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People v. Badue CA1/3

Court: California Court of Appeal
Date filed: 2022-11-15
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Filed 11/15/22 P. v. Badue CA1/3

                  NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

                                     FIRST APPELLATE DISTRICT

                                                DIVISION THREE


 THE PEOPLE,
             Plaintiff and Respondent,
                                                                        A162813
 v.
 STEVE BADUE,                                                           (San Mateo County
                                                                        Super. Ct. No. 20-SF-010783-A)
             Defendant and Appellant.


         Defendant Steve Badue appeals from a judgment entered after the trial
court found him guilty of a number of offenses related to public intoxication
and resisting peace officers.1 He contends he did not make a valid waiver of
his right to a jury trial. We shall affirm the judgment.
                     FACTUAL AND PROCEDURAL BACKGROUND
         The details of defendant’s offenses are not germane to the issue before
us on appeal. Suffice it to say that on September 20, 2020, while intoxicated
in public, defendant failed to comply with a police officer’s directions;
struggled against officers trying to take him into custody, causing one of




        In conjunction with this appeal, appellant filed two petitions for writ
         1

of habeas corpus, In re Steve Badue, A164311, and In re Steve Badue,
A164323. We have denied these petitions by separate orders filed this date.

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them to stumble, strike a light pole with her head, and suffer injuries; and
spat on an officer’s pants and boot.
      Defendant represented himself at trial, and he waived his right to a
jury trial and elected to be tried by the court. The trial court found him
guilty on February 16, 2021 of misdemeanor public intoxication (Pen. Code,
§ 647, subd. (f));2 felony delaying or resisting an officer (§ 148, subd. (a)(1));
misdemeanor battery on a peace officer (§ 243, subd. (b)); two counts of
resisting an executive officer in the performance of the officer’s duties (§ 69),
with a great bodily injury enhancement as to one count (§§ 1203 subd. (e)(3),
12022.7, subd. (a)); and resisting and causing serious bodily injury to a peace
officer (§ 148.10).
      The trial court declared a doubt as to defendant’s competency and
suspended criminal proceedings on March 10, 2021. (§ 1368.) It appointed a
psychologist and a psychiatrist to examine him. Both of them concluded
defendant was competent, and the court so found. The trial court sentenced
defendant to the low term of two years for violation of section 148.10, causing
serious injury to a peace officer, with the other terms either concurrent or
stayed.
                                  DISCUSSION
      Defendant contends his waiver of his right to a jury trial was not
knowing, voluntary, and intelligent. A criminal defendant has a right to trial
by jury under both the federal and state constitutions. (People v. Weaver
(2012) 53 Cal.4th 1056, 1071; U.S. Const., amend. VI; Cal. Const., art. I,
§ 16.) This right, however, may be waived by consent of both parties.
(Weaver, at p. 1071.) To be valid, a defendant’s waiver must be “ ‘knowing
and intelligent, that is, “ ‘ “made with a full awareness both of the nature of


      2   All statutory references are to the Penal Code.

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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, and deception.” ’ ” ’ ”
(Id. at pp. 1071–1072, quoting People v. Collins (2001) 26 Cal.4th 297, 305.)
Defendant contends these standards are not met here because the trial court
did not advise him of the mechanics of a jury trial, he did not have the advice
of counsel, and he was unable to grasp relevant facts and basic legal concepts,
as shown by his meritless motions and the competency evaluations. 3
      The entirely of the colloquy in which defendant waived his right to a
jury is as follows: “[The court]: Mr. Badue, you indicated that you wanted to
waive jury trial and have a court trial; is that correct? [¶] Mr. Badue: Yes,
Your Honor. [¶] The court: Okay. So you know you do have the right to
have a jury trial where 12 members of the public hear the evidence and rule
on it? Is that your understanding? [¶] Mr. Badue: Yes, Your Honor. [¶]
The court: And you wish to waive and give up your right to a jury trial? [¶]
Mr. Badue: You’re the judge and jury, Your Honor. You decide. [¶] The
court: You want me to hear the evidence and not a jury; is that correct? [¶]
Mr. Badue: Yes, Your Honor. You are a judge and jury. You will suffice, yes.
[¶] The court: Me as judge and jury? Thank you. [¶] And do the People
waive their right to a jury trial? [¶] [The prosecutor]: We do, Your Honor.”
(Block capitalization omitted.)
      Defendant contends this advisement was inadequate. Our high court
has made clear that there is no specific method to determine whether a
defendant has made a knowing and intelligent waiver of a jury trial, and that



      3Although defendant recites that his jury trial waiver was not
voluntary, he makes no effort to show it was based on intimidation, coercion,
or deception.

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in reviewing a waiver, we should look at the totality of the circumstances.
(People v. Sivongxxay (2017) 3 Cal.5th 151, 167 (Sivongxxay).) In Sivongxxay,
the trial court advised the defendant he had a right to a jury of 12 people,
that he could participate in their selection, and that in a bench trial, although
the burden of proof would remain the same, the judge alone would evaluate
the evidence and decide defendant’s guilt. (Id. at p. 165.) The defendant
argued this advisement was inadequate, pointing out that he was a Laotian
refugee with no formal education and a limited command of English. And, he
contended, he could not have understood what a jury trial entailed unless he
received more explanation, such as that the jury must be impartial, that its
verdict must be unanimous, or that the trial court must declare a mistrial if
there is no verdict. (Id. at pp. 166-167.) Our high court rejected this
argument, explaining that despite these facts, the defendant was represented
by counsel and assisted by a translator; that the defense initiated the request
for a court trial; that, after being advised, the defendant said he wanted to
give up his right to a jury trial; and that he had prior experience in the
criminal justice system, having pleaded guilty to two prior offenses and
having signed a waiver in connection with one of those pleas saying he fully
understood his right to a jury trial. (Id. at p. 167.) And, the court
emphasized, “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.” (Id. at p. 168.) As the court
explained, there is no requirement of “any rigid formula or particular form of
words that a trial court must use in taking a jury waiver.” (Id. at p. 169.)
      Nevertheless, the court emphasized “the value of a robust oral colloquy
in evincing” a valid waiver of a jury trial. (Sivongxxay, supra, 3 Cal.5th at
p. 169.) To this end, the court offered “general guidance” to ensure a jury



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trial waiver is knowing and intelligent and to assist in appellate review: it
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.) The court also recommended that trial courts
take additional steps to ensure the defendant understands what the right to
a jury trial entails, such as asking whether the defendant consulted with
counsel and received an adequate explanation, or by asking the defendant
directly if he or she understands the right or has any questions. (Id. at
pp. 169-170.) But, the court emphasized, this guidance is advisory and
departing from it will not necessarily render a jury waiver invalid. (Id. at
p. 170.)
      Very recently, our high court again emphasized “ ‘the value of a robust
oral colloquy,’ ” but found a colloquy that omitted some of the elements
mentioned in Sivongxxay to be adequate in the circumstances. (People v.
Morelos (2022) 13 Cal.5th 722, 753-754.) The trial court there told the
defendant he had an absolute constitutional right to a jury trial, which meant
“ ‘12 individuals to make the factual determination . . . as to your guilt,” and
that the defendant said “[t]hat’s been explained” and he repeatedly said he
understood the right he was giving up. (Id. at pp. 751-752, 754.) Moreover,
before the waiver hearing, there were discussions about jury selection and
voir dire. (Id. at p. 755.) Although the defendant was self-represented and
therefore lacked the advice of counsel, “ ‘a self-represented defendant may
validly waive a jury trial without the guiding hand of counsel,’ ” and the



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defendant showed some legal knowledge and had discussed waiving a jury
with his attorney during the pretrial period when he was represented. (Id. at
p. 756.) Although the defendant was not advised he could participate in jury
selection, that the jury must be unanimous, and that a judge alone would
decide his guilt and the appropriate penalty, the court concluded the waiver
was not constitutionally infirm in the totality of the circumstances. (Id. at
p. 759.)
      The jury waiver here could likewise have been more robust. The trial
court told defendant neither that he could participate in selecting a jury nor
that the jury would have to reach its decision unanimously. But it did tell
him he had a right to a jury, that the jury would consist of 12 members of the
public, which would hear the evidence and rule on it, and that if he waived
this right, the court would hear the evidence. When asked if he understood,
defendant replied in the affirmative, and he said twice that the court would
be the “judge and jury.”
      Although this discussion did not include all the elements mentioned in
Sivongxxay, supra, 3 Cal.5th at p. 169, the surrounding circumstances show
that the waiver was knowing and intelligent. It appears that defendant
himself initiated the jury trial waiver. And he was no stranger to the
criminal justice system, having suffered 20 prior convictions between 1992
and 2020. (Compare People v. Blancett (2017) 15 Cal.App.5th 1200, 1206 [in
“barebones colloquy,” mentally disordered offender (MDO) not told he had a
right to jury trial at initial MDO commitment hearing]; People v. Jones (2018)
26 Cal.App.5th 420, 436-437 [no indication defendant knew jury was
comprised of members of community, and defendant had no experience with
criminal justice system].) While the record does not affirmatively show what
previous advisements defendant may have received, his extensive criminal



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justice history, which includes both felony and misdemeanor convictions,
suggests he was familiar with the mechanics of a criminal prosecution.
      Defendant also points out that he represented himself at trial and that
he filed multiple motions betraying a lack of understanding of relevant facts
and legal concepts. For instance, he argued that protections against double
jeopardy barred enhancement allegations based on prior offenses, and he
characterized a hearing inaccurately as an arraignment. But his lack of
understanding of sophisticated legal concepts or the details of criminal
procedure is hardly surprising in a layperson, and it does not suggest he did
not understand the role of a jury. Indeed, whatever their legal merits, his
motions show he was able to carry out basic legal research.
      Defendant also points to the fact that the court later declared a doubt
as to his competence to stand trial and to statements in the psychological
evaluations, which were carried out after he waived his right to a jury trial.
But, to the extent these later events are relevant to our analysis, it is
noteworthy that defendant was evaluated by two mental health professionals
after the court questioned his competence, one reporting that defendant had
a good understanding of the legal process, and the other that he had an
accurate appraisal of the functions of courtroom participants and an
adequate understanding of court procedures.
      Based on the colloquy and the totality of the circumstances of this case,
we reject defendant’s contention that his waiver of his right to a jury trial
was not knowing, voluntary, and intelligent.
                                DISPOSITION
      The judgment is affirmed.




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                                TUCHER, P.J.


WE CONCUR:

FUJISAKI, J.
RODRÍGUEZ, J.




People v. Badue (A162813)




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