People v. Martinez CA5

Filed 6/21/22 P. v. Martinez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F082025
Plaintiff and Respondent,
(Tulare Super. Ct. No. VCF373622)
v.

ENRIQUE CISNEROS MARTINEZ, OPINION
Defendant and Appellant.

THE COURT *
APPEAL from a judgment of the Superior Court of Tulare County. Melinda
Myrle Reed, Judge.
C. Matthew Missakian, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and
Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

* Before Franson, Acting P. J., Meehan, J. and De Santos, J.
 INTRODUCTION
Appellant and defendant Enrique Cisneros Martinez was convicted after a court
trial of 18 counts involving the sexual molestation of a minor. On appeal, he contends he
did not knowingly and intelligently waive his constitutional right to a jury trial on the
charged offenses. He has not challenged the sufficiency of the evidence to support those
convictions. The People have conceded the error, that his waiver of his right to a jury
trial was not knowing and intelligent and agree the matter must be remanded for a new
trial.
After careful review of the record, we agree that the trial court did not properly
advise defendant of his constitutional right to a jury trial, defendant did not give a
knowing and intelligent waiver of this right, and the structural error is reversible per se.
We thus remand the matter for a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
On June 22, 2020, an information was filed in the Superior Court of Tulare County
charging defendant with committing the following offenses between September 1 and
December 1, 2018: counts 1 through 17, commission of lewd acts on a child, J.B., under
the age of 14 years, with each offense alleged to have been committed at specific times
and places (Pen. Code, § 288, subd. (a));1 and count 18, contact with a minor with the
intent to commit a sexual offense (ibid.). As to counts 1 through 8, it was further alleged
defendant engaged in substantial sexual contact with the victim (§ 1203.066,
subd. (a)(8)). Defendant pleaded not guilty and denied the special allegations.
Pretrial Hearings About Possible Plea Offer
On September 3, 2020, the court convened a status conference; defendant was not
present. The court stated it would approve a negotiated plea for a sentence of 15 years.
The prosecutor objected, and the court stated the plea would have to be to all the charges.

1 All further statutory citations are to the Penal Code unless otherwise indicated.

2.
The court directed the prosecutor to contact the victim and her family and advise them
about the possible plea, and also directed defense counsel to discuss it with defendant.
On September 4, 2020, the court convened another status hearing; defendant was
present with an interpreter. Defendant rejected the court’s plea offer of 15 years and
requested to set the matter for trial. The court advised defendant that it was a very good
offer since the prosecutor wanted 40 years. The prosecutor clarified that the maximum
possible sentence was 42 years. The court further advised defendant that if he turned
down the plea offer, he could not accept it later. The court asked defendant to think
about it and directed defense counsel to talk with him about it. Defendant agreed to think
it over. Defendant ultimately rejected the plea offer.
Initial Discussion About Possible Waiver of Jury Trial
On Monday, September 14, 2020, the court held the trial confirmation hearing and
stated trial was scheduled to start the next day. Defendant was not present.
Ms. Scoma, defendant’s attorney, stated she was still in trial in another courtroom.
The court noted that defendant had not waived time and asked about the time extensions
resulting from the COVID emergency orders. Ms. Scoma stated she would talk to
defendant about waiving time.
The following exchange occurred:

“[MS. SCOMA]: And I will also let the Court know I will be
speaking to [defendant] about possibly waiving a jury trial. The district
attorney offered a bench trial in this case. If we proceed next week,
hopefully that’s how we are proceeding, is a bench trial.

“THE COURT: That would be very much preferable for the
Court. [¶] Thank you, Ms. Wayt [referring to the prosecutor].”
The court and Ms. Scoma discussed the possible trial schedule:

“MS. SCOMA: I will try to speak to [defendant] before. Then
given my trial schedule, the fact that he’s Spanish speaking and I have to
coordinate the calls with the jail, it may be a few minutes. I need to speak
with him in the jury room Friday morning.

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 “THE COURT: Actually, if you can obtain a jury trial waiver, I
would rather do that sooner rather than later. If he is onboard —and the
People are, right, Ms. Wayt?

“MS. WAYT: I believe so. [¶] My concern, obviously, is the
victim to come to court. And a court trial to me seems like very similar to
essentially a slow plea, which is frustrating because it doesn’t solve any
issues in terms of having to have a teenager in the middle of COVID get on
an airplane with her family and come to court and be exposed. That’s my
concern. [¶] I will put on the record that I know that there was speculation
as to whether or not they would be under subpoena. They are under
subpoena. They will be brought to court should we commence with the
trial.

“THE COURT: Your concerns over the victim and over the
entire proceeding are valid, and it would appear to me that both sides would
benefit from a Court trial, given those types of concerns. Let’s have you
continue to meet and confer.

“MS. SCOMA: I don’t want to talk to him about it if the People
are going to back away from it.

“MS. WAYT: I’m not backing away from it.

“THE COURT: You have indicated you are willing to proceed
with a Court trial?

“MS. WAYT: Yes.

“THE COURT: All right. [¶] You need to pursue that.

“MS. SCOMA: I will.

“THE COURT: And Ms. Wayt’s concerns would be much more
minimal with a Court trial than a jury trial, just the exposure to people.

“MS. WAYT: The exposure, but also putting the victim
through it, which, I mean, it is what it is, but knowing the evidence in this
case—I’ll just leave it at that.” (Italics added.)
The court adjourned the hearing.

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The Court Finds Defendant Waived His Right to a Jury Trial
On Friday, September 18, 2020, the court convened a continued jury trial
conference. Defendant was present with an interpreter.
Ms. Scoma, defendant’s attorney, stated she was still in trial in another proceeding
until at least the following Monday or Tuesday. Ms. Scoma continued: “I’m not sure
how long it will take to get a verdict, but I believe—because my client has agreed to a
Court trial in this case, that if a verdict came in, we could simply pause, and I can run
over. I think we can start on [next] Wednesday.” (Italics added.)
The court found good cause to continue because Ms. Scoma was in another trial,
and there had also been an extension of the emergency COVID-19 orders. The court
asked Ms. Scoma if defendant agreed to waive time, and she said yes. The court asked
defendant if he would waive time, and defendant said yes. The prosecutor also agreed to
continue and said she would be ready to start on September 23 and would be filing
motions with the court.
The court stated: “We have the motions in limine that I’ll be ruling on. I
appreciate the waiver of jury from each of you, which I’ll take up in a minute, but we can
do that at the commencement of the trial.” (Italics added.)
The prosecutor stated she would move to have witnesses appear by Zoom because
of COVID-19. Ms. Scoma objected. The court directed the parties to meet and confer on
the matter, and stated that defendant had the right to confrontation, which was “the most
superior right of confrontation that I can imagine,” and it would not grant the
prosecutor’s motion unless defendant agreed.
The court returned to the matter of the jury trial:

“[THE COURT]: So, Mr. Martinez, you understand you have the
right to have a jury trial in this matter. [¶] Is that correct?

“THE DEFENDANT: Yes.

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 “THE COURT: And do you give up that right and agree to have
a Court trial?

“THE DEFENDANT: Yes.

“THE COURT: And Ms. Wayt [the prosecutor], the People do,
as well?

“MS. WAYT: Yes, your Honor.

“THE COURT: And Ms. Scoma [defense counsel], you consent
and concur in the waiver of jury?

“MS. SCOMA: Correct.

“THE COURT: Thank you, parties.” (Italics added.)
The record contains no further discussion of the issue.
Court Trial, Convictions, and Sentencing
On Thursday, September 24, 2020, the court convened the first day of defendant’s
“court trial,” addressed the motions in limine, and the prosecution introduced evidence in
its case-in-chief.2
On September 28, 2020, the court granted the People’s motion to conform
count 13 to proof, the matter was submitted, and the court found defendant guilty as
charged and the special allegations true.
On October 30, 2020, the court held the sentencing hearing. Defense counsel
noted the court had originally offered a plea agreement for 15 years and asked the court
to impose a sentence of 17 years.
The court denied defendant’s motion and sentenced him to an aggregate term of
26 years based on the midterm of six years for count 1; consecutive terms of two years
(one-third the midterm) for each of counts 2, 3, 5, 6, 7, 8, 11, 12, 13, and 17; concurrent

2 We need not address the trial evidence since defendant has not challenged the
sufficiency of the evidence.

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terms of six years for each of counts 4, 9, 10, 14, 15, and 16; and a concurrent term of
three years for count 18.
On November 10, 2020, defendant filed a timely notice of appeal.
DISCUSSION
In this appeal, defendant raises one issue—that he did not knowingly and
intelligently waive his right to a jury trial on the charges in the information, the error is
reversible per se, and his convictions must be reversed. Defendant has not challenged the
sufficiency of the evidence for retrial. The People have conceded the constitutional error,
and request remand for a new trial.
After reviewing the pretrial proceedings and the applicable legal standards, we are
compelled to find defendant did not knowingly and intelligently waive his constitutional
right to a jury trial, and the error is structural and reversible per se.
I. Knowing and Intelligent Waiver of the Constitutional Right to a Jury Trial
“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).)
“Waiver must be ‘express[ed] in words … and will not be implied from a
defendant’s conduct.’ [Citation.] 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.” ’ ” ’ [Citations.] ‘[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.’ ” (Sivongxxay, supra, 3 Cal.5th at p. 166.)

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 “[A] knowing and intelligent jury waiver requires an appreciation of the nature of
the jury trial right and the consequences of forgoing this right. [Citation.] There is no
additional constitutional requirement that a defendant be specifically advised of the
specific charges, enhancements, allegations, or other issues to which a general jury
waiver will apply.” (Sivongxxay, supra, 3 Cal.5th at p. 171.)
In Sivongxxay, the California Supreme Court acknowledged that while “case law
has eschewed any rigid formula or particular form of words that a trial court must use in
taking a jury waiver,” it emphasized “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; ibid.) Sivongxxay 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.” (Ibid.)

“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.)
Sivongxxay emphasized this guidance was advisory and “not intended to limit trial
courts to a narrow or rigid colloquy.” (Sivongxxay, supra, 3 Cal.5th at p. 170.) “[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. [Citations.] Reviewing courts

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must continue to consider all relevant circumstances in determining whether a jury trial
waiver was knowing, intelligent, and voluntary. (Ibid., fn. omitted.)
After issuing the decision in Sivongxxay, the California Supreme Court clarified
that it “continue[d] to eschew any rigid rubric for trial courts to follow in order to decide
whether to accept a defendant’s relinquishment of this right,” but also asserted “the trial
court is not merely a passive receiver of an attempted waiver.” (People v. Daniels (2017)
3 Cal.5th 961, 992–993 (lead opn. of Cuéllar, J.); id. at p. 993.) “We uphold the validity
of a jury waiver ‘ “if the record affirmatively shows that it is voluntary and intelligent
under the totality of the circumstances.” ’ [Citation.] We do not start with a presumption
of validity that may only be rebutted by signs of a defendant’s confusion or unwillingness
in entering a waiver. Instead, a reviewing court satisfies itself of a legitimate waiver only
when the record affirmatively demonstrates it was knowing and intelligent.” (Id. at
p. 991.)
“Under the federal Constitution, the right to trial by jury is recognized as
fundamental, and its denial is ‘structural error,’ compelling reversal of a judgment of
conviction without the necessity of a determination of prejudice. [Citations.] Similarly,
under the California Constitution, the right to jury trial is fundamental, and its denial is
considered a ‘structural defect in the proceedings,’ resulting in a ‘miscarriage of justice’
within the meaning of California Constitution, article VI, section 13, and requiring that
the judgment of conviction be set aside.” (People v. Collins (2001) 26 Cal.4th 297, 311.)
II. Application of Sivongxxay Guidelines
In Sivongxxay, the court applied the guideline it had set out and held the
defendant’s jury trial waiver in that case was knowing and intelligent:

“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

9.
 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. [Citations.] Viewed holistically, the
circumstances surrounding defendant’s jury waiver demonstrate that it was
knowing and intelligent.” (Sivongxxay, supra, 3 Cal.5th at pp. 167–168, fn.
omitted.)
Sivongxxay rejected the defendant’s argument that the waiver was deficient
because the trial court had not explained the jury had to be impartial and render a
unanimous verdict. “ ‘[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’ [citations], 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.”
(Sivongxxay, supra, 3 Cal.5th at pp. 168–169, fn. omitted.) Sivongxxay held that under
the totality of the circumstances, “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.” (Sivongxxay, supra, 3
Cal.5th at p. 168.)
In People v. Blancett (2017) 15 Cal.App.5th 1200 (Blancett), the court held that,
based on the guidelines in Sivongxxay, the record was “bereft of evidence” that the
defendant in a mentally disordered offender (MDO) recommitment hearing was
sufficiently advised of his right to a jury trial and that he knowingly and voluntarily
waived that right. (Blancett, at p. 1202.) Prior to the hearing, the court appointed
counsel to represent the defendant, counsel accepted the appointment, and immediately

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requested a court trial. (Id. at p. 1203.) The court then addressed the defendant and
advised him that his attorney “ ‘says that you are okay with having a judge decide your
case and not a jury?’ ” The defendant replied yes. The court asked the defendant,
“ ‘That’s okay with you?’ ” The defendant said yes. (Ibid.)
Blancett held the defendant “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. [Citation.] The trial court did not inform [the defendant] 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 [the defendant] 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 [he] had any
questions about the waiver. [Citation.] In a barebones colloquy, the court asked only if
[the defendant] was ‘okay’ with a court trial instead of a jury trial. [Citation.] Indeed,
the court appointed counsel moments before [the defendant] entered his waiver and there
is no record of discussion between [the defendant] and his attorney prior to the waiver.
[¶] Moreover, this was [the defendant’s] initial MDO commitment and the record does
not suggest that [he] was familiar with MDO proceedings or that he was aware that he
was entitled to a jury trial. Although he pleaded guilty to two counts of child molestation
two years prior to the MDO hearing, we have no record of the advisements he received
before entering that plea. On this record, we do not presume that [the defendant] was
legally sophisticated.” (Blancett, supra, 15 Cal.App.5th at p. 1206.)
In People v. Jones (2018) 26 Cal.App.5th 420 (Jones), the court also relied on
Sivongxxay’s guidelines and held the record did not affirmatively show the defendant’s
jury trial waiver was knowing and intelligent under the totality of the circumstances.
(Jones, at p. 437.) Prior to trial, the prosecutor took the waivers of the defendant and her
codefendant Lucero as follows:

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 “ ‘[Prosecutor]: Ms. Jones, Mr. Lucero, your attorneys have
indicated that you wish to waive jury and have this case decided by [the
court] sitting alone. In order to do that, you each 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 [the
court], sitting alone, decide the case?

“ ‘Defendant Jones: Yes, sir.

“ ‘[Prosecutor]: Mr. Lucero, do you also understand your right to a
jury trial?

“ ‘Defendant Lucero: Yeah.

“ ‘[Prosecutor]: Do you agree to waive that right and agree that [the
court], sitting alone, would make the decision on this case?

“ ‘Defendant Lucero: Yes.’ ” (Id. at p. 428.)
The attorneys for both the defendant and Lucero joined in the waiver. (Ibid.)
Jones noted that prior cases addressing the validity of jury trial waivers
“consistently concluded that the failure of a trial court to provide a specific advisement
does not mean there was not a knowing, intelligent, and voluntary waiver,” but that trial
courts in prior cases “inquired extensively of the defendants before accepting their jury
trial waivers, specifically advising them that they would be giving up the right to have
their case decided by 12 members of a jury drawn from the community or comprised of
citizens.” (Jones, supra, 26 Cal.App.5th at p. 430; id. at p. 431.)
Jones held the case’s “sparse record” did not affirmatively show that the
defendant’s waiver was voluntary and intelligent under the totality of the circumstances,
“[t]here is no showing from this record that [the defendant] understood the nature of the
right to a jury trial she was relinquishing,” and the defendant was only advised that the
court alone would decide whether she was guilty or innocent. (Jones, supra, 26
Cal.App.5th at p. 435; id. at p. 436.)

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 “The record shows that [the defendant] had some discussion with her
attorney before the waiver was taken in that it was her attorney who
indicated to the trial court that [the defendant] wanted to waive her right to
a jury trial. However, the record does not show whether [the defendant’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 [the
defendant] that she had a right to a jury trial, instead only asking her, ‘[D]o
you understand your right to a jury trial?’ She responded, ‘Yes, sir.’ The
only real advisement by the trial court was that, as a result of [the
defendant’s] waiver, the trial judge ‘sitting alone’ would ‘decide the case.’
[She] agreed, again responding, ‘Yes, sir.’ ” (Id. at p. 435.)
Jones held there was nothing in the record to show the defendant “was aware that
a jury is comprised of individuals drawn from the community. Moreover … [the
defendant] had no experience with the criminal justice system. Neither the information
nor the probation report reveals a prior criminal charge. [¶] Rather, this case is more
similar to Blancett, in which the trial court’s entire inquiry was whether the defendant
was ‘okay’ with having his case decided by a judge instead of a jury. [Citation.] The
additional statement by [the defendant] that she understood her right to a jury trial does
not change the fact that, as in Blancett, [the defendant] ‘did not waive [her] 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.’ ” (Jones, supra, 26 Cal.App.5th at p. 437)
Jones concluded the record did not affirmatively show the defendant’s jury waiver
was voluntary and intelligent under the totality of the circumstances. (Jones, supra, 26
Cal.App.5th at p. 437.) Jones rejected the defendant’s separate contention that there was
insufficient evidence to support her convictions, and held there was substantial evidence
to allow remand for retrial. (Id. at pp. 437–444.)
III. Analysis
Defendant relies on Sivongxxay, Blancett, and Jones, and argues the record of his
jury trial waiver is “about as scant as any record could be,” and the court failed to advise
him about the nature of a court trial and a jury trial, the differences between the two

13.
proceedings, or ask if he had any questions about “what he was waiving or agreeing to.”
While defendant and his attorney may have discussed the issue once, there is no evidence
about the length or specific content of their conversation, and the record “falls far short”
of affirmatively establishing defendant entered a knowing and intelligent waiver.
Sivongxxay emphasized that its guidelines as to whether a defendant’s waiver of
his right to a jury trial was knowing and intelligent were advisory and “not intended to
limit trial courts to a narrow or rigid colloquy.” (Sivongxxay, supra, 3 Cal.5th at p. 170.)
In this case, however, there is no evidence to affirmatively show that defendant’s jury
trial waiver was knowing and intelligent. First, the record shows that defendant wanted a
trial to challenge the charged offenses. He turned down a plea offer and stated his intent
to proceed with trial, even after the court explained that the prosecution’s evidence was
strong, and the plea offer for 15 years was far more favorable than the maximum possible
sentence of 42 years.
Second, there were several exchanges between the court and the parties during the
September 14, 2020, hearing, where the possibility of a court trial was first addressed.
Defendant was not present for this hearing, however, and the court directed defense
counsel to speak with defendant to determine if he was “onboard” for a court trial.
Defense counsel explained that she had to coordinate a jail call to defendant with an
interpreter or meet with him in the jury room before the next hearing. The record is
silent, however, as to whether or when that conversation occurred, the nature and context
of the conversation, and whether defense counsel fully explained defendant’s
constitutional right to a jury trial to him.
The entire matter should have been clarified at the September 18, 2020, hearing,
where the court prepared to take defendant’s waiver of his right to a jury trial, but the
court’s exchange with defendant about his constitutional right was as “sparse” as that
found wanting in Jones. (Jones, supra, 26 Cal.App.5th at pp. 435, 436.) Defendant did
not sign a written advisement and waiver, so the only evidence is from the hearing itself.

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 Defense counsel advised the court that defendant had “agreed to a Court trial in
this case,” but the court did not ask counsel about the nature and extent of that
conversation, and whether she advised defendant of his right to a jury trial and explained
the difference between a jury and a court trial. Instead, the court immediately asked
defendant if he understood he had “the right to have a jury trial in this matter,” and
defendant said yes. The court next asked defendant if he gave up “that right and agree to
have a Court trial,” and defendant again said yes. The court obtained the agreements
from the prosecutor and defense counsel to have a court trial, and that was the full extent
of the court’s advisement and defendant’s waiver.
While the court asked defendant if he knew he had the right to a jury trial and gave
up that right, the court did not “explain the significant attributes or mechanics of a jury
trial. [Citation.] Neither did the court inquire whether [the defendant] 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 [he] had any questions about
the waiver.” (Blancett, supra, 15 Cal.App.5th at p. 1206.) The court did not “inquire[]
extensively” of defendant to specifically advised him that he “would be giving up the
right to have [his] case decided by 12 members of a jury drawn from the community or
comprised of citizens.” (Jones, supra, 26 Cal.App.5th at p. 431; ibid.) There was “no
showing” that defendant “understood the nature of the right to a jury trial []he was
relinquishing,” or that the court alone would decide whether he was guilty or innocent.
(Id. at p. 436; ibid.) Also as in Jones, the record is completely silent as to whether or
when defense counsel discussed this issue prior to the September 18, 2020, hearing, and
if counsel discussed with him “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 [the defendant] that []he had a right to a jury trial, instead only
asking [him], ‘[D]o you understand your right to a jury trial?’ ” (Id. at p. 435.)

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 Also as in Jones, there is no evidence the defendant had prior experience with the
criminal justice system. The record in this case shows that defendant’s only prior
criminal experience was in 2016, when he was convicted of two misdemeanors for being
under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a));
and driving without a license (Veh. Code, § 12500, subd. (a)) and was placed on
probation. The record is silent as to how the two misdemeanor convictions occurred and
whether they resulted from pleas, jury trials, or court trials.
We agree with defendant’s arguments, and the People’s concession in this appeal,
that as in Jones and Blancett, there is no affirmative evidence to show defendant’s waiver
of his right to a jury trial was knowing and intelligent, and that he appreciated “the nature
of the jury trial right and the consequences of forgoing this right.” (Sivongxxay, supra,
3 Cal.5th at p. 171.)
In reaching this conclusion, we further note that defendant has not challenged the
sufficiency of the evidence in support of his convictions or disagreed with the People’s
request to remand this matter for retrial.3 As a result, we reverse defendant’s convictions
but remand the matter for retrial and further appropriate proceedings.
DISPOSITION
The judgment is reversed. The matter is remanded for a new trial.

3 Defendant did not challenge the sufficiency of the evidence in his opening brief.
As explained above, the People’s brief conceded the constitutional error but argued the
matter must be remanded for retrial since defendant did not challenge the sufficiency of
the evidence. Defendant did not file a reply brief.

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