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.
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
Cantil-Sakauye, C. J.
a bench trial, defendant and appellant Vaene Sivongxxay was
convicted of one count of first degree murder (Pen. Code,
§ 187),  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.
appeal is automatic. (Cal. Const., art. VI, § 11, subd.
(a); § 1239, subd. (b).) We affirm the judgment in its
was tried jointly with codefendant Oday Mounsaveng. Both
defendants were tried by a judge sitting without a jury.
and Mounsaveng committed a series of robberies in Fresno
between July and December 1996.
Thanh Tin Jewelry Attempted Robbery
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.
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.
First JMP Mini-Mart Robbery
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
Phnom Penh Jewelry Robbery
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.
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.
Second JMP Mini-Mart Robbery
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.
Hong Jewelry Robbery and Murder
November 1996, defendant sold some rings and other items to
the Sean Hong Jewelry store. He also left a Buddha pendant to
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.
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
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.
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.”
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.
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
admitted his role in the robberies but claimed he acted under
Trial Court's Findings
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
Victim Impact Evidence
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.
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
Prior Criminal Activity
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.
girlfriend S. K., with whom defendant lived during the 1996
Fresno robberies, testified that he was violent and abusive.
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.
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.
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
Prior Felony Convictions
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).)
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
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
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
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.
trial court concluded that “[r]egarding Mr. Sivongxxay,
as unpleasant as it is, I find the death sentence to be
justified and appropriate.”
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.
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.
Waiver of a Jury Trial
defendant and Mounsaveng were present at the pretrial waiver
hearing and were represented by counsel. The colloquy
proceeded as follows:
COURT: Okay. Oday Mounsaveng and Vaene Sivongxxay.
DETJEN: Jennifer Detjen, appearing for the People.
PETILLA: Rudy Petilla, for Mr. Sivongxxay.
KINNEY: Ernest Kinney, present in court, for Tony Vong [an
alias of Oday Mounsaveng].
COURT: This matter is currently set for trial. What do we
have, the 11th?
DETJEN: That's good.
COURT: January 11th. Status of the case?
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.
PETILLA: That's correct, Your Honor, and I have, of
course - would acknowledge that this particular court would
still be hearing the case.
COURT: Yes, it's been assigned to me for all purposes.
Ms. Detjen, People's position?
DETJEN: People are ready to waive a jury trial in this case.
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.
DETJEN: That's correct.
KINNEY: That's correct.
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?
DEFENDANT MOUNSAVENG: Yes.
COURT: Mr. Sivongxxay?
DEFENDANT SIVONGXXAY: Yes.
COURT: Ms. Detjen?
DETJEN: Yes, Your Honor, the People waive the jury trial.
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
was no further discussion of jury waiver throughout the
remainder of the trial proceedings.
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,
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.
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)
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. 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.
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)),  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.
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”].)
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.
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.
Waiver for the Special Circumstance Allegation
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), ...