Filed 4/21/22 P. v. Bearup CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080112
Plaintiff and Respondent,
(Super. Ct. No. BF172287A)
v.
DONALD BEARUP, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Brian M.
McNamara, Judge.
Kristin Traicoff, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L.
Christoffersen and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
* Before Levy, Acting P. J., Peña, J. and Meehan, J.
INTRODUCTION
The court convicted Donald Bearup (appellant) of assault by means of force likely
to produce great bodily injury (Pen. Code, § 245, subd. (a)(4))1 and found true
enhancements for personally inflicting great bodily injury (§ 12022.7, subd. (a)) and
having served a prior prison term (§ 667.5, subd. (b)). The court sentenced appellant to
eight years in state prison.
On appeal, appellant contends his jury trial waiver was not knowing, intelligent,
and voluntary. We conclude based on the totality of the circumstances that the waiver
was valid. Appellant also contends his prior prison term enhancement must be stricken in
light of recently enacted legislation. We agree and remand the matter to the trial court to
conduct “ ‘a full resentencing as to all counts.’ ” (People v. Buycks (2018) 5 Cal.5th 857,
893.)
In supplemental briefing, appellant claims the matter should be remanded for
resentencing in light of newly enacted Assembly Bill No. 518 (2021-2022 Reg. Sess.)
and Senate Bill No. 567 (2021-2022 Reg. Sess.). Because appellant must be fully
resentenced, we need not address these claims. On remand, appellant may raise these
claims in the trial court if he so chooses.
BACKGROUND
Appellant’s convictions are based on the assault of L.F. in front of a convenience
store. The evidence at trial showed appellant knocked L.F. to the ground and kicked him
several times rendering him unconscious. We need not discuss the facts underlying
appellant’s conviction in detail because they are not relevant to this appeal.
The Kern County District Attorney’s Office filed an information charging
appellant with assault by means of force likely to produce great bodily injury (§ 245,
subd. (a)(4); count 2) and battery causing serious bodily injury (§ 243, subd. (d);
1 All further statutory references are to the Penal Code unless otherwise indicated.
2.
count 1). As to each count, the People alleged an enhancement for the personal infliction
of great bodily injury. (§ 12022.7, subd. (a).) The People also alleged three prior prison
term enhancements. (§ 667.5, subd. (b).)
Appellant was arraigned on the information on June 18, 2018, and the matter was
set for jury trial. Criminal proceedings were suspended on November 28, 2018, when
appellant’s counsel declared a doubt as to appellant’s competency pursuant to section
1368. On January 7, 2019, the court found appellant not competent to stand trial based
on the report of a court-appointed mental health examiner. Criminal proceedings were
reinstated on April 9, 2019, when the court found appellant had regained competency.
Appellant’s counsel again declared a doubt as to appellant’s competency pursuant to
section 1368 on May 29, 2019, and the court ordered another psychological examination
of appellant. On July 2, 2019, the court found appellant competent to stand trial based on
the evaluation report.
At the August 13, 2019, trial readiness hearing, appellant’s counsel made the
following representation: “Judge, we are considering a court trial, and I have discussed it
with [appellant]. He is on board for that at this moment in order to get the trial
facilitated.” Although appellant was present in court, the court did not attempt to take a
waiver at that time, noting that the People also have a right to a jury trial. Instead, the
court stated it would “relay that message to the assigned D.A. to see if everybody will
agree to a court trial,” and continued the matter for trial to the following Monday.
After several short continuances, the parties returned for trial on August 28, 2019.
Before the matter was sent to a trial department, the following exchange occurred:
“THE COURT: And this will be a court trial?
“[APPELLANT’S COUNSEL]: I anticipate that.
“THE COURT: Would you be willing to let me go through that with
[appellant] at this point?
3.
“[APPELLANT’S COUNSEL]: Yes.
“THE COURT: All right. So, [appellant], your attorney has indicated that
you are willing to waive your right to a jury on this case, and you’d like to
have this case tried in front of just the judge. Is that correct?
“[APPELLANT]: Yes.
“THE COURT: All right. So you are willing to not have a jury and just
have a judge make the decision, correct?
“[APPELLANT]: Yes.”
After the matter was out for trial, the following exchange occurred in the trial
department:
“[APPELLANT’S COUNSEL]: … I just want to put one thing on the
record before we do anything.
“THE COURT: Okay.
“[APPELLANT’S COUNSEL]: We were in Department 1 this morning,
and [appellant] waived jury in regard to this particular case and considered
a court trial, and that’s why we don’t have a jury here because we waived
the jury. That’s all I wanted to put.
“THE COURT: That was—help me there. That was all on the record this
morning, I presume.
“[APPELLANT’S COUNSEL]: It was.
“THE COURT: We were informed it was a court trial. I’m assuming that
was handled. Thank you for that. That clarifies any record at this time.
And certainly if somebody has to review this, it would hopefully get all
that. [¶] [Deputy D.A.], any comment on that?
“[DEPUTY D.A.]: Yeah. I believe—to reiterate [appellant’s counsel’s]
statement, the Court did take a waiver from [appellant] for a waiver of the
jury trial. They did not take one from the People yet. The People would
waive jury trial at this time as well.
“THE COURT: That’s on the record. The People have waived as well.
We’re before a judge, no jury present. This is a court trial to be conducted
4.
just the same, obviously just without the jury. It will certainly proceed
quicker because there will be no voir dire, et cetera, and things like that.
Everything else is the same, same standard of proof, et cetera, et cetera.”
The matter then proceeded to court trial without further mention of appellant’s
jury trial waiver.
After the presentation of evidence, the court found appellant guilty of both
offenses, and found true the great bodily injury enhancement as to each offense.
However, the court found true only one of the prior prison term enhancements.
At sentencing, the court set the assault by means of force likely to produce great
bodily injury conviction (count 2) as the principal term and imposed the aggravated term
of four years. The court also imposed three years for the great bodily injury
enhancement, and one year for the prior prison term enhancement, for a total sentence of
eight years. The court imposed the aggravated term for the battery causing serious bodily
injury conviction (count 1) but stayed it pursuant to section 654.
DISCUSSION
I. The record affirmatively demonstrates appellant’s waiver of his right to a
jury trial was knowing, intelligent, and voluntary.
“Under the federal Constitution and our state Constitution, a defendant in a
criminal prosecution has a right to a jury trial. [Citations.] 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.’ ” (People v. Sivongxxay (2017) 3 Cal.5th 151,
166 (Sivongxxay).) “[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.)
5.
In Sivongxxay, our high court offered “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.” (Sivongxxay, supra, 3 Cal.5th at p. 169.) “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.” (Id. at pp. 169–170.)
The high court clarified, however, that its guidance “is not intended to limit trial
courts to a narrow or rigid colloquy.” (Sivongxxay, supra, 3 Cal.5th at p. 170.) “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.” (Id. at p. 167.) “[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. United States ex rel. McCann
(1942) 317 U.S. 269, 278.)
After reviewing the entire record, we conclude appellant’s waiver of the right to a
jury trial was knowing, intelligent, and voluntary. The trial court advised appellant that if
he waived his right to a jury trial, his trial would be in front of only a judge, and the judge
6.
would decide the question of guilt. While we recognize the trial court’s advisement fell
short of the Supreme Court’s guidance in Sivongxxay, it highlighted for appellant the
fundamental difference between a jury trial and a court trial. Considered in light of the
totality of the circumstances, this advisement supports our conclusion appellant was fully
aware of the nature of his right to a jury trial and the consequences of waiver.
The “assistance [of counsel] is undoubtedly a relevant consideration in finding a
jury trial waiver to be knowing and intelligent.” (People v. Daniels (2017) 3 Cal.5th 961,
1024 (conc. & dis. opn. of Corrigan, J.), citing Adams v. United States ex rel. McCann,
supra, 317 U.S. 269, 277.) The role of appellant’s counsel in the waiver process was
particularly significant here. Prior to waiving jury, appellant had been represented by the
same attorney for over a year and had appeared with him in court over a dozen times.
Two weeks before entering the waiver, counsel informed the court he and appellant “are
considering a court trial,” that he had “discussed it” with appellant, and that appellant was
“on board.” This demonstrates appellant and counsel had ample time to discuss the
possibility of waiving the right to a jury trial and the consequences of such a waiver.
Moreover, appellant’s interest in waiving jury to “get the trial facilitated” suggests
appellant was aware that waiving jury would result in a less cumbersome judicial process,
and lead to a faster resolution of his case.
Appellant contends this case is analogous to Daniels, where the trial court gave the
defendant a similar advisement of rights prior to accepting the defendant’s jury waiver.
(People v. Daniels, supra, 3 Cal.5th at pp. 986–989, 994 (lead opn. of Cuéllar, J.).)
However, the defendant in Daniels had waived his right to counsel and was self-
represented when he waived jury. (Id. at p. 996.) Daniels highlighted the importance of
counsel in this context: “A proper weighing of the totality of the circumstances forces us
to take into account Daniels’s lack of representation, even if it was his own choice to
exercise his right to self-representation. The sparseness of the colloquy’s substance in
this case is especially conspicuous given that Daniels was without the benefit of counsel
7.
when he proffered his waiver. Counsel plays a crucial part in transmitting information to
the client. Time and time again, our precedent has recognized as much, incorporating
within the totality of relevant circumstances not only the fact of representation by
counsel, but also record references to discussions between counsel and defendant.”
(Ibid.) Unlike the defendant in Daniels, appellant was represented by counsel, and the
record establishes appellant and counsel discussed waiving jury well in advance of the
actual waiver. Also unlike Daniels, where the judge first “broached the issue” of waiver,
appellant’s counsel was the first party to raise the jury waiver as a possibility. (Id. at
p. 993.)
A defendant’s “prior experience with the criminal justice system” is also relevant
to whether waiver was knowing and intelligent. (Sivongxxay, supra, 3 Cal.5th at p. 167.)
Prior to waiving jury in the instant matter, appellant entered no contest pleas in felony
matters in 2010, 2014, and 2015.2 During each plea colloquy, appellant acknowledged
and waived his right to a jury trial. Moreover, in each case appellant was represented by
counsel who was duty bound to advise appellant of his right to a jury trial. (See People v.
Pope (1979) 23 Cal.3d 412, 425 [observing a criminal defense attorney has a duty to
advise a client of his or her rights], overruled on another ground in People v. Berryman
(1993) 6 Cal.4th 1048, 1081, fn. 10.) Appellant has also suffered misdemeanor
2 The record supports our conclusion appellant suffered these convictions even
though the trial court found not true the section 667.5, subdivision (b) enhancements
based on appellant’s 2014 and 2015 convictions. At trial, the People submitted certified
records establishing appellant pled no contest in the 2014 and 2015 matters. The
probation report also states appellant was convicted of these offenses, and appellant did
not object to this aspect of the probation report at sentencing.
The trial court did not explain why it found the allegations not true, and it was
under no obligation to do so. While we do not speculate on the trial court’s reasoning,
we note the People’s burden was to prove beyond a reasonable doubt not only the truth of
the prior conviction, but that appellant served a “separate prison term.” (§ 667.5, subd.
(b).)
8.
convictions in over a dozen prior criminal matters dating back to 2007. This extensive
experience with the criminal justice system strongly supports the conclusion appellant
was aware of the nature of his right to a jury trial and the consequences of waiving it in
favor of a court trial.
Appellant contends his history of mental health issues weighs against finding his
jury waiver was knowing and intelligent. While we agree mental health history may be a
relevant consideration, it does not impact our conclusion here. The court found appellant
regained competency months before he waived jury, and nothing in the record suggests
appellant was no longer competent or that he was otherwise impacted by his mental
health issues at the time he entered the waiver.
The record affirmatively shows appellant understood the nature of his right to a
jury trial and the consequences of waiving that right. Appellant was represented by
counsel who was obligated to advise appellant of his jury trial right, and the record
establishes appellant discussed the waiver decision with counsel well in advance.
Considering the assistance appellant received from counsel in conjunction with the
advisement by the trial court and appellant’s extensive experience in the criminal justice
system, we conclude appellant’s jury trial waiver was knowing and intelligent.
II. The Prior Prison Term Enhancement Must Be Stricken in Light of Senate
Bill No. 136 and Senate Bill No. 483.
Appellant contends his prior prison term enhancement must be stricken in light of
Senate Bill No. 136 (2019-2020 Reg. Sess.). Effective January 1, 2020, Senate Bill
No. 136 amended section 667.5, subdivision (b) such that a one-year prior prison term
enhancement now only applies if a defendant served a prison term for a sexually violent
offense as defined in Welfare and Institutions Code section 6600, subdivision (b). Senate
Bill No. 136 is silent as to retroactivity, but appellant contends it applies retroactively to
judgments not final on appeal. (See In re Estrada (1965) 63 Cal.2d 740, 742.)
9.
While this appeal was pending, the Legislature enacted Senate Bill No. 483 (2021-
2022 Reg. Sess.), which extended the modifications brought about by Senate Bill No. 136
to all judgments, including judgments already final on appeal. Effective January 1, 2022,
Senate Bill No. 483 added section 1171.1, which states: “Any sentence enhancement that
was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5,
except for any enhancement imposed for a prior conviction for a sexually violent offense
… is legally invalid.” (§ 1171.1, subd. (a).)
Appellant’s prior prison term enhancement was based on a conviction for carrying
a concealed dirk or dagger (former § 12020, subd. (a)(4)), which is not a sexually violent
offense. Therefore, in light of Senate Bill No. 136 and Senate Bill No. 483, we remand
this matter for the trial court to strike the enhancement under section 667.5, subdivision
(b), and to resentence appellant.
III. On remand, appellant may address the applicability of Assembly Bill No. 518
and Senate Bill No. 567.
In supplemental briefing, appellant contends remand and resentencing are required
pursuant to two legislative enactments that became effective while this appeal was
pending: Assembly Bill No. 518 (2021-2022 Reg. Sess.), and Senate Bill No. 567 (2021-
2022 Reg. Sess.). Assembly Bill No. 518 amended section 654 to give trial courts
discretion not to impose the provision providing for the longest term of imprisonment.
(§ 654, subd. (a).) Senate Bill No. 567 amended section 1170 such that the trial court
may only impose the aggravated term where aggravating circumstances have been
stipulated to by the defendant or found true beyond a reasonable doubt at a jury or court
trial. (§ 1170, subd. (b)(1) & (2).)
Respondent concedes the enactments apply retroactively to this case, as it was not
final on appeal before these enactments became effective on January 1, 2022. (See In re
Estrada, supra, 63 Cal.2d 740.) Respondent contends, however, that remand is
10.
unnecessary because the result would not have been different even if the new laws had
been in effect at the time appellant was sentenced.
We need not address whether remand is appropriate based on these enactments
because we have already determined remand and resentencing are necessary. Our high
court explained in People v. Buycks, supra, 5 Cal.5th at p. 893 that “when part of a
sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all
counts is appropriate, so the trial court can exercise its sentencing discretion in light of
the changed circumstances.’ ” If appellant so chooses, he may raise his claims regarding
the applicability of Assembly Bill No. 518 and Senate Bill No. 567 in the trial court
during resentencing.
We take no position on how the trial court should exercise its sentencing
discretion when it resentences appellant.
DISPOSITION
Appellant’s sentence is vacated and this matter is remanded for resentencing. The
trial court shall strike the enhancement imposed under section 667.5, subdivision (b).
Following resentencing, the trial court shall forward a new abstract of judgment to the
appropriate authorities. In all other respects, appellant’s judgment is affirmed.
11.