant “had also been before the criminal courts on at least three previous occasions”]; State v. Rizzo (Conn. 2011) 31 A.3d 1094, 1112 (Rizzo) [considering a defendant's prior experience with the criminal justice system as relevant to whether the defendant entered a knowing and intelligent jury waiver]; People v. Bannister (Ill. 2008) 902 N.E.2d 571, 584 [same]; Poore v. State (Ind. 1997) 681 N.E.2d 204, 207 [same].) Viewed holistically, the circumstances surrounding defendant's jury waiver demonstrate that it was knowing and intelligent.

         Defendant points out that the trial court did not mention that a jury must be impartial, and must also be unanimous in order to render a verdict. But “[t]he United States Supreme Court has never held that a defendant, when waiving the right to a jury, constitutionally is entitled to be canvassed by the trial court, let alone to require a specifically formulated canvass” (Rizzo, supra, 31 A.3d at p. 1116; see also U.S. v. Cochran (9th Cir. 1985) 770 F.2d 850, 851 (Cochran)), [2] and we have never insisted that a jury waiver colloquy invariably must discuss juror impartiality, the unanimity requirement, or both for an ensuing waiver to be knowing and intelligent. (See People v. Tijerina (1969) 1 Cal.3d 41, 45-46 [finding a jury waiver knowing and intelligent even though the defendant was not advised of the unanimity requirement].) It is true that in many cases in which we have upheld a waiver of a jury trial, we have observed that the defendant had been expressly advised that unanimity among the 12 jurors is necessary to render a guilt or penalty verdict. (See People v.Cunningham (2015) 61 Cal.4th 609, 636; People v. Scott (1997) 15 Cal.4th 1188, 1208 (Scott); People v. Diaz (1992) 3 Cal.4th 495, 570 (Diaz); People v. Robertson (1989) 48 Cal.3d 18, 37, fn. 5 (Robertson).) But under the 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. (See Weaver, supra, 53 Cal.4th at pp. 1072-1074 [rejecting a defendant's argument that the failure to advise him of his right to participate in jury selection necessarily rendered his jury waiver invalid]; U.S. v. DeRobertis (7th Cir.1983) 715 F.2d 1174, 1186 [finding a knowing and intelligent jury waiver notwithstanding the trial court's failure to advise the defendant of the juror vote necessary to convict]; Rizzo, supra, 31 A.3d at p. 1118 [“this court and others have rejected claims that an otherwise valid waiver of the right to a jury is undermined by the trial court's failure to include a specific item of information in its canvass”].) With the circumstances presented here, we are not persuaded that the trial court's failure to mention these characteristics of a jury trial renders defendant's waiver constitutionally infirm.

         At the same time, we use this opportunity to emphasize the value of a robust oral colloquy in evincing a knowing, intelligent, and voluntary waiver of a jury trial. Although our case law has eschewed any rigid formula or particular form of words that a trial court must use in taking a jury waiver, we observe that many other courts have offered guidance regarding important components of the waiver colloquy. (See, e.g., U.S. v. Delgado (7th Cir. 1981) 635 F.2d 889, 890 [trial courts “should explain that a jury is composed of twelve members of the community, that the defendant may participate in the selection of jurors, and that the verdict of the jury is unanimous. The court should inform the defendant that if he waives a jury, the judge alone will decide guilt or innocence”]; U.S. v. Robertson (10th Cir. 1995) 45 F.3d 1423, 1432 [same]; Marone v. U.S. (2d Cir. 1993) 10 F.3d 65, 68 [same]; U.S. v. Martin (6th Cir. 1983) 704 F.2d 267, 274-275 [same]; State v. Blann (N.J. 2014) 90 A.3d 1253, 1253 [same]; State v. Redden (W.Va. 1997) 487 S.E.2d 318, 326 [adopting the same advisements and also suggesting that a trial court should “ascertain on the record whether improper pressure or inducements, or a confused mental state, have affected the defendant's decision to waive the right to a jury trial”]; U.S. v. Duarte-Higareda (9th Cir. 1997) 113 F.3d 1000, 1002 (Duarte-Higareda) [stating that the district court should advise a defendant of these factors and “question the defendant to ascertain whether the defendant understands the benefits and burdens of a jury trial and freely chooses to waive a jury”]; State v. Anderson (Wis. 2002) 638 N.W.2d 301, 310 [adopting similar advisements and also stating that a trial court must ensure that the defendant “made a deliberate choice, absent threats or promises, to proceed without a jury trial” and “had enough time to discuss this decision with his or her attorney”].)

         Consistent with these decisions, we offer 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. 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. Ultimately, a court must consider the defendant's individual circumstances and exercise judgment in deciding how best to ensure that a particular defendant who purports to waive a jury trial does so knowingly and intelligently.

         This guidance, of course, pertains only to waiver of a jury trial in favor of a bench trial. Furthermore, we emphasize that our guidance is not intended to limit trial courts to a narrow or rigid colloquy. We agree with the Connecticut Supreme Court that ultimately, a “ ‘defendant's rights are not protected only by adhering to a predetermined ritualistic form of making the record. Matters of reality, and not mere ritual, should be controlling.' ” (Rizzo, supra, 31 A.3d at p. 1120.) Accordingly, the guidance above is advisory. As reflected in our determination here that defendant entered a knowing and intelligent waiver of his right to a jury trial, a trial court's adaptation of or departure from the recommended colloquy in an individual case will not necessarily render an ensuing jury waiver invalid. (See U.S. v. Rodriguez (7th Cir. 1989) 888 F.2d 519, 527 [describing the advisements prescribed in U.S. v. Delgado, supra, 635 F.2d 889, as “called for as a matter of prudence, ” and observing that “[l]esser (even no) warnings do not call into question the sufficiency of the waiver so far as the Constitution is concerned”]; Cochran, supra, 770 F.2d at p. 851.) Reviewing courts must continue to consider all relevant circumstances in determining whether a jury trial waiver was knowing, intelligent, and voluntary.[3]

         2. Jury Waiver for the Special Circumstance Allegation

         Defendant also contends that he did not validly waive his right to a jury trial with respect to the special circumstance allegation. He observes that “the trial court made no mention of the special circumstance determination or the right to a jury trial thereon, ” and that defense counsel never stated on the record that he had discussed the special circumstance determination with his client. Defendant asserts that he therefore cannot be found to have entered a separate waiver of a jury trial for this allegation, as is required under People v. Memro (1985) 38 Cal.3d 658, 700-704 (Memro), ...

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