People v. Peterson S. CA2/6

Filed 5/25/22 P. v. Peterson S. CA2/6
(see dissenting opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B313492
(Super. Ct. No. 21PT-00309)
Plaintiff and Respondent, (San Luis Obispo County)

v.

PETERSON S.,

Defendant and Appellant.

Peterson S. appeals from an order recommitting him for
treatment to the Department of State Hospitals as a mentally
disordered offender (MDO). (Pen. Code, § 2962 et seq.)1 He was
diagnosed with schizophrenia. His commitment offense was
felony assault with a deadly weapon or instrument other than a
firearm. (§ 245, subd. (a)(1).)
Appellant’s sole contention is that his waiver of a jury trial
was invalid because the trial court failed to properly advise him

1 All statutory references are to the Penal Code.
of his right to a jury trial. Considering the totality of the
circumstances, we conclude that appellant knowingly and
intelligently waived his right to a jury trial. Accordingly, we
affirm.
Proceedings in Trial Court
The trial court’s jury trial advisement and appellant’s
waiver were as follows:
“THE COURT: [Counsel], have you had an
opportunity to speak with [appellant]?
“[Counsel]: I have, Your Honor.
“THE COURT: How would he like to have the matter set?
“[Counsel]: I’ve gone over my client’s rights in this regard,
he would ask that this matter be set for a court trial . . . .
“THE COURT: All right. . . . I know you [appellant] have
discussed this with your attorney. I want to make sure that you
know that on this petition you have the right to a jury trial where
12 people from the community . . . come in, they would hear the
evidence. The District Attorney’s office would have to present
evidence and prove beyond a reasonable doubt each of the
elements of the petition. But as you’ve discussed with your
attorney, you also can elect and choose to waive your right to a
jury and have a [c]ourt hear the matter. That would be a judge
trial. And your attorney has indicated that you want to waive
your right to a jury and have a judge hear your trial. Is that
correct, sir?
“[Appellant]: Yeah.
“THE COURT: All right. Then we will find a waiver of
jury and we will set the matter for a court trial.” He maintains
that the advisement was inadequate because “[t]he court did not
(i) explain to appellant that through counsel he may participate

2
in jury selection, (ii) explain that all jury members must
unanimously agree upon a verdict, (iii) explain that if appellant
waived the right to a jury trial the judge alone would decide the
issues, (iv) ask if appellant had consulted with his attorney, (v)
ask appellant whether counsel had explained the differences
between a jury and a bench trial, and (vi) ask whether appellant
understood the right he was waiving.”
Appellant argues, “While the record does include counsel’s
statement that he discussed the issue of a jury trial with
appellant, the record does not affirmatively show (because the
court failed to inquire) that they discussed the ‘basic mechanics’
of a jury trial, or the ‘fundamental differences’ between a court
trial and a jury trial before [appellant] made his jury waiver.
[Citations.] The court also did not ask appellant if he felt that
the conversation was sufficient and whether he understood
counsel’s advice. Thus, no inference can be drawn from counsel’s
representation to the court.”
The Sivongxxay Guidelines
Appellant’s claim of an inadequate jury trial advisement is
based on People v. Sivongxxay, (2017) 3 Cal.5th 151 (Sivongxxay).
There, our Supreme Court “offer[ed] 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.” (Id. at p. 169.) The court “recommend[ed]
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

3
the right to a jury trial, a judge alone will decide his or her guilt
or innocence.” (Ibid.) The Supreme Court “also recommend[ed]
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 Sivongxxay Guidelines Are Not Mandatory
A trial court’s failure to follow the Sivongxxay guidelines
does not necessarily result in the absence of a knowing and
intelligent waiver of a defendant’s jury trial right. The Supreme
Court stated: “[W]e emphasize that our 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.) “[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. . . .
Reviewing courts must continue to consider all relevant
circumstances in determining whether a jury trial waiver was
knowing, intelligent, and voluntary.” (Id. at p. 170.)
“[U]ltimately, a ‘“defendant’s rights are not protected only by
adhering to a predetermined ritualistic form of making the

4
record. Matters of reality, and not mere ritual, should be
controlling.”’” (Ibid.)
In Sivongxxay the defendant was “a Laotian refugee with
no formal education and limited command of the English
language . . . .” (Sivongxxay, supra, 3 Cal.5th at p. 166.) “[H]e
was represented by counsel and assisted by a translator
throughout the trial.” (Id. at p. 167.) After a court trial, he was
convicted of first degree murder. The trial court found true a
special circumstance allegation and imposed the death penalty.
The Supreme Court upheld the validity of the defendant’s jury
waiver even though “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.” (Id. at pp. 166-167.) “[T]he 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.’”2 (Id. at p. 167.) Despite

2 The verbatim advisement and waiver were as follows:
“‘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

5
the noncompliance with the Sivongxxay guidelines, the Supreme
Court concluded, “Viewed holistically, the circumstances
surrounding defendant’s jury waiver demonstrate that it was
knowing and intelligent.” (Id. at p. 168.)
Appellant Knowingly and Intelligently
Waived His Right to a Jury Trial
Considering the totality of the circumstances, we conclude
appellant knowingly and intelligently waived his right to a jury
trial. “The defense initiated the request for a court trial.”
(Sivongxxay, supra, 3 Cal.5th at p. 167.) Counsel said, “I’ve gone
over my client’s rights in this regard, he would ask that this
matter be set for a court trial . . . .” It is reasonable to interpret
counsel’s statement as meaning, “I’ve discussed with my client
his constitutional right to a jury trial, and he has decided to

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 DEFENDANT MOUNSAVENG: Yes.
“‘THE COURT: Mr. Sivongxxay?
“‘THE DEFENDANT SIVONGXXAY: Yes.’” (Sivongxxay,
supra, 3 Cal.5th at pp. 165-166.)

6
waive jury and have the matter tried by the court.” The trial
court so interpreted counsel’s statement. The court informed
appellant that he had a “right to a jury trial where 12 people
from the community . . . would hear the evidence. . . . But as
you’ve discussed with your attorney, you also can elect and
choose to waive your right to a jury and have a Court hear the
matter. That would be a judge trial.” The court asked, “[Y]our
attorney has indicated that you want to waive your right to a jury
and have a judge hear your trial. Is that correct, sir?” Appellant
answered in the affirmative. “The record reveals no hesitation by
[appellant] in entering the waiver, nor uncertainty or confusion
about its scope or consequences . . . .” (Sivongxxay, supra, 3
Cal.5th at p. 188.)
We reject appellant’s claim that, “[a]s literally understood,
the court was asking appellant to confirm his counsel’s statement
[that appellant wanted to waive his right to a jury trial], not
[asking him] to personally waive [jury] trial . . . .” Any
reasonable person in appellant’s position would have understood
that he was personally waiving his right to a jury trial. The trial
court was not, as appellant maintains, “‘merely a passive receiver
of an attempted waiver.’”
In contrast to the waiver here, in Sivongxxay there was no
evidence “that defendant had discussed the jury waiver with his
counsel.” (Sivongxxay, supra, 3 Cal.5th at p. 167.) It is arguable
that, in view of counsel’s representation that he had discussed
the jury waiver with appellant, evidence of an intelligent and
knowing waiver is stronger here than in Sivongxxay.
Counsel’s presence and participation in the jury waiver is
of crucial importance. “Counsel is presumed competent and
informed as to applicable constitutional and statutory law. . . .

7
Counsel . . . can be expected, where necessary or advisable, to
consult with the client about jury trial concerns. [Citation.]”
(People v. Barrett (2012) 54 Cal.4th 1081, 1105; see also
Conservatorship of John L. (2010) 48 Cal.4th 131, 151
[“Like all lawyers, the court-appointed attorney is obligated to
keep her client fully informed about the proceedings at hand,
[and] to advise the client of his rights”]; People v. Daniels (2017) 3
Cal.5th 961, 996 (Daniels) (lead opn. of Cuéllar, J.) [“Counsel
plays a crucial part in transmitting information to the client
[about waiver of the right to a jury trial]. 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”]; Id. at p. 999
[“Courts generally rely on counsel to transmit to defendants
critical information about whether to waive the jury trial right
and the consequences of waiving it”]; People v. Diaz (1992) 3
Cal.4th 495, 571 [jury waiver valid because, among other factors,
“defendant acknowledged that he had thoroughly discussed the
jury waiver with his attorney”].)
“Although the presence of counsel does not by itself mean
‘that the defendant's interests and rights are protected . . . the
fact of counsel being present and having advised the defendant is
a factor to be considered in determining the question of the need
for or sufficiency of any admonition given by the court.
[Citations.]’ . . . Indeed, it would be to blink at the reality
disclosed by this record to conclude other than that [appellant’s]
decision to have his fate determined by [the trial court], rather
than by a jury, was a tactical decision entered into by [appellant]
after consultation with and advice from experienced and capable

8
defense counsel.”3 (State v. Cobb (1999) 251 Conn. 285, 373; see
also People v. Doyle (2016) 19 Cal.App.5th 946, 953 [waiver of
jury trial valid because “defendant’s counsel advised the trial
court she had discussed defendant’s waiver of a jury trial with
him on two occasions” and “[t]here is nothing in the record to
support that defendant was confused as to the right to a jury trial
or that he did not knowingly waive that right”]; People v. Acosta
(1971) 18 Cal.App.3d 895, 902 [“We are not aware of any rule of
law that entitles a defendant who is represented by counsel and
who has discussed waiver of a jury trial with his counsel, as here,
to have the court advise him of the merits or the disadvantages of
a trial by jury, as against a court trial”].)
Appellant’s Schizophrenia
Appellant asserts that, in determining whether he made a
knowing and intelligent waiver of his right to a jury trial, we
should take into account his “history of mental illness.” But this
factor does not detract from our conclusion that appellant’s jury
waiver was knowing and intelligent. “A schizophrenic condition
does not render a defendant incapable of effectively waiving his
rights.” (People v. Watson (1977) 75 Cal.App.3d 384, 396-397
[despite evidence that defendant “had an I.Q. of 65 [and]
exhibited signs of chronic organic brain damage and
schizophrenia,” the “‘totality of circumstances’” supported finding
that he had made a knowing and intelligent waiver of his
rights].) The California Supreme Court found that a 13-year-old
minor had knowingly and intelligently waived his Miranda rights
(Miranda v. Arizona (1966) 384 U.S. 436) despite his “young age

3We take judicial notice that trial counsel was admitted to
the State Bar of California in 2010.

9
and low intelligence” and his diagnosis as a “paranoid
schizophrenic.” (People v. Lewis (2001) 26 Cal.4th 334, 384.)
No expert testimony was presented on whether appellant’s
mental illness impaired his ability to knowingly and intelligently
waive his right to a jury trial. In the absence of such expert
testimony, we cannot infer that his ability was impaired. “[A]n
inference [cannot] be based on mere possibility or flow from
suspicion, imagination, speculation, supposition, surmise,
conjecture or guesswork.” (Kidron v. Movie Acquisition Corp.
(1995) 40 Cal.App.4th 1571, 1581.) “It must logically flow from
other facts established in the action.” (People v. Austin (1994) 23
Cal.App.4th 1596, 1604, disapproved on another ground in People
v. Palmer (2001) 24 Cal.4th 856, 861, 867.)
People v. Blancett Is Distinguishable
In People v. Blancett (2017) 15 Cal.App.5th 1200 (Blancett),
we considered whether a prisoner had validly waived his right to
a jury trial in an MDO proceeding. We noted that in Sivongxxay,
supra, 3 Cal.5th at p. 169, our Supreme Court had “emphasized
‘the value of a robust oral colloquy’ in eliciting a knowing,
intelligent, and voluntary waiver of a jury trial.” (Blancett,
supra, at p. 1205.) In Blancett the colloquy between the MDO
defendant and the trial court was as follows:
“‘[Counsel]: Yes. We’d like to set it for court trial.
“‘The Court: All right. So, Mr. B., [counsel] says that you
are okay with having a judge decide your case and not a jury?
“‘[Blancett]: Yes, your honor.
“‘The Court: That’s okay with you?
“‘[Blancett]: Yes, your honor.
“‘The Court: All right.’” (Blancett, supra, at p. 1203.)

10
 We concluded that the MDO defendant in Blancett “did not
waive his right to a jury trial with full awareness of the nature of
the right being abandoned and the consequences of the decision
to abandon it.” (Blancett, supra, 15 Cal.App.5th at p. 1206.) We
explained: “The trial court did not inform Blancett that he had a
right to a jury trial, nor did the court explain the significant
attributes or mechanics of a jury trial. [Citation.] Neither did
the court inquire whether Blancett had sufficient opportunity to
discuss the decision with his attorney, whether his attorney
explained the differences between a bench trial and a jury trial,
or whether Blancett had any questions about the waiver.
[Citation.] In a barebones colloquy, the court asked only if
Blancett was ‘okay’ with a court trial instead of a jury trial.
[Citation.] . . . Indeed, the court appointed counsel moments
before Blancett entered his waiver and there is no record of
discussion between Blancett and his attorney prior to the waiver.
[¶] Moreover, this was Blancett’s initial MDO commitment and
the record does not suggest that Blancett was familiar with MDO
proceedings or that he was aware that he was entitled to a jury
trial.” (Ibid.) “In view of the trial court’s stark colloquy, the lack
of evidence that Blancett discussed his jury trial right and waiver
with counsel, Blancett’s inexperience with the criminal justice
system, and Blancett’s lack of familiarity with MDO proceedings,
we conclude that his waiver was not knowing and intelligent.”
(Id. at pp. 1206-1207.)
The present case is distinguishable from Blancett. Unlike
the trial court in Blancett, here the trial court expressly advised
appellant of his right to a jury trial. Appellant expressly waived
that right. In addition, appellant concedes that “the record does
include counsel’s statement that he discussed the issue of a jury

11
trial with appellant.” (See People v. Blackburn (2015) 61 Cal.4th
1113, 1124 [“counsel is presumed to know the defendant’s rights
and is obligated to advise the defendant accordingly”].) Finally, it
is reasonable to infer that, unlike Blancett, appellant was
familiar with MDO proceedings. Appellant was being
recommitted as an MDO.4 Blancett, in contrast, was being
initially committed.
People v. Jones Is Also Distinguishable
In People v. Jones (2018) 26 Cal.App.5th 420 (Jones), the
defendant appealed after her conviction of second degree murder
following a court trial. The waiver of her right to a jury trial was
as follows:
“‘[Prosecutor]: Ms. Jones, your attorney[] ha[s] indicated
that you wish to waive jury and have this case decided by Judge
Sahagun sitting alone. In order to do that, you . . . have to waive
your right to a jury trial. Ms. Jones, do you understand your
right to a jury trial?
“‘Defendant Jones: Yes, sir.
“‘[Prosecutor]: Do you agree to waive that right and have
Judge Sahagun, sitting alone, decide the case?

4Appellant acknowledges, “This was a recommitment
hearing . . . .” “[A]n MDO is committed for a one-year period and
thereafter has the right to be released unless the People prove
beyond a reasonable doubt that he or she should be recommitted
for another year.” (People v. McKee (2010) 47 Cal.4th 1172,
1202.) The record does not indicate whether, in the previous
MDO commitment proceedings, appellant invoked his right to a
court or jury trial. (§ 2966, subd. (b).)

12
 “‘Defendant Jones: Yes, sir.’” (Jones, supra, at p. 428.)
The appellate court concluded that Jones’s “waiver of her
right to a jury trial was not knowing, intelligent, and voluntary”
because “[t]he trial court’s two-question inquiry of Jones, as to
whether she ‘underst[ood] [her] right to a jury trial’ and whether
she agreed to waive that right and have the trial judge ‘sitting
alone, decide the case’ does not affirmatively show that Jones
understood the nature of the right to a jury trial she was
relinquishing.” (Jones, supra, 26 Cal.App.5th at p. 423.)
Moreover, “the record does not show whether Jones’s attorney
ever discussed with her the nature of a jury trial, including for
example, that the jury would be comprised of 12 of her peers from
the community. Further, the trial court did not specifically
advise Jones that she had a right to a jury trial, instead only
asking her, ‘[D]o you understand your right to a jury trial?’” (Id.
at p. 435.)
The appellate court continued: “Because the trial court did
not advise Jones as to the specific rights she would be giving up
or inquire if her attorney explained those rights to her, her bare
acknowledgment that she understood her right to a jury trial was
inadequate.” (Jones, supra, 26 Cal.App.5th at p. 436.) “Jones
had no experience with the criminal justice system. Neither the
information nor the probation report reveals a prior criminal
charge.” (Id. at p. 437.)
The present case is distinguishable from Jones. Here, the
trial court specifically advised appellant that he had a right to a
jury trial before “12 people from the community.” In contrast to
Jones, appellant’s counsel said he had discussed the issue of a
jury trial with his client, and appellant did not contradict counsel
on this point. Finally, while “Jones had no experience with the

13
criminal justice system,” appellant had been previously convicted
of felony assault with a deadly weapon or instrument (§ 245,
subd. (a)(1)) and had been previously committed as an MDO.5
(Jones, supra, 26 Cal.App.5th at p. 437.)
Conclusion
Our Supreme Court’s recommendation of an extended jury
advisement/waiver colloquy is to be applauded. (Sivongxxay,
supra, 3 Cal.5th at pp. 169-170.) But the recommendation is not
a straitjacket to be used in the pursuit of perfect justice. (See
Fleming, The Price of Perfect Justice (1974).) “‘“Matters of
reality . . . should be controlling.”’” (Sivongxxay, supra, 3 Cal.5th
at p. 170.) Matters of reality here confirm that appellant
knowingly and intelligently waived his right to a jury trial. (See
United States v. Ruiz (2002) 536 U.S. 622, 629 [“the law
ordinarily considers a waiver knowing, intelligent, and
sufficiently aware if the defendant fully understands the nature
of the right and how it would likely apply in general in the
circumstances—even though the defendant may not know
the specific detailed consequences of invoking it”].)
“[I]n various contexts in which [our Supreme Court has]
been called upon to ascertain whether a waiver of constitutional
rights was knowing and intelligent, [the court has] not focused
myopically on the waiver colloquy in isolation, but instead [has]
conducted a more comprehensive assessment of the totality of the
circumstances. [Citations.] . . . [H]ere the relevant circumstances
include not only the colloquy, but also . . . the fact that [appellant]
was represented by counsel.” (Sivongxxay, supra, 3 Cal.5th at p.

5 The record does not indicate whether appellant pleaded
guilty to the felony offense or was tried by the court or a jury.

14
173, fn. 8.) Additional relevant circumstances are that counsel
discussed the jury waiver with appellant, that appellant had been
previously convicted of a felony offense, and that appellant
should have been familiar with the MDO commitment procedure
because this was a recommitment, not an initial commitment.
We “uphold the validity of [the] jury waiver” because “‘“the record
affirmatively shows that [the waiver] is [knowing] and intelligent
under the totality of the circumstances.”’” (Daniels, supra, 3
Cal.5th at p. 991 (lead opn. of Cuéllar, J.).)
Disposition
The order recommitting appellant for treatment to the
Department of State Hospitals as an MDO is affirmed.
NOT TO BE PUBLISHED.

YEGAN, Acting P. J.

I concur:

PERREN, J.

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TANGEMAN, J., Dissenting:
I respectfully dissent. There has been no affirmative
showing of a knowing, intelligent, and voluntary waiver. The
majority acknowledges the framework established by our
Supreme Court in People v. Sivongxxay (2017) 3 Cal.5th 151
(Sivongxxay) but applies the pre-Sivongxxay framework to
presume a valid waiver where none is shown.
Our Supreme Court in Sivongxxay, supra, 3 Cal.5th at page
169, recommended “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.” (Ibid.)
Here, the trial court did not mention any of the benefits of a
jury. It provided only two of the four recommended Sivongxxay
advisements—that a jury is made of “12 people from the
community” and that the alternative to a jury trial “would be a
judge trial.” (Sivongxxay, supra, 3 Cal.5th at p. 169; see People v.
Jones (2018) 26 Cal.App.5th 420, 436 [that the trial court only
provided one Sivongxxay advisement (i.e, that the judge alone
will decide the defendant’s guilt or innocence) suggested that the
jury trial waiver advisement was inadequate].) The court
completely omitted the two advisements that are clearly the most
important from appellant’s perspective—that appellant’s lawyer
could participate in jury selection, and that, once selected, all 12
jurors would have to unanimously agree to render a verdict
recommitting him as an MDO. Of the four recommended

1
advisements, these are the two that provide the greatest
protection and give the most meaning to the constitutional jury
trial right—yet the majority ascribes no meaning to them at all.1
The colloquy here was also deficient for other reasons. The
Sivongxxay court did not limit its recommendations to the four
advisements. It also “emphasize[d] the value of a robust oral
colloquy in evincing a knowing, intelligent, and voluntary waiver
of a jury trial.” (Sivongxxay, supra, 3 Cal.5th at p. 169.) To that
end, the court “recommend[ed] 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.)
Here, the court asked no such questions to ensure that
appellant understood “what the jury trial right entails” or “the
fundamental differences between a jury trial and a bench trial.”
It made no inquiry about appellant’s understanding of his rights,
or whether he had an adequate opportunity to discuss his jury
trial right with his attorney. Instead, the record shows that the
court’s only inquiry to appellant was when the court asked him if

1 The majority nevertheless argues that the meager
advisement given here was somehow “stronger” than the
advisement given in Sivongxxay, where the trial court covered
three, not two, of the four recommended advisements. (Maj. opn.
ante, at p. 7.)

2
his attorney indicated that he wanted to waive his right to jury,
to which appellant said, “[yeah].” (See People v. Jones, supra, 26
Cal.App.5th at p. 436 [failure to inquire whether the defendant
understood the nature of her right to a jury trial, whether she
discussed her decision with her attorney, or whether she had any
questions showed that her “bare acknowledgement” in response
to two of the court’s questions was inadequate to ensure that she
understood the nature of her rights].) These additional inquiries
designed to ensure appellant’s understanding of his rights were
especially important under the circumstances. Appellant was
appearing via Zoom and was not present in the courtroom. He
suffered from schizophrenia and was exhibiting ongoing
symptoms including “thought disorganization.” He was refusing
treatment, and was not taking his recommended dosage of
medication.
The record provides zero evidence that appellant
understood the nature of his constitutional right to a jury trial.
Despite well-settled law to the contrary, the majority imposes on
appellant the obligation to prove that he did not understand the
meager advisement and waiver when it states that “[i]n the
absence of such expert testimony [that mental illness impaired
his ability to understand], we cannot infer that his ability was
impaired” (maj. opn. ante, at p. 10). And so it infers that
appellant’s ability to understand was unimpaired, while ignoring
expert witness testimony which directly rebuts that inference.2

2 At the court trial, a forensic psychologist testified that
appellant suffered from schizophrenia and that his condition was
not in remission. The psychologist testified that appellant
exhibited ongoing symptoms during an interview. Specifically,
the psychologist testified that during the interview, she observed

3
Without supporting evidence, it infers that appellant was capable
of understanding his constitutional right to jury and intelligently
waived that right (despite expert witness testimony to the
contrary); it infers that “defendant acknowledged that he had
thoroughly discussed the jury waiver with his attorney” (maj.
opn. ante, at p. 8); it infers that jury waiver resulted from “a
tactical decision entered into by [appellant] after consultation
with and advice from experienced and capable defense counsel”
(maj. opn. ante, at pp. 8-9); and it infers that “appellant was
familiar with MDO proceedings” (and presumably the jury trial
right attached thereto) (maj. opn. ante, at p. 12). It draws each of
these inferences against appellant, thereby shifting the burden to
appellant to prove otherwise.
The majority opinion is thus inconsistent with Sivongxxay
and its emphasis on promoting a “robust oral colloquy” when
ensuring a party understands their jury trial rights.
(Sivongxxay, supra, 3 Cal.5th at p. 169.) Our caselaw has upheld
waiver of a jury trial “only when the record affirmatively
demonstrates it was knowing and intelligent,” without placing
the burden on a party to show his waiver was not knowing or
intelligent. (People v. Daniels (2017) 3 Cal.5th 961, 991 (lead
opn. of Cuéllar, J.); accord, id. at p. 1018 (conc. & dis. opn. of
Corrigan, J.).)

appellant exhibiting “symptoms,” including “thought
disorganization,” “long pauses before answering questions,” and
appearing “distracted.” The psychologist “often had to repeat
questions.”

4
 This case is like People v. Blancett (2017) 15 Cal.App.5th
1200, in which we reversed an MDO commitment order on the
ground that Blancett’s jury trial waiver was not knowing and
intelligent. There, “[i]n a barebones colloquy, the court asked
only if Blancett was ‘okay’ with a court trial instead of a jury
trial.” (Id. at p. 1206.) The “trial court did not inform Blancett
that he had a right to a jury trial, nor did the court explain the
significant attributes or mechanics of a jury trial.” (Ibid.) The
trial court did not inquire whether he “had sufficient opportunity
to discuss the decision with his attorney, whether his attorney
explained the differences between a bench trial and a jury trial,
or whether Blancett had any questions about the waiver.” (Ibid.)3
Courts are charged with ensuring that a party has full
awareness of the significant attributes and mechanics of a jury
trial, and the consequences of waiving that right—including that
a party understands that they can participate in choosing jurors
and that there must be unanimity amongst the 12 jurors so
selected for a conviction. (Sivongxxay, supra, 3 Cal.5th at p. 166.)
If all that is required for a valid jury waiver is representation by
counsel, who states generally that they have “gone over [their]
client’s rights,” and a barebones presentation of the choice
between a “judge trial” and a trial by “12 people from the
community,” our Supreme Court’s advisements in Sivongxxay
mean very little. Here, the record does not “affirmatively show[]”
that appellant’s waiver was knowing, intelligent, and voluntary.

3 As in Blancett, supra, 15 Cal.App.5th 1200, nothing in the
record reveals that appellant had a criminal history in which he
gained familiarity with jury trial waivers. The record reflects
only a felony conviction and prior MDO commitment, with no
mention of jury trial(s) or jury waiver(s).

5
(People v. Blackburn (2015) 61 Cal.4th 1113, 1136; Sivongxxay,
supra, 3 Cal.5th at p. 170.)
NOT TO BE PUBLISHED.

TANGEMAN, J.

6
 Rita Coyne Federman, Judge

Superior Court County of San Luis Obispo

______________________________

Christian C. Buckley, 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, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, Nima Razfar, Deputy Attorney General, for
Plaintiff and Respondent.