Filed 8/31/17




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                               S095868
           v.                        )
                                     )
DAVID SCOTT DANIELS,                 )
                                     )                        Sacramento County
           Defendant and Appellant.  )                      Super. Ct. No. 99F10432
____________________________________)


        THE COURT.*
        On January 8, 2000, defendant David Scott Daniels pleaded guilty to 11
counts of robbery (Pen. Code, § 211; all undesignated statutory references are to
the Penal Code), one count of carjacking (§ 215, subd. (a)), and one count of
vehicle theft (Veh. Code, § 10851). He admitted enhancements for the personal
use of a firearm (former § 12022.53, subd. (b)) as to the robbery and carjacking
counts, and further admitted that he had suffered two prior strike convictions
within the meaning of the “Three Strikes Law” (§§ 667, subds. (b)–(i), 1170.12).
        On January 19, 2001, Daniels was convicted by court trial of the first
degree murder of LeWayne Carolina (§§ 187, 189); the second degree murder of
LaTanya McCoy (§ 187); deliberate and premeditated attempted murder of


*       Cantil-Sakauye, C. J., Werdegar, J., Chin, J., Corrigan, J., Liu, J., Cuéllar,
J., and Kruger, J.



                           SEE SEPARATE OPINIONS.
Tamarra Hillian (§§ 664, 187); attempted robbery (§§ 664, 211); first degree
robbery (§ 211); residential burglary (§ 459); and evading arrest causing serious
bodily injury (Veh. Code, § 2800.3). The court found true special-circumstance
allegations that the murder of LeWayne Carolina occurred while Daniels was
engaged in the commission of robbery and burglary (§ 190.2, subd. (a)(17)), and
found true a multiple-murder special-circumstance allegation (§ 190.2, subd.
(a)(3)). It also found true various allegations for personally discharging a firearm
causing great bodily injury (former § 12022.53, subd. (d)), personally using a
firearm (former § 12022.53, subd. (b)), and personally inflicting great bodily
injury (former § 12022.7, subd. (a)).
       On January 31, 2001, the court imposed the death penalty and an
indeterminate term of life without the possibility of parole for 45 years,
consecutive to an indeterminate sentence of 441 years to life, to be served
consecutively following a determinate term of 125 years. The court subsequently
heard and denied Daniels’s automatic application for a new trial and modification
of death sentence. This appeal is automatic. (§ 1239, subd. (b).)
       Based on the opinions that follow, the judgment of death is reversed
because Daniels’s waiver of his right to jury trial on penalty was invalid. The
sentence of death in connection with the conviction of second degree murder
(count 21) is vacated as unauthorized, and the superior court is directed to issue an
amended judgment as to this conviction reflecting the appropriate sentence of 15
years to life. The judgment in all other respects is affirmed, including the
judgment of guilt as to all counts tried, the true findings of special circumstances,
and all convictions entered by way of guilty plea. The case is remanded for
further proceedings not inconsistent with this opinion.
       The lead opinion of Justice Cuéllar, joined by Justice Werdegar and Justice
Liu, expresses the opinion of the entire court on all issues except part II.D

                                          2
(Knowing and Intelligent Waiver of the Right to Jury Trial). Justice Liu writes a
concurrence to the lead opinion, which Justice Cuéllar signs. Justice Corrigan
dissents from part II.D of the lead opinion in an opinion joined by Chief Justice
Cantil-Sakauye and Justice Chin. Justice Kruger issues an opinion concurring in
part with, and dissenting in part from, part II.D of the lead opinion.




                                          3
LEAD OPINION BY CUÉLLAR, J., CONCURRING AND DISSENTING IN
              THE JUDGMENT OF THE COURT

       The jury lies at the heart of California’s criminal justice system and its
capital sentencing scheme. Despite the costs and practical burdens associated with
juries, the federal Constitution requires safeguards “[t]o protect against
inappropriate incursions” on a defendant’s exercise or waiver of the fundamental
right to a trial by a jury of his or her peers. (People v. Collins (2001) 26 Cal.4th
297, 307 (Collins).) Our state Constitution proclaims that “[t]rial by jury is an
inviolate right and shall be secured to all.” (Cal. Const., art. I, § 16.) And
California statutes afford capital defendants the right to a jury trial not only with
respect to adjudication of guilt or innocence, but also with respect to
determinations regarding special circumstance allegations and the decision to
impose the death penalty. (See Pen. Code, § 190.4, subds. (a), (b); all further
unmarked statutory references are to the Penal Code.)
       A criminal defendant is permitted to waive his or her jury trial rights –– but
only if the record demonstrates the waivers are express, voluntary, knowing, and
intelligent. (Collins, supra, 26 Cal.4th at p. 305.) That proves to be a problem in
this case. We, the undersigned, cannot conclude that defendant David Scott
Daniels’s waivers of jury trial were knowing and intelligent, in compliance with
constitutional requirements. That this error results in unquantifiable prejudice is
the reason we would reverse Daniels’s guilt convictions, the true findings of
special circumstances, and the penalty of death. Our view on this issue, however,
does not today command a majority of the court. Thus, we concur in the court’s
reversal of the penalty of death, while we dissent from the judgment to affirm
Daniels’s trial convictions and special-circumstance findings.
       Because the court reverses the judgment of death, we need not address
Daniels’s claims challenging specific aspects of his trial relating to his death
sentence, or California’s death penalty scheme more generally. We analyze
Daniels’s remaining claims only to the extent they seek to attack his convictions or
the special-circumstance determinations. With the exception of Daniels’s claim
maintaining that his jury trial waiver was invalid, discussed in part II.D, the court
unanimously agrees with the reasoning and resolution of Daniels’s claims
examined below.

                                     I. FACTS
       A. Guilt Phase Evidence
       The People presented the following evidence during the guilt phase of trial.
Daniels did not present any guilt phase evidence or argument.

            1. Armed Robberies and Carjacking
       From November 26 through December 27, 1999, Daniels committed
several armed robberies of businesses in Sacramento. The robberies proceeded in
substantially the same fashion: Daniels would enter a bank or store, pull out a
firearm or insinuate that he had a firearm, and demand money from the cash
register. On one occasion, Daniels led a customer and a clerk to the back of the
store, took $25 from the customer’s wallet, and bound the customer’s and clerk’s
necks and faces with cable wire before taking $1,000 dollars from the store’s cash
register.




                                          2
       On January 1, 2000, Daniels approached Gabriel Tover and Lisa Lovado
outside a Blockbuster Video in Stockton, holding what looked to be a machine gun
or an Uzi. Daniels pointed his firearm at Tover and demanded the keys to a silver
1995 Chevrolet Camaro; Tover obliged. After also taking Lovado’s purse and
Tover’s wallet, Daniels got into the car and drove off.
       In connection with these and similar incidents, Daniels pleaded guilty on
January 8, 2001, to 11 counts of armed robbery with use of a firearm, one count of
carjacking with use of a firearm, and one count of vehicle theft. In addition,
Daniels admitted he had suffered two prior strike convictions within the meaning
of the Three Strikes Law (§§ 667, subds. (b)–(i), 1170.12).

           2. LeWayne Carolina Homicide
       Jennifer O’Neal and Daniels were dating and had known each other about
four years. At approximately 6:30 p.m. on December 28, 1999, Daniels picked up
O’Neal and O’Neal’s eight-year-old daughter in his car. O’Neal noticed that
Daniels had, under his clothing, a Tec-9 firearm tied around his neck with a
shoelace. Daniels told O’Neal he needed the firearm for protection, explaining
that he was “on the run” and not going back to prison.
       Around 8:00 p.m., Daniels, O’Neal, and O’Neal’s daughter went to the
Ramada Inn on Auburn Boulevard, where O’Neal rented a room. Daniels made a
phone call in the lobby, as well as some calls in the hotel room. Daniels smoked
three cocaine cigarettes between approximately 8:00 and 9:30 p.m. Daniels,
O’Neal, and O’Neal’s daughter left the hotel together by car.
       They picked up a woman named Marcie, then drove to Martina Daniels’s
house in South Sacramento where they picked up Martina and her friend Lamar.
Lamar recommended a place where Daniels could buy illegal drugs. Daniels
drove the car and its passengers to an apartment complex on Mack Road. He



                                         3
seemed “very high” and “very hyper.” His driving was “okay, a little fast, but he
was driving normally.” When they arrived at the Stonegate apartment complex,
Daniels indicated he would be right back, and both he and Lamar exited the car.
O’Neal described Daniels’s demeanor as “very aggressive” and observed that “he
was not in a normal state of mind. He was not rationally thinking.” Martina,
Marcie, O’Neal, and O’Neal’s daughter waited in the car.
       Around 9:00 p.m. that same evening, Tamarra Hillian arrived to visit Ray
Jedkins, a friend of hers from high school, at Jedkins’s apartment. Jedkins’s
cousin, LeWayne Carolina, was also at the apartment. As Hillian sat in the
apartment living room watching television, there was a knock at the door. Jedkins
answered the door and spoke with Daniels, who was standing outside, for “a little
while” before Jedkins let Daniels inside. Daniels and Jedkins walked into the
kitchen and chatted with Carolina before Jedkins returned to the living room. A
few minutes later, Daniels walked into the living room and demanded money
while pointing a large firearm in Jedkins’s direction. Jedkins handed Daniels a
wad of money from his pocket. Then, Hillian heard gunshots and covered her
face. Jedkins climbed out the living room window. After the gunshots stopped,
Daniels ran out of the apartment. Hillian never saw Daniels point the gun at her or
Carolina.
       After Daniels fled the apartment, Hillian tried to stand up, but her leg
crumpled and she fell to the floor. She had been shot in the hand and in the leg.
She crawled to the kitchen telephone and saw that Carolina had been fatally shot.
As Hillian attempted to dial for help, Jedkins returned to the apartment and called
911. Sacramento police officers later arrived at the Stonegate apartment complex
and collected nine-millimeter and .380 bullet casings from the scene. Forensic
pathologist Dr. Gregory Reiber, who performed the autopsy of Carolina, testified
that Carolina suffered a fatal gunshot wound to the head and a superficial graze

                                          4
wound on the left side of his back. No soot or gunpowder was found on
Carolina’s head, indicating that the fatal gunshot was fired from a distance greater
than 12 to 18 inches.
       About 10 minutes after the group had arrived at the apartment complex,
Lamar returned alone to the car. He appeared scared and looked as though he was
praying. Daniels returned to the car soon after, holding his left side and gasping
for air. Daniels told O’Neal, “I’ve been shot. That guy shot me.” Daniels drove
the car away from the apartment complex and back to Martina’s house, swerving
while appearing to nod off. At Martina’s house, O’Neal and the other adults
attempted to treat Daniels’s bullet wounds on his left arm and left side near his
back. Martina saw that Daniels had a gun, one she would identify in court as
similar to the nine-millimeter gun found on Daniels at his arrest.
       Martina drove Daniels, O’Neal, and O’Neal’s daughter back to the Ramada
Inn. In the hotel room, Daniels told O’Neal that there were three other men and a
woman in the Stonegate apartment. He said a man in the kitchen started shooting,
and Daniels had returned fire. Daniels told O’Neal he shot the woman, who had
been yelling, and also shot the man sitting on the couch. He said “he would not be
taken alive” by law enforcement. While relaying his account of events, Daniels
smoked a cocaine cigarette. Martina observed a smaller gun on the dresser, which
Daniels explained he got from the man who shot him in the apartment.

           3. LaTanya McCoy Homicide
       On December 30, 1999, local law enforcement authorities issued an arrest
warrant for Daniels for the murder of LeWayne Carolina. On the morning of
January 2, 2000, Sacramento Police Detective Michael Kaye was conducting
surveillance in front of Martina’s house. Around 6:00 a.m., Daniels drove a silver
Chevrolet Camaro down the street, making unusual maneuvers before he paused in



                                          5
front of the residence. When the Camaro pulled away, Kaye followed in pursuit.
Kaye broadcasted the Camaro’s direction of travel to responding patrol units.
         Officer Shaunda Davis of the Sacramento Police Department was on patrol,
positioned on a nearby road. She activated the patrol car’s overhead lights, as did
officers in another patrol car, in anticipation of a felony vehicle stop. Daniels
initially pulled over, but then drove off at a high speed before the officers could
position themselves for a vehicle stop. Fog limited visibility. Police dispatchers
were advised that Daniels’s car was traveling on Mack Road at speeds up to 100
miles per hour. Daniels’s car weaved in and out of traffic. After passing the
intersection of Mack Road and Franklin Boulevard, Daniels’s Camaro collided
with another car at a minimum of 80 miles per hour. The other car spun across the
embankment that divided the roadway and burst into flames. Davis unsuccessfully
attempted to remove the driver, LaTanya McCoy, from the burning car. The fire
killed McCoy and burned her entire body.
         The Camaro veered off the road and eventually stopped. Shortly thereafter,
several Sacramento City police officers arrived at the scene. Officer Brian Ellis
advised Daniels to put up his hands outside of the vehicle. Daniels raised his left
hand but claimed his right hand was stuck. As Sergeant Steven Weinrich reached
into the Camaro to extract Daniels, Daniels fired his Tec-9 firearm. Weinrich
returned fire and was shot as he retreated behind the car. One bullet was later
found lodged in Weinrich’s bulletproof vest, while another bullet entered his upper
thigh.

         B. Penalty Phase Evidence

             1. Prior Statements by Daniels
         The penalty trial commenced on January 23, 2001. The prosecution began
its case by introducing statements made by Daniels on January 19, 2000, in which



                                          6
he threatened officers while hospitalized in the surgical intensive care unit. The
prosecutor argued that these statements constituted an uncharged violation of
section 69 (obstructing or resisting an officer by means of threat or violence).
       Sacramento County Sheriff’s deputies testified regarding two confiscated
letters written by Daniels while in jail in April and June of 2000. In one six-page
letter addressed to a woman named Nikki, Daniels stated that he felt responsible
for McCoy’s death and wished that he had died instead of McCoy. He also wished
he had “killed every last one” of the police officers he shot. Daniels wrote he was
not afraid to die and preferred death to life in prison. He stated he knew he would
get caught and “that’s why [he] robbed every bank an [sic] store in sight.”
Included with an 11-page letter from Daniels to his aunt was a printout labeled
“Daniels Investigation Time Line,” which contained admissions and details of
crimes committed between November 16, 1999, and January 1, 2000. The listed
offenses included 6 bank robberies, 17 robberies, 2 carjackings, and a shootout
with the Turlock Police Department.

           2. Prior Convictions
       During the guilt phase, Daniels admitted to two prior felony convictions: a
January 1986 felony conviction for attempted first degree burglary (§§ 664, 459)
and a July 1991 felony robbery conviction (§ 212.5). Daniels understood that
those prior pleas could be relevant, admissible evidence for penalty purposes.
       At the penalty phase, the prosecution introduced certified copies of three
prior convictions: a March 1988 felony conviction for possession of a controlled
substance (Health & Saf. Code, § 11350); an October 1990 felony conviction for
sale of a controlled substance (Health & Saf. Code, § 11352); and a February 1998
felony conviction for second degree burglary (§ 459). Daniels acknowledged he
had seen copies of these prior convictions.



                                          7
           3. Uncharged Crimes
       The prosecution introduced evidence of several uncharged crimes that
occurred in December 1999. Specifically, the prosecution elicited a bank teller’s
testimony regarding Daniels’s armed robbery of the Washington Mutual Bank in
Stockton on December 11, 1999, and his departure from the bank with about
$6,000 in stolen cash. In addition, business proprietor Vorn Chan and his daughter
Junda Chan testified about an armed robbery of Lim’s Market in Stockton on
December 22, 1999, during which a man took money from the cash register and
Vorn’s personal effects before driving off in a Toyota pickup owned by Vorn’s
son-in-law. Neither Vorn nor Junda identified Daniels as the perpetrator of the
robbery, but Daniels indicated that he committed a crime at Lim’s Market in the
printout he had included in the letter to his aunt.
       Witnesses testified that on December 30, 1999, Daniels was driving with an
unidentified female on the J14 highway in Merced County. After driving off the
roadway at a high speed, he exited his car in a daze and appeared “really loopy”
and “spaced out.” Shantel Little stopped to help. After Daniels approached her
with a firearm, Little exited her white Camaro. Daniels and his female passenger
entered the Camaro and drove away.
       Deputy Sheriff Mark Goddard, who was advised by dispatch of the
carjacking, observed Daniels in the Camaro and pulled him over. But once
Goddard pulled in from behind, Daniels took off, weaving through traffic at
speeds up to 80 miles per hour. Officers from the Turlock Police Department
pursued the Camaro until Daniels collided with another car while driving 55 to 60
miles per hour. Daniels got out of the Camaro and fired approximately four to six
gunshot rounds at the officers. He then fled on foot while the injured female
passenger was arrested. Officers collected discharged shell casings from the scene
and later concluded that the casings had been fired from Daniels’s Tec-9 firearm.


                                           8
       Jose Campos testified that on the evening of December 30, 1999, Daniels
walked into the garage of Campos’s home in Turlock with a firearm and asked
Campos for his car keys. Campos retrieved his keys from within the house, gave
them to Daniels, and returned to his house. When Campos reentered the garage,
his car was gone.

           4. Statement of Apology
       Daniels declined to present evidence or deliver a closing argument during
the penalty phase trial. He did, however, offer a lengthy apology –– expressing
deep remorse and sadness –– to the Carolina and McCoy families. Daniels stated
that he had “no intention on doing anything” to Carolina. He spoke of being a
father to four boys, and apologized in particular to Carolina’s father. He
“accept[ed] some responsibility for that accident” that killed McCoy. The chance
to apologize to the families, he said, “means a lot to me, and I have to live with
this for the rest of my life.” He also noted that “it took a long time for me to really
prepare myself to say this” to the family members. The court would later identify
Daniels’s statement as potentially mitigating evidence, stating, “During the
penalty phase, Mr. Daniels addressed the families of the victims. At that time, Mr.
Daniels did express some remorse for his actions and took some responsibility for
the crimes. These facts may constitute a mitigating factor.”
                                 II. DISCUSSION
       A. Knowing and Intelligent Waiver of the Right to Counsel
       Daniels contends that the record does not reflect a valid waiver of the right
to counsel. To wit, he argues that the court did not adequately advise him of the
complexities of a capital trial, made no meaningful inquiry into his understanding
of the charges and possible defenses, and ignored his comment that he did not
view self-representation as a disadvantage. We reject this claim.



                                          9
           1. Background
       At a court proceeding on April 28, 2000, Daniels asked to speak to the
judge. Judge Ransom told Daniels that he had to speak through his lawyer.
Daniels responded, “I’m not agreeing with nothing that’s going on. I’m not
agreeing with nothing that’s going on here — I’m not agreeing with nothing that’s
going on here.” The proceeding terminated without further discussion.
       In a letter dated December 7, 2000, Daniels advised the court, “I am
Respectfully Requesting that I be allowed to withdraw my ‘Not Guilty’ Plea and
enter a ‘Guilty Plea.’ I am also Requesting that I Be allowed to Represent myself,
my feretta [sic] Rights. I fully understand that I am charged with the Capitol [sic]
offense of Murder penal code Section 187 with the special circumstances.”
       About two weeks later, on December 20, 2000, Judge Ransom engaged
Daniels in a colloquy regarding the benefits of counsel and the drawbacks of self-
representation. In response to the court’s questioning, Daniels indicated that he
knew he had the right to counsel at all stages of the case, he understood that self-
representation is “generally not a wise choice” in criminal matters, and he would
face the death penalty if convicted. Further, Daniels acknowledged that the court
would not help him present his case or grant him special treatment, he was being
opposed by a trained prosecutor, he would be required to comply with all rules of
criminal procedure and evidence, he would forfeit a potential ineffective
assistance of counsel claim on appeal, he would be removed from the courtroom if
he were disruptive, and he had a right to hire his own attorney at any time but the
court would not delay proceedings to accommodate attorney preparation. In
response to the court’s questioning, Daniels informed the court that he had a high
school education and could read and write. He then stated, “I want to exercise my
Faretta” and reiterated his wish to represent himself. The court then expressed that
it was “satisfied he’s doing this knowingly and intelligently,” and granted the

                                         10
motion for self-representation. Later that day, Daniels signed a “Record of Faretta
Warnings” form, acknowledging that he had been personally advised of various
rights which had been discussed during the oral colloquy. Daniels rejected the
court’s offer to appoint advisory counsel.
       The case was subsequently assigned, for all purposes, to Judge Long. At
the outset of proceedings on January 5, 2001, Judge Long confirmed that Daniels
was representing himself and that Judge Ransom had advised him of the pitfalls of
self-representation. Daniels then acknowledged that he had received the amended
information in this case. Thereafter, Judge Long arraigned Daniels on the
amended information, reading aloud each of the 22 charges and the sentencing
enhancements. After reading each charge, the court asked, “Do you understand
the charges?” Daniels responded affirmatively as to each charge. While
arraigning Daniels on counts 12 and 21, the special-circumstance murder counts,
Judge Long informed him that these were serious felonies. The court explained
that, as to these charges, if Daniels were found guilty of these charges, the case
would proceed to a penalty phase where the People would seek the death penalty.
Daniels said he understood. After the court finished reading all the charges, the
following colloquy transpired:
       “THE COURT: Sir, did you understand all those charges?
       “MR. DANIELS: Yes, sir.
       “THE COURT: Are there any questions you need to ask me relating solely
to the nature of the charges that the People of the State of California have filed
against you?
       “MR. DANIELS: No, sir.”
       Thereafter, by asking a series of yes or no questions, Judge Long warned
Daniels about the dangers of self-representation. Despite the fact that the judge
informed Daniels that the prosecutor in this case was “one of the experts in this

                                          11
county in prosecuting” death penalty cases, Daniels expressed his desire to
continue self-representation. During this colloquy, the following exchange
occurred:
       “THE COURT: You understand that these are very, very serious matters
and that whatever your legal training is and I don’t know what it is, I’m going to
get into that, that you, sir, are placing yourself at a severe disadvantage? Do you
understand that?
       “MR. DANIELS: Yes, your Honor. I don’t look at it as a disadvantage.
       “THE COURT: You do not look at it as a disadvantage?
       “MR. DANIELS: No.
       “THE COURT: All right. . . .”
       Judge Long reminded Daniels that he would be held to the standards of a
lawyer, the court could not assist him in any way, the consequences of self-
representation were “enormous” in this case, it is “never wise” for an unskilled
person to represent himself, and that “it is said that he who represents himself is a
fool.” Judge Long asked Daniels if he understood that “it could get so bad in here
based upon your lack of skill and you may have skill, that if this were a
professional [sporting] event in the legal sense, it might be like a flag football
team going up against the Tennessee Titans?” Daniels responded, “I hear you.”
Daniels stated he understood that he would not be able to raise the issue of
counsel’s competence on appeal.
       As part of his analysis of Daniels’s decision to exercise his right to self-
representation, Judge Long made several inquiries about Daniels’s mental state
that day. Daniels responded that he was thinking clearly, he knew what he was
doing, he was taking Neurontin for nerve damage in his hand but the medication
was not interfering with his choice to represent himself, and that he was not under
the effect of any substance that would cloud his judgment. In response to the

                                          12
court’s questioning, Daniels stated that he was 33 years old, could read and write,
had graduated from high school, and had been employed “off and on” as a
mailroom clerk — a job which required reading and understanding documents.
He also stated that no threats had been made against him or his family members in
connection with his decision, nor had he been subject to any force or pressure
influencing him to represent himself. When the court asked Daniels to state, in his
own words, the potential penalty he would be facing if found guilty and the special
circumstances found true, Daniels replied, “I could be put to death.” This
exchange followed:
       “THE COURT: Are there other areas that you think I need to explore at
this time? Oh, and further, if you did want a lawyer, do you understand that I
would appoint a lawyer for you and give you what additional time you need to
prepare for this trial? Do you understand that?
       “MR. DANIELS: Yes, I do.
       “THE COURT: And even with that offer, you still want to represent
yourself and proceed to trial?
       “MR. DANIELS: Yes, your Honor.”
       Daniels again declined advisory counsel. Following a 15-minute recess for
Daniels to reflect on his decision, the court concluded its advisements and ruled on
Daniels’s Faretta motion:
       “THE COURT: All right. We are again on the record. Mr. Daniels, have
you had an opportunity to think about, you know, the colloquy we have gone
through relative to you representing yourself?
       “MR. DANIELS: Yes.
       “THE COURT: Now, let me ask you this: You have told me that you
understand the nature of all these charges and what could happen to you, right?
       “MR. DANIELS: Yes, I understand.

                                        13
       “THE COURT: And if you wish to present a defense, that is kind of like
up to you, but if you wish to do that, your mind is clear and your thoughts and you
understand the charges where if you wish to do that, you feel you could do that?
       “MR. DANIELS: Yes, I do.
       “THE COURT: You do?
       “MR. DANIELS: Yes, I do.
       “THE COURT: All right. Is there anything else?
       “[THE PROSECUTOR]: No, your Honor, not on that issue.
       “THE COURT: All right. The Court makes findings as follows: One, the
defendant, Mr. Daniels, is competent, he understands the nature of the charges, he
understands and represents that his mind is clear whereby if he wished to present a
defense, he would know how to do that to these charges. [¶] The Court also finds
that Mr. Daniels understands and is aware of the risk and dangers of representing
himself, and I further find that he is waiving his right to a lawyer and proceeding
to trial by way of self-representation. And I find that this choice for him to
represent himself is done knowingly, freely, and intelligently, and without any
force or coercion. The Court then will grant you your right to represent yourself.”
       Daniels signed a record of Faretta warnings in open court and affirmed that
he understood the warnings contained in the document.
           2. Analysis
       Daniels argues the court failed to meaningfully inquire into his
understanding of the charges. The record contains no indication that Daniels ever
discussed the risks of self-representation with counsel. Daniels asserts that neither
Judge Ransom nor Judge Long inquired as to Daniels’s legal experience or
informed him of the complexities of trial. Further, Judge Long did not address
Daniels’s statement that he did not view self-representation to be disadvantageous.



                                         14
       As established by the high court in Faretta, a defendant has a federal
constitutional right to the assistance of counsel during all critical stages of a
criminal prosecution. (Faretta v. California (1975) 422 U.S. 806, 807 (Faretta);
United States v. Wade (1967) 388 U.S. 218, 223–227.) A defendant may
nonetheless waive this right and personally represent himself or herself, as long as
the defendant’s waiver of the right to counsel is valid. An effective waiver
requires that the defendant possess the mental capacity to comprehend the nature
and object of the proceedings against him or her, and waive the right knowingly
and voluntarily. (People v. Koontz (2002) 27 Cal.4th 1041, 1069 (Koontz);
Godinez v. Moran (1993) 509 U.S. 389, 401, fn. 12.) There is no prescribed script
or admonition that trial courts must use to warn a defendant of the perils of self-
representation. But the record as a whole must establish that the defendant
understood the “dangers and disadvantages” of waiving the right to counsel,
including the risks and intricacies of the case. (People v. Blair (2005) 36 Cal.4th
686, 708; People v. Burgener (2009) 46 Cal.4th 231, 241.) If a defendant validly
waives the right to counsel, a trial court must grant the request for self-
representation. (People v. Welch (1999) 20 Cal.4th 701, 729.) We review a
Faretta waiver de novo, examining the entire record to determine the validity of a
defendant’s waiver. (Koontz, at p. 1070.)
       In determining the validity of a trial court’s decision to permit the exercise
of a defendant’s Faretta right, we have treated the suggested advisements and
inquiries set forth in People v. Lopez (1977) 71 Cal.App.3d 568 (Lopez) as a
useful reference for courts to ensure the knowing and voluntary waiver of counsel.
(Koontz, supra, 27 Cal.4th at pp. 1070–1073.) Lopez suggests the court provide
advisements falling into three general categories: (1) ensuring the defendant’s
awareness of the “ ‘dangers and disadvantages’ ” associated with self-
representation; (2) inquiring into the defendant’s intellectual capacity; and (3)

                                           15
informing the defendant that he or she cannot later claim inadequacy of
representation. (Lopez, at pp. 572–574.) Here, the record demonstrates that
Daniels was — orally and in writing — sufficiently advised of the benefits of
counsel and warned about the pitfalls of self-representation in accordance with
Lopez’s guidance.
       First, Daniels was made thoroughly aware of the “ ‘dangers and
disadvantages of self-representation.’ ” (Lopez, supra, 71 Cal.App.3d at p. 572.)
The court advised him that it is “never wise” for an unskilled person to represent
oneself. The court also told him that it would not grant him any special treatment,
and he would be subject to the same standards expected of an attorney. Judge
Ransom and Judge Long both emphasized to Daniels that he would be opposed by
a trained prosecutor, whom Judge Long described as “one of the experts in this
county in prosecuting [death penalty] cases.” Judge Long analogized the expected
disparity in lawyering skills to “a flag football team going up against the
Tennessee Titans.” Daniels signed a “Record of Faretta Warnings” form, attesting
that he had been advised of the court’s oral admonitions — including that he had
the right to counsel at all stages of the case; it is generally “not a wise choice” to
represent oneself in a criminal matter; he would not receive any special treatment
from the court; and he would be required to comply with all rules of criminal
procedure and evidence just like an attorney would. Finally, Daniels was twice
provided a form explaining his library privileges as a self-represented inmate.
Daniels orally acknowledged that he had read and considered the court order
regarding in propria persona privileges. The record reveals that the court amply
advised Daniels of the dangers and disadvantages of self-representation.
       Second, the court conducted an inquiry into Daniels’s intellectual capacity,
as recommended in Lopez. Both Judge Ransom and Judge Long asked about
Daniels’s education level. Daniels stated that he had a high school education and

                                           16
could read and write. He told the court that he had previously been employed “off
and on” as a mailroom clerk, a job which required that he read and understand
documents. The court also ensured that Daniels was made aware of his right to
counsel. (See Lopez, supra, 71 Cal.App.3d at p. 573.) Specifically, Daniels was
informed of his right to appointed counsel, if he could not afford his own,
throughout the entirety of proceedings. Daniels rejected the court’s multiple offers
to appoint advisory counsel and a defense investigator, and he later confirmed that
he did not desire such assistance.
       The court read aloud all 22 charges from the amended information and
confirmed, after each offense, that Daniels understood the charge just read.
Daniels acknowledged that he could be put to death if he were found guilty and
the special circumstances found true. Daniels was informed that if he were
disruptive, he would be removed from the courtroom and an attorney would be
brought in to complete the case on his behalf. We reject Daniels’s argument that
the court’s inquiry was inadequate because it did not review the elements of the
charges, possible defenses, or possible punishments besides the death penalty —
or confirm that counsel had done so with Daniels. Although an “exploration into .
. . possible defenses and possible punishments” may be useful to help a defendant
understand “just what he is getting himself into” (Lopez, supra, 71 Cal.App.3d at
p. 573), it is not required for a knowing and intelligent waiver of counsel under
Faretta. (See also People v. Riggs (2008) 44 Cal.4th 248, 277 [“The trial court is
not required to ensure that the defendant is aware of legal concepts such as the
various burdens of proof, the rules of evidence, or the fact that the pursuit of one
avenue of defense might foreclose another. . . .”]; People v. Joseph (1983) 34
Cal.3d 936, 939–944 [less extensive colloquy in capital case revealed that waiver
was knowing and intelligent, rendering denial of self-representation request
reversible error].) Further, Daniels told the court that he understood the nature of

                                          17
all the charges against him. Daniels’s waiver was not defective simply because
the court did not define offense elements, such as premeditation or malice
aforethought, or review potential defenses.
       Despite the absence of direct questions by Judge Ransom about Daniels’s
mental competence, Daniels points to nothing in the record that would have raised
a question about his competence. (See Lopez, supra, 71 Cal.App.3d at p. 573 [“If
there is any question in the court’s mind as to a defendant’s mental capacity . . . a
rather careful inquiry into that subject should be made” (italics added)].)
Moreover, Judge Long did inquire about Daniels’s present mental health and
whether Daniels was “thinking clearly.” In response to questioning, Daniels
indicated that he was thinking clearly, knew what he was doing, and was not under
the effect of any substance that would cloud his judgment. The court made an
express finding that Daniels was competent to waive his right to counsel. The
record as a whole supports the court’s conclusion.
       Daniels stated that he did not view self-representation as a disadvantage.
“All right,” replied the court, without asking why Daniels felt this way. If
Daniels’s statement had conveyed some understanding that his waiver of counsel
was conditional, the court would have been obligated to accept the condition or
else deem the waiver ineffective. (See People v. Carter (1967) 66 Cal.2d 666, 670
[“waiver of counsel which is made conditional by a defendant cannot be effective
unless the condition is accepted by the court”].) But Daniels’s statement does not
divulge a conditional waiver, such as one contingent upon the receipt of some
undisclosed benefit. In light of the court’s admonitions, Daniels’s statement at
most reflects his personal preference to control his own defense — which, no
matter how ill-advised, he was entitled to do under Faretta. (See Faretta, supra,
422 U.S. at p. 834 [“the defendant . . . must be free personally to decide whether in
his particular case counsel is to his advantage”].) Accordingly, Daniels fails to

                                         18
persuade that the court had a duty to clarify what Daniels meant, or else invalidate
the waiver.
       Third, Daniels was informed by both Judge Ransom and Judge Long that, if
he chose to represent himself, he could not later claim inadequacy of
representation. (See Koontz, supra, 27 Cal.4th at p. 1071, citing Lopez, supra, 71
Cal.App.3d at p. 574.)
       Daniels also raises an argument unrelated to the sufficiency of the court’s
admonitions. He insists that, because his written request to represent himself was
coupled with a request to plead guilty, it should have been apparent to the court
that Daniels was trying to circumvent the statutory limitation on his ability to
plead guilty. Daniels argues that the court should have sua sponte appointed
additional counsel or determined whether Daniels was able to negotiate a plea that
would not have subjected him to the death penalty. We are not aware of any
binding authority — nor has Daniels identified any — that would have required
the court to take such action. There is no dispute that Daniels’s express waiver of
counsel was voluntary. Considering the record as a whole, we conclude that
Daniels’s counsel waiver was also knowing and intelligent, and therefore valid.

       B. Self-Representation in Violation of Section 1018 and the Eighth and
          Fourteenth Amendments
       Representing himself, Daniels expressly waived the right to a trial by jury.
At trial, he did not present any evidence or argument, did not raise any objections,
and did not conduct cross-examination. Daniels argues that his actions at trial
were tantamount to a guilty plea in violation of section 1018, and that the
proceedings were insufficiently reliable so as to violate the Eighth and Fourteenth
Amendments to the United States Constitution. He seeks reversal of the murder
convictions and the special-circumstance findings. For reasons elucidated below,
this claim is one we reject.


                                         19
           1. Background
       At a court appearance on April 28, 2000, Daniels asked to speak with the
judge. Judge Ransom informed Daniels that he would need to speak through his
lawyer. In response, Daniels stated, “I’m not agreeing with nothing that’s going
on. I’m not agreeing with nothing that’s going on here — I’m not agreeing with
nothing that’s going on here.”
       On August 7, 2000, at a proceeding to set a date for Daniels’s preliminary
hearing, Daniels told Judge Ransom that he wished to plead guilty. Daniels’s
counsel confirmed that Daniels was facing the death penalty for these charges.
The court informed Daniels that he was not permitted to plead guilty without his
counsel’s consent; the court then entered Daniels’s plea of not guilty.
       On August 23, 2000, in response to the court’s request that Daniels waive
his right to a continuous preliminary hearing so that the court could start later the
next day, Daniels told the court, “[I’m] willing to waive all my rights . . . and go
no further in the matter.” The next day, after Daniels was held to answer, he
repeated his desire to plead guilty. The court asked counsel if, “in light of the
seriousness of the offense,” he wished to enter pleas of not guilty and denials of
enhancements on behalf of Daniels; counsel replied in the affirmative. At
Daniels’s arraignment a week later, the court refused Daniels’s request to address
the court in private after the court asked Daniels whether he wanted counsel.
       In a letter dated December 7, 2000, Daniels wrote to Judge Ransom: “I am
Respectfully Requesting that I be allowed to withdraw my ‘Not Guilty’ Plea and
enter a ‘Guilty Plea.’ I am also Requesting that I Be allowed to Represent myself,
my feretta [sic] Rights. I fully understand that I am charged with the Capitol [sic]
offense of Murder penal code Section 187 with the special circumstances.” He
enclosed a partially completed fill-in-the-blank Faretta motion form. On
December 20, 2000, the court granted Daniels’s request to represent himself,


                                          20
though it advised Daniels that, even if he was self-represented, he could not “plead
guilty to a death penalty case and get the death penalty.”
       The case was reassigned from Judge Ransom to Judge Long for all
purposes on January 5, 2001. Despite Judge Ransom’s prior admonition, Daniels
again attempted to plead guilty to all charges. The court prohibited Daniels from
pleading guilty to the murders and related counts (counts 12–16, 20–22), but
allowed him to enter guilty pleas to all other counts that had not been dismissed.
Daniels waived his right to a jury trial and agreed to have Judge Long decide guilt
and penalty. At trial, which lasted two days, the prosecution presented the
testimony of 27 witnesses and entered 90 exhibits in evidence. Daniels asked no
questions of any witness, raised no objections, presented no witnesses or evidence,
and made no argument in his defense.
       On review, Daniels argues that –– by waiving counsel and jury trial and
then failing to present any defense –– he effectively pleaded guilty without
consent of counsel, in violation of section 1018. He contends that because his
conviction obtained in violation of section 1018, it must be reversed. Moreover,
Daniels asserts that reversal is warranted because the proceedings below lacked
the reliability required by the Eighth and Fourteenth Amendments.

           2. Analysis
       Section 1018 provides, in relevant part: “No plea of guilty of a felony for
which the maximum punishment is death, or life imprisonment without the
possibility of parole, shall be received from a defendant who does not appear with
counsel, nor shall that plea be received without the consent of the defendant’s
counsel.” In 1973, the Legislature amended the statute to add the requirement that
defense counsel consent to a guilty plea in capital cases. (Stats. 1973, ch. 719, §
11, p. 1301.) We have recognized this amendment to be a component in an



                                         21
overhaul of California’s death penalty laws, following the high court’s decision in
Furman v. Georgia (1972) 408 U.S. 238, in an effort to eliminate arbitrariness in
the imposition of the death penalty. (See People v. Chadd (1981) 28 Cal.3d 739,
750 (Chadd).) The consent of counsel requirement is rooted “in the state’s strong
interest in reducing the risk of mistaken judgments in capital cases and thereby
maintaining the accuracy and fairness of its criminal proceedings.” (People v.
Alfaro (2007) 41 Cal.4th 1277, 1300 (Alfaro).)
       Daniels informed the court several times, during various pretrial
proceedings, that he wished to plead guilty to all charges, but the court told him
that he could not do so under section 1018. After counsel refused to consent to his
pleading guilty, Daniels waived counsel and opted to represent himself. Even
thereafter, the court did not permit Daniels to plead guilty to the murder charges or
related counts; those charges thus proceeded to trial.1 Daniels argues that his own
inaction at trial — his failure to cross-examine any prosecution witnesses, raise
objections, and present evidence and argument in his defense — was tantamount
to a “slow plea of guilty” in violation of section 1018.
       A “slow plea” is an “ ‘agreed-upon disposition . . . which does not require
the defendant to admit guilt but results in a finding of guilt . . . usually, for a
promised punishment.’ ” (People v. Wright (1987) 43 Cal.3d 487, 496, quoting
People v. Tran (1984) 152 Cal.App.3d 680, 683, fn. 2.) One of the clearest
examples of a slow plea is “a bargained-for submission on the transcript of a
preliminary hearing in which the only evidence is the victim’s credible testimony,


1      “Even if otherwise competent to exercise the constitutional right to self-
representation [citation], a defendant may not discharge his lawyer in order to
enter such a plea [of guilty to a capital felony] over counsel’s objection.” (People
v. Mai (2013) 57 Cal.4th 986, 1055.)



                                           22
and the defendant does not testify and counsel presents no evidence or argument
on defendant’s behalf.” (Wright, at p. 496.) Where the agreed-upon procedures
become tantamount to a guilty plea, a court commits reversible error if it fails to
secure the constitutional and statutory safeguards entailed by a plea. (See Tran, at
pp. 684–685.) For the purpose of addressing this claim, we assume — but do not
decide — that a “slow plea” qualifies as a “plea” within the meaning of section
1018.
        Daniels argues that the “truncated, non-adversarial proceedings” of this
case do not advance section 1018’s constitutional and policy purposes of ensuring
reliable judgments in capital cases. But a trial, even one where a defense is
voluntarily forgone, is fundamentally different from a guilty plea. In the
proceedings below, the state was put to its burden of proof as to the murder
charges and related counts. A plea, on the other hand, “serves as a stipulation that
the People need introduce no proof whatever to support the accusation” and “ ‘is
itself a conviction.’ ” (Chadd, supra, 28 Cal.3d at p. 748.) Moreover, a guilty
plea severely limits the right to appeal. (See ibid.) Section 1018 is reflective of
the state’s interest in reducing the risk of mistaken judgments, an interest that is
particularly pronounced in the context of guilty pleas. (See id. at pp. 751–753.)
        A submission “is defined by the rights a defendant surrenders.” (People v.
Robertson (1989) 48 Cal.3d 18, 40.) The essential components of a submission
amounting to a slow plea are the waiver of trial by jury, the waiver of the right to
confront witnesses, and the waiver of the privilege against self-incrimination. (See
id. at pp. 39–40; see also Chadd, supra, 28 Cal.3d at p. 748 [one of the
consequences of a guilty plea is that it “strips the defendant of . . . the privilege
against self-incrimination, the right to a jury, and the right of confrontation”].)
Here, there is no indication that Daniels’s waiver of jury trial was the consequence
of any negotiated agreement concerning the disposition, punishment, or evidence

                                           23
to be presented in the case. Further, Daniels never surrendered his right to
confront witnesses or otherwise challenge the prosecution’s evidence at trial; he
simply elected not to do so. He also preserved his privilege against self-
incrimination by declining to testify throughout trial.
       In addressing Daniels’s argument regarding the nature of proceedings in his
case, we find instructive People v. Sanders (1990) 51 Cal.3d 471. There, the
defendant, who was represented by counsel, claimed that his decision not to
present evidence at the penalty phase of trial was tantamount to a guilty plea in
violation of section 1018. (Id. at p. 527.) We rejected this argument, finding that
section 1018 did not govern, in part because the defendant’s “choice did not
amount to an admission that he believed death was the appropriate penalty, nor did
he give up his right to confront or cross-examine those testifying against him at the
penalty phase.” (Ibid.) We found section 1018’s scope not so broad as to
encompass the defendant’s choice to not participate in his trial. (Ibid.)
       Daniels’s argument does not persuade us that the trial court should have
appointed counsel after realizing that Daniels intended to forgo presentation of any
trial defense. In affirming the Sixth Amendment’s right of self-representation
upon a knowing and intelligent waiver of the right to counsel, the high court
stated, “The right to defend is personal. . . . [A]lthough [the defendant] may
conduct his own defense ultimately to his own detriment, his choice must be
honored out of ‘that respect for the individual which is the lifeblood of the law.’
[Citation.]” (Faretta, supra, 422 U.S. at p. 834.) We have held that “a capital
defendant representing himself under Faretta has no duty to ‘present a defense’
but may simply ‘put the state to its proof.’ ” (Chadd, supra, 28 Cal.3d at p. 750,
fn. 7, quoting People v. Teron (1979) 23 Cal.3d 103, 115.)
       Daniels is correct to emphasize the significance of section 1018’s
prohibition against guilty pleas in capital cases. But his refusal to participate in

                                          24
his defense at trial did not amount to a slow plea in violation of section 1018.
Further, we reject his related claims that the nonadversarial nature of the
proceedings below rendered the judgment unreliable in violation of the Eighth and
Fourteenth Amendments to the United States Constitution. “[T]he high court has
never suggested that this heightened concern for reliability requires or justifies
forcing an unwilling defendant to accept representation or to present an
affirmative penalty defense in a capital case.” (People v. Bloom (1989) 48 Cal.3d
1194, 1228 (Bloom).) Indeed, such a requirement — which hinges solely on a
defendant’s behavior — would produce perverse incentives, encouraging
defendants who wish to avoid the death penalty to decline to present any defense,
knowing that their sentence will be reversed on appeal. (See id. at p. 1227.) In the
instant case, the prosecution discharged its burden of proof during the guilt and
special-circumstance phases. The judgment does not violate the reliability
requirements of the Eighth and Fourteenth Amendments.

       C. Waiver of Counsel in Violation of Section 686.1
       Daniels also contends the trial court erred under section 686.1 by failing to
deny Daniels’s Faretta motion. When Daniels’s waiver of counsel was accepted,
he had already expressed to the court his desire to plead guilty to all charges and
had repeatedly declined advisory counsel and an investigator. Daniels argues that
his passivity throughout the proceedings undermined the fairness and reliability of
the judgment, such that his right to self-representation should have been
subordinated or revoked based on recognized limits of the high court’s Faretta
decision and Eighth Amendment reliability requirements in capital cases.
       Section 686.1 requires defendants in capital cases to be represented by
counsel during all stages of the preliminary and trial proceedings. This provision
predates the high court’s decision in Faretta and may only be applied where



                                          25
Faretta is not implicated. (See People v. Johnson (2012) 53 Cal.4th 519, 526
[explaining that post-Faretta, “Penal Code section 686.1 . . . cannot be given
effect”].) We acknowledge the importance of ensuring proceedings are fair and “
‘appear fair to all who observe them.’ ” (Indiana v. Edwards (2008) 554 U.S. 164,
177.) But once a court determines that a competent defendant has knowingly and
voluntarily asserted the right to self-representation under Faretta, the court is not
authorized to revoke that right in an attempt to ensure that the defense case meets
some minimum level of effectiveness. The “likelihood or actuality of a poor
performance by a defendant acting in propria persona” does not defeat the right of
self-representation. (People v. Taylor (2009) 47 Cal.4th 850, 866.)
       We reject Daniels’s argument that the Eighth Amendment’s requirements
outweigh an individual’s interest in self-representation merely because a defendant
has chosen not to participate in the defense. Even where a defendant fails to
present any defense or potentially mitigating evidence, the Eighth Amendment’s
requirement of reliability in death judgments is sufficiently attained “ ‘when the
prosecution has discharged its burden of proof . . . pursuant to the rules of
evidence and within the guidelines of a constitutional death penalty statute, the
death verdict has been returned under proper instructions and procedures, and the
trier of penalty has duly considered the relevant mitigating evidence, if any, which
the defendant has chosen to present.’ ” (People v. Mai (2013) 57 Cal.4th 986,
1056, quoting People v. Bradford (1997) 15 Cal.4th 1229, 1372; see also Bloom,
supra, 48 Cal.3d at 1228.)
       We are not persuaded that Daniels’s contentions warrant reconsideration of
prior decisions by this court. The trial court committed no error in violation of
section 686.1.




                                          26
       D. Knowing and Intelligent Waiver of the Right to a Jury Trial
       Daniels also asserts that the record does not reflect valid waivers of the
right to a jury trial in favor of a bench trial. As we explain below, we would find
this claim meritorious because the record fails to demonstrate his knowing and
intelligent waiver. We find such error to be structural, requiring reversal of
Daniels’s convictions on all counts tried.
           1. Background
       On December 20, 2000, Judge Ransom engaged Daniels in a Faretta
colloquy and found that Daniels’s decision to represent himself was knowing and
intelligent. Immediately after accepting Daniels’s counsel waiver, the court asked
if Daniels wanted to confirm the jury trial date, to which Daniels responded, “Yes.
Keep it the same date for jury.”
       On January 5, 2001, Daniels appeared, self-represented, before Judge Long.
Judge Long provided Daniels with further admonitions about the waiver of
counsel. Then, the court accepted Daniels’s waiver of his right to trial by jury in
favor of a court trial as reflected in the following colloquy:
       “THE COURT: The other question I think I might raise with you is do you
intend to proceed in terms of the guilt phase, and if there is a penalty phase, by
way of a jury trial or by way of a court trial?
       “MR. DANIELS: Court trial.
       “THE COURT: Are you satisfied that that’s what you want to do?
       “MR. DANIELS: Yes.
       “THE COURT: Do you understand that you have an absolute right to
proceed by way of jury trial both in the guilt phase and at penalty phase, if there is
a penalty phase, if you want to do that? Do you understand me?
       “MR. DANIELS: Yes.



                                          27
       “THE COURT: What you are telling me then is that you wish to waive
your right to a jury trial in the guilt phase and in the penalty phase which basically
means if there is [sic] two phases, you will not have a jury determine your fate, but
rather the Court will make certain findings based upon what you have been
charged with? Do you understand that?
       “MR. DANIELS: I understand.
       “THE COURT: And more specifically in the posture that we are presently
in, that I will be the Judge that will make those determinations. Do you
understand that?
       “MR. DANIELS: I understand.
       “THE COURT: Do you understand that if you go by way of the court trial
rather than jury trial, I will decide whether the prosecution has proven its case
beyond a reasonable doubt in the guilt phase of the trial, it will be my job to
determine whether you are guilty or not guilty of the charges and allegations made
against you? Do you understand that?
       “MR. DANIELS: I understand.
       “THE COURT: Do you understand that I will determine whether the
special circumstances are true or not true? Do you understand that?
       “MR. DANIELS: Yes.
       “THE COURT: Do you understand if I find you guilty of murder, of
special circumstances, in the guilt phase of the trial, I will also determine whether
the punishment is life without the possibility of parole or the death penalty in the
penalty phase of the trial? You understand that?
       “MR. DANIELS: Yes, I understand.
       “THE COURT: Have you understood everything that I have told you
relative to your right to proceed by way of jury trial or by way of court trial?
       “MR. DANIELS: Yes.

                                          28
       “[THE PROSECUTOR]: If I could just interject one thing. You did touch
on it, but he would also have the right to have the jury determine the truth or not
truth of the special circumstances. I think you did mention that.
       “THE COURT: Yes. If you waived jury, then the jury will not determine
the truth and validity of the special circumstances, that will be my job to determine
whether they are true or not true. Do you understand that?
       “MR. DANIELS: I understand.
       “THE COURT: Now, in terms of waiving your right to jury trial in both
the guilt and if there is a penalty phase, that phase also, are you doing this of your
own free will?
       “MR. DANIELS: Yes.
       “THE COURT: Have any threats been made against you or any members
of your family to get you to waive your right to a jury trial?
       “MR. DANIELS: No.
       “THE COURT: Have you been subject to any force to get you to waive
your right to a jury trial?
       “MR. DANIELS: No.
       “THE COURT: Is there some consideration or secret promise or deal or
something that I am not aware of that’s making you or forcing you to waive your
right to jury trial and proceed by way of court trial?
       “MR. DANIELS: No.
       “THE COURT: Are you presently under the influence of any substance
that would cause you not to be able to think clearly?
       “MR. DANIELS: No.
       “THE COURT: Do you know what you are doing?
       “MR. DANIELS: Yes.
       “THE COURT: All right. Do the People join, also?

                                          29
       “[THE PROSECUTOR]: Yes.
       “THE COURT: Also in the waiver of jury trial rights as to the guilt phase
and also if there is a penalty phase, that the People waive their right to a jury trial
in the penalty phase?
       “[THE PROSECUTOR]: Yes, People join.
       “THE COURT: All right. Do you know what you have just done, sir?
       “MR. DANIELS: Yes.
       “THE COURT: All right. The Court finds that Mr. Daniels understands
and freely and voluntarily waives his right to jury trial and has elected to proceed
by way of court trial in the guilt phase and also by way of court trial in the penalty
phase if, in fact, there is a penalty phase. And these waivers are now made part of
the records of this Court.”
       The record contains no jury waiver form, and there is no indication that one
was ever signed by Daniels.
       During the afternoon session of that January 5th proceeding, Daniels —
still self-represented — stated his intent to plead guilty to the noncapital counts
and to enter pleas admitting the truth and validity of two prior convictions. In
preparation for accepting these pleas, the court obtained oral waivers of Daniels’s
constitutional rights, including the right to jury trial, as shown in the following
exchange:
       “THE COURT: All right. You have the right to a jury trial. Do you
understand that?
       “MR. DANIELS: Yes.
       “THE COURT: Do you realize that by pleading guilty or admitting the
truth and validity of the prior felony convictions alleged against you, you will give
up your right to a jury trial as to these matters?
       “MR. DANIELS: Yes.

                                           30
         “THE COURT: And do you give your right up to a jury trial as it pertains
to these matters?
         “MR. DANIELS: I do.”
         On January 16, 2001, the court began a bench trial on the remaining
charges. Before the prosecutor began his first examination, the court sought to
confirm Daniels’s decision to waive jury trial. In doing so, the court said to
Daniels, “We also talked about your right to a jury trial with members of these
communities that would determine whether or not — the question of guilt or
innocence. [¶] Do you remember that?” Daniels responded yes. He reaffirmed
his desire to waive trial by jury for both the guilt and penalty phases.
         At the start of the penalty phase, the court again informed Daniels that he
had a right to have a jury to try the penalty phase, and the court would empanel a
jury to determine penalty if he so chose. Daniels still wished to proceed by court
trial.
             2. Analysis
         The record demonstrates Daniels personally and expressly waived a jury
trial regarding guilt, special circumstances, and penalty. This Daniels does not
deny, and indeed, the record reveals no equivocation in his request to waive a jury
for all phases of trial. He makes no claim that his waiver was coerced or
otherwise involuntary. What Daniels instead contends is that his waiver was
infirm because the record does not demonstrate he made his waiver with full
awareness of the nature of the right being relinquished. The court, he contends,
did not inform him that a jury would be comprised of 12 impartial members who
must reach a unanimous verdict, nor did it explain the consequences of a hung
jury. The record contains no indication that counsel discussed the jury trial right
during the course of representation, and Daniels asserts that he received no
advisements from counsel regarding this right.

                                           31
       Under both the federal Constitution and the California Constitution, a
defendant in a criminal prosecution is guaranteed the right to a jury trial. (People
v. Weaver (2012) 53 Cal.4th 1056, 1071 (Weaver).) Nonetheless, as enshrined in
our state Constitution, a “jury may be waived in a criminal cause by the consent of
both parties expressed in open court by the defendant and the defendant’s
counsel.” (Cal. Const., art. I, § 16.) Waiver must be “express[ed] in words . . .
and will not be implied from a defendant’s conduct.” (People v. Holmes (1960) 54
Cal.2d 442, 443–444 (Holmes).) Moreover, a court may not accept a defendant’s
waiver of a jury trial unless the waiver “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.’ ” ’ ” (Collins, supra, 26 Cal.4th at p. 305.)
       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.’ ”
(Collins, supra, 26 Cal.4th at p. 310, italics added.) 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.
       Our inquiry into the totality of the circumstances requires us to take
nuanced account of the full set of relevant facts in this case. (See Adams v. U.S. ex
rel. McCann (1942) 317 U.S. 269, 278 (Adams) [“[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.”].) In our prior cases, we
have assessed whether a knowing and intelligent waiver was given by examining
factors such as the nature of the colloquy prior to the court’s acceptance of a

                                          32
waiver, the presence of counsel and references to discussions between the
defendant and counsel regarding the jury right, and the existence and contents of a
written waiver. For instance, this court has upheld an express jury waiver made
“with counsel’s consent and agreement” where other circumstances bolstered the
conclusion that defendant’s waiver was knowing and intelligent. (People v.
Cunningham (2015) 61 Cal.4th 609, 637.) In Cunningham, the represented
defendant received “a full explanation from the court of the right and the
consequences of the waiver.” (Ibid.) The defendant expressly acknowledged,
moreover, that “(1) he had an absolute right to a jury trial in both the guilt and
penalty phases of his trial, (2) in a jury trial, if one of the 12 jurors was not
convinced beyond a reasonable doubt that defendant was guilty, the jury could not
return a guilty verdict, (3) if he waived his right to a jury trial, instead of 12 people
deciding the issue of his guilt or innocence, the judge alone would make that
decision, and (4) it could be easier for the prosecution to convince only one
person, as opposed to 12, that defendant was guilty beyond a reasonable doubt.”
(Id. at p. 636.)
       We were persuaded, in another case, that a knowing and intelligent waiver
had been taken after considering how the defendant had executed two written
waivers reflecting his desire to give up his right to trial by jury; one of the forms,
also signed by counsel, stated that defense counsel “ ‘fully explained’ ” to the
defendant the terms “ ‘jury trial’ ” and “ ‘court trial’ ” and the “ ‘difference
between a “jury trial” and a “court trial.” ’ ” (Weaver, supra, 53 Cal.4th at p.
1070.) In addition, the court described to the defendant several differences
between the two types of trials, informing him that he had an absolute right to a
unanimous decision by twelve “ ‘citizens of the community.’ ” (Ibid.) We have
upheld another waiver as knowing and intelligent where the prosecutor explained,
among other items, “what a jury trial was and that the jury would have to agree

                                           33
unanimously on guilt, special circumstances, and penalty” and both defense
counsel and the prosecutor joined in the waiver. (People v. Scott (1997) 15
Cal.4th 1188, 1208 (Scott).) And in yet another case, we found a valid waiver
where the “[d]efendant was represented by two apparently competent counsel who
over the course of several days discussed with him ‘at length’ the consequences
and nature of his proposed waiver” and, prior to accepting the waiver, the court
“engaged [defendant] in an extensive and thorough voir dire” which included this
advisement: “You understand, also, that if you do waive jury and submit it to the
Court, the Court will act solely. If you have a jury trial, before a verdict can be
returned either way, it requires unanimous agreement of all 12 jurors; do you
understand that?” (People v. Robertson (1989) 48 Cal.3d 18, 36–37 & fn. 5.)
These facts of our prior cases by no means establish requirements for effective
jury waivers; they simply illustrate instances in which this court has found waivers
to be knowing and intelligent.
       Consistent with our precedent and in recognition of the fact-intensive
nature of our inquiry, we first analyze the trial court’s record advisements
preceding its acceptance of Daniels’s jury waiver. The trial court’s admonitions
are relevant only to the extent that they shed light on the state of a defendant’s
knowledge at the time of waiver about the nature of the right he or she would give
up and the consequences of doing so. Yet the in-court colloquy serves an essential
purpose of facilitating meaningful appellate review of a defendant’s waiver of
fundamental constitutional rights. Following the high court’s decision in Boykin v.
Alabama (1969) 395 U.S. 238, this court amended our test for determining the
validity of guilty pleas — one that previously required explicit admonitions — to
align with the federal test. (People v. Howard (1992) 1 Cal.4th 1132, 1175.) In
that regard, we established that a guilty plea is effective “if the record
affirmatively shows that it is voluntary and intelligent under the totality of the

                                          34
circumstances.” (Ibid.) We further explained that “explicit admonitions and
waivers still serve the purpose that originally led us to require them: They are the
only realistic means of assuring that the judge leaves a record adequate for
review.” (Id. at pp. 1178–1179; accord, Koontz, supra, 27 Cal.4th at p. 1071 [“the
purpose of the suggested Lopez admonitions is to ensure a clear record of a
knowing and voluntary waiver of counsel”].) A meaningful colloquy — or lack
thereof — bears on our ability, on review, to confirm whether a valid waiver of
rights was given.
       This court has persistently declined to mandate any specific admonitions
describing aspects of the jury trial right. (See, e.g., Weaver, supra, 53 Cal.4th at p.
1074; People v. Sivongxxay (2017) 3 Cal.5th 151, 170 (Sivongxxay).) We
continue 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 the trial court is
not merely a passive receiver of an attempted waiver. We have long recognized
the responsibility of the courts to adequately advise defendants before accepting
their waivers of fundamental rights. The court’s obligation “to advise [the]
defendant of his right to jury trial” and to “determine impartially whether [the]
defendant’s waiver of jury trial was knowing, intelligent, and voluntary” is a
“constitutional procedural duty.” (Collins, supra, 26 Cal.4th at pp. 308–309; see
also U.S. v. Duarte-Higareda (9th Cir. 1997) 113 F.3d 1000, 1003 [under certain
circumstances, district court may be “obliged to conduct a colloquy . . . to carry
out its ‘serious and weighty responsibility’ of ensuring that a defendant’s jury
waiver is voluntary, knowing, and intelligent”].) How to best achieve this goal is
left to the trial courts. Although we offer some exemplars of advisements and
colloquy elements that may be helpful in establishing that a waiver was knowing
and intelligent, post, we do not seek to require that trial courts provide any
particular advisements.

                                          35
       If the trial court is not persuaded the waiver is knowing and intelligent, the
court cannot accept it. (See Collins, supra, 26 Cal.4th at p. 305 [“a defendant’s
waiver of the right to jury trial may not be accepted by the court unless it is
knowing and intelligent”].) The federal Constitution, after all, guarantees the right
to a jury trial but does not provide for a right to a court trial. (Singer v. United
States (1965) 380 U.S. 24, 34–35.) As the high court has elaborated, a jury trial is
the “normal” and often “preferable mode of disposing of issues of fact in criminal
cases above the grade of petty offenses.” (Patton v. United States (1930) 281 U.S.
276, 312 (Patton); accord, U.S. v. Martin (6th Cir. 1983) 704 F.2d 267, 272
(Martin).) Not only must the right to jury trial be “jealously preserved,” but due to
the traditional and important role of the jury as a factfinding body in criminal
cases, a waiver is only effective if given with the consent of government counsel,
the sanction of the court, and “the express and intelligent consent of the
defendant.” (Patton, at p. 312.) While the right to jury trial is waivable, “we ‘do
not presume acquiescence in the loss of fundamental rights.’ ” (Johnson v. Zerbst
(1938) 304 U.S. 458, 464.)
       What the court did in this case –– immediately after accepting Daniels’s
counsel waiver on December 20, 2000 –– was ask if Daniels wished to confirm the
jury trial date. Daniels replied: “Yes. Keep it the same date for jury.” He did not
ask about waiving a jury. In fact, it was the judge who broached the issue on
January 5, 2001. He did so by asking whether Daniels wished to proceed by jury
trial or court trial. In response to the court’s inquiry, Daniels opted for a court
trial. Up until that point, Daniels never explicitly requested or referenced a court
trial. (Cf. Sivongxxay, supra, 3 Cal.5th at p. 167 [defendant initiated request to
waive jury].)
       The court orally advised Daniels that the judge alone, instead of a jury,
would make determinations in the different phases of his capital trial. The court

                                           36
admonished Daniels that, in the event of waiver, the judge alone would determine
whether Daniels was guilty, whether special circumstances were true, and whether
the appropriate punishment was death. This information may have illuminated the
nature of the court trial Daniels was opting to pursue. But Daniels was provided
nearly no information about the right he would abandon. The court did not, prior
to accepting the waiver, elaborate on what a jury trial entails, other than that it is
not the same thing as a trial before a judge. The court did not explain anything
about the nature of the jury — for example, what constitutes a jury, how a jury is
selected, or that jury members must be impartial and their verdict unanimous.
Daniels replied yes to the court’s questions, “Do you know what you are doing?”
and, moments later, “Do you know what you have just done?” With that, the court
accepted Daniels’s express oral waiver on January 5. The court never inquired
whether — even in a general sense — Daniels understood what a jury trial
entailed, or if he had any questions about the waiver of the jury right. The waiver
was never memorialized in writing.
       When the guilt phase commenced a week and a half later, on January 16,
2001, the court sought to orally confirm that Daniels maintained his desire to
proceed by way of court trial. The court stated, “We also talked about your right
to a jury trial with members of these communities that would determine whether
or not — the question of guilt or innocence. [¶] Do you remember that?” The
court was mistaken on this point: it had not previously informed Daniels that
members of the community would determine guilt or innocence. Nonetheless,
Daniels responded “Yes” to the court’s query of whether he recalled such an
advisement. This exchange reveals a discrepancy between what the court
evidently believed it told Daniels and what it actually told him. Daniels’s
affirmative response as to whether he remembered the purported previous
advisement, despite no record it was given, ultimately provides little support for

                                           37
conclusion that Daniels’s waiver was based on full awareness of the nature of the
jury trial right.
        The appellate record contains a January 4, 2001, memorandum with the
subject line “Waivers,” which was filed by the prosecutor. In this memorandum,
the prosecutor requested that the court conduct supplemental colloquies as to
various waivers. One proposed advisement was, “You have an absolute right to
have your case heard by a jury of twelve persons.” The court did not provide this
advisement to Daniels, nor did it mention this memorandum in any proceedings.
The record does not establish that Daniels ever received, much less read or
understood, this memorandum. Although Daniels is listed as an intended
recipient, there is no proof of service or any notation of service on the document.
In contrast, a “Notice of Evidence in Aggravation” memorandum dated two days
earlier on January 2 bears the notation, “Hand delivered to Daniels 1/3/01,” with
the prosecutor’s initials. The Notice of Evidence in Aggravation memorandum
was also discussed on the record in Daniels’s presence, while the Waivers
memorandum was never referenced in court. The Waivers memorandum does not
contain indicia of reliability which would accompany a written waiver signed by
the defendant or a document referenced during court proceedings. Thus, the
existence of this memorandum is minimally probative in our assessment of
Daniels’s knowledge. We know of no other written materials in the record
regarding Daniels’s waiver of his jury right.
        To its credit, the court obtained Daniels’s express waiver for three separate
phases of trial: guilt, special circumstances, and penalty. The prosecutor, perhaps
cognizant of the People’s interest in ensuring that the record reflected a valid
waiver, interjected at one point to confirm that Daniels would waive a jury for the
special-circumstance determinations. What remains both striking and relevant,



                                          38
however, is that the court accepted Daniels’s waiver without ever inquiring as to
Daniels’s understanding of any substantive aspect of what a jury is.
       The People point out that Daniels “never expressed confusion or asked for
clarification regarding his jury trial right.” While this may be true, we decline to
infer Daniels’s knowledge from his failure to ask unprompted questions of the
court. And though an utterance of bewilderment might have weighed in favor of
our finding Daniels’s waiver to not be knowledgeable, the absence of such an
expression does not push us toward the inverse finding of a knowing waiver. The
phrase “You don’t know what you don’t know” encapsulates the futility of relying
on defendants to raise questions or identify misunderstandings on their own when
they lack the very basis to understand what lies beyond the scope of their
knowledge.
       We do not dispute that Daniels expressly affirmed –– multiple times –– his
desire to waive a jury for all trial phases. But we decline to conflate a knowing,
intelligent waiver with an emphatic one. The former is constitutionally required;
the latter is not. Moreover, our concurring and dissenting colleagues are mistaken
in declaring that we “dismiss Daniels’s repeated affirmations that he understood
his right to a jury trial and the consequences of forgoing it.” (Conc. & dis. opn. of
Corrigan, J., post, at p. 16.) Not once did Daniels say he understood what the jury
right entails. We are not persuaded that Daniels’s purported “overarching aim . . .
to accept responsibility for the charged crimes” is relevant to whether his jury trial
waiver was knowing and intelligent. (Conc. opn. of Kruger, J., post, at p. 2.) That
a defendant “may have made a ‘tactical choice’ to waive a jury tells us nothing
about whether he understood what he would be giving up by making such a
choice.” (U.S. v. Shorty (9th Cir. 2013) 741 F.3d 961, 969 (Shorty).) Nor was
Daniels permitted by statute to plead guilty to capital charges in any event, so it
strains logic to assume we should in any way give weight to his desire to plead

                                          39
guilty when — after it was settled that Daniels would proceed to trial on the
murder counts and related charges — the trial court was still required to ensure a
constitutionally valid proffered waiver.
         Confidence does not imply comprehension. Individuals are entirely
capable of categorically asserting a position without awareness that the roots of
that position lie in ignorance or lack of reflection. It was incumbent upon the
court to verify, not merely to assume, that Daniels indeed grasped the actual nature
of the jury right –– even if only at a basic level. In his own mind, Daniels may
have had an impression of what a jury trial is. Just what impression that was —
and whether it bore any relationship at all to the required constitutional standard
— is well beyond what we can discern from this record.
         Our concurring and dissenting colleagues may believe Daniels
demonstrated “some legal sophistication by filing a written motion to represent
himself and referring to his ‘Faretta’ right.” (See conc. & dis. opn. of Corrigan, J.,
post, at p. 16.) That’s some definition of “legal sophistication.” The “written
motion” was a fill-in-the-blank Faretta form motion; Daniels failed even to fill in
all the blanks. He also handwrote a note to the judge that stated, “I am also
Requesting that I Be allowed to Represent myself, my feretta [sic] Rights.” This
misspelled reference to Faretta perhaps disclosed the gist of his aim to represent
himself, but Daniels’s request does not demonstrate legal sophistication, much less
his understanding of the jury trial right. Even a defendant with enough acumen to
invoke the Faretta right by filling in all the blanks of a form or drafting his or her
own motion in no way forfeits the protections rooted in the wholly distinct
requirement that waiver of a jury trial right must be knowing and intelligent. Of
course, what must be knowing and intelligent for present purposes is Daniels’s
understanding of the jury trial right, not his appreciation of the separate Faretta
right.

                                           40
       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 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. (See, e.g., Weaver, supra, 53 Cal.4th at p. 1075 [valid
waiver, in part, because “the court gave [the defendant] ample time to consider
and reconsider his decision and to discuss it fully with counsel”]; People v. Scott,
supra, 15 Cal.4th at p. 1209 [“That the defendant discussed the decision with
counsel and relied on counsel’s advice strengthens, not weakens, the waiver’s
validity”]; People v. Diaz (1992) 3 Cal.4th 495, 571 [valid waiver, in part, because
“defendant acknowledged that he had thoroughly discussed the jury waiver with
his attorney”].) Here, Daniels had representation for approximately eleven months
before he discharged counsel on December 20, 2000, and about four of those
months elapsed after a trial date had been set. Yet there is no indication that
counsel had at any point discussed with Daniels the substantive nature of a jury
trial or the consequences of giving one up in favor of a court trial in his capital
case. The People argue we should “presume[] that competent counsel would have
informed [Daniels] of the nature of a jury trial.” Although we decline the People’s
invitation to speculate as to possible discussions with counsel which would have
had no bearing on decisions made or topics even mentioned on the record during
the course of counsel’s representation, we observe that their argument correctly
evinces the importance our cases have placed on an attorney’s role in explaining
the jury right to a layperson defendant, and not the mere fact of representation.

                                          41
       As we have found, ante, Daniels’s waiver of counsel was knowing and
intelligent. But while Daniels’s choice to represent himself meant that he agreed
to assume certain duties of counsel, perhaps to his detriment, this decision did not
constructively vest him with the knowledge and intelligence he was entitled to
have as a defendant entering a jury trial waiver. It bears repeating that our cases
do not treat a jury trial waiver as valid solely because a defendant has counsel; we
have ascribed importance to the presence of counsel only insofar as it tells us
something about the state of a defendant’s substantive awareness of the nature of
the jury trial right and the consequences of forgoing it.
       Here, Daniels’s waiver of counsel did not signify his willingness to forgo
access to basic, meaningful information about his separate jury trial right. When
the court advised Daniels of what self-representation would entail, it certainly did
not probe Daniels’s knowledge of the jury right, nor did it mention that the court
would no longer be obliged to ensure his jury waiver was knowing and intelligent.
Hence, Daniels’s valid counsel waiver did not absolve the court of its duty to
ensure a valid waiver of his separate constitutional right to be tried by a jury.
Considering the inferences this court has consistently drawn from counsel
representation in assessing the validity of jury waivers, our inability to surmise
that Daniels had any discussions with counsel about a jury waiver means that we
have one less assurance that Daniels understood the nature of the right he was
relinquishing and the effects of doing so.
       A defendant’s knowing and intelligent waiver of jury trial is required by
both the state and federal Constitutions and applies to both represented and self-
represented defendants. In Barnum, we invalidated a rule requiring trial courts to
advise in propria persona defendants of the privilege against compelled self-
incrimination before they were called by the People or testified in their own
defense. (People v. Barnum (2003) 29 Cal.4th 1210 (Barnum) [disapproving

                                          42
Killpatrick v. Superior Court (1957) 153 Cal.App.2d 146 and People v. Kramer
(1964) 227 Cal.App.2d 199].) That rule, known as the Killpatrick-Kramer rule —
which did not mandate advisements for represented defendants but did mandate
them for in propria persona defendants — was a judge-made prophylactic rule of
procedure. (Barnum, at p. 1218.) We reached our holding only after observing
that the Killpatrick-Kramer rule did “not have any counterpart in the federal courts
or in the courts of the vast majority of our sister states.” (Barnum, at p. 1214.) In
doing so, we also rejected the argument that “because a right like the privilege
against compelled self-incrimination may be lost only by waiver, and because a
waiver is effective only if it is knowing, intelligent, and voluntary, the
effectiveness of a waiver is ensured only if the trial court gives an advisement of
what is to be relinquished.” (Id. at p. 1224; see id. at p. 1223.) We explained,
among other things, that the right against self-incrimination is a right that can be
forfeited at trial by failure to assert it in a timely fashion, and the law does not
generally demand that courts issue special admonitions to self-represented litigants
concerning similar matters of trial procedure and strategy. (Id. at pp. 1223–1224.)
       The jury trial right, by contrast, is not subject to forfeiture. (Collins, supra,
26 Cal.4th at p. 305, fn. 2 [the jury trial right is a “fundamental constitutional right
that, although clearly waivable, may be waived only if there is evidence in the
record that the decision to do so was knowing, intelligent, and voluntary”], as cited
in Barnum, supra, 29 Cal.4th at p. 1224.) The question here thus is not, as in
Barnum, whether self-represented litigants should receive special admonitions
about trial practice to avoid inadvertent or ill-advised forfeitures of constitutional
rights. The question is instead whether we can conclude that “there is evidence in
the record that [a defendant’s waiver decision] . . . was knowing, intelligent, and
voluntary” (Collins at p. 305, fn. 2), where no such evidence appears, solely



                                           43
because the defendant chose to forgo representation by counsel. Thus, Barnum is
of little relevance in the instant case.
       Similarly, cases from other jurisdictions do not aid the People here. Our
concurring and dissenting colleagues draw on DeRobertis, a habeas case from the
Seventh Circuit, for the proposition that a knowing and intelligent waiver requires
only that a defendant “understood that the choice confronting him, was on the one
hand, to be judged by a group of people from the community, and on the other
hand, to have his guilt or innocence determined by a judge.” (U.S. ex rel. Williams
v. DeRobertis (7th Cir. 1983) 715 F.2d 1174, 1180 (DeRobertis).) The court here
told Daniels as much –– at least prior to the presentation of evidence at trial, if not
at the time the jury waiver was actually entered. But the Seventh Circuit’s finding
of a valid waiver hinged in significant part on the role of competent counsel in
advising the defendant. (DeRobertis, at p. 1181, italics added [“We are
unpersuaded that . . . it would be fundamentally unfair to give effect to a waiver
executed without knowledge of [certain jury trial] attributes, particularly where
the defendant was represented by competent counsel . . . .”]; id. at pp. 1177, 1180–
1181 [defendant waived jury trial on advice of counsel].)
       This reasoning reinforces an important principle: 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, and they do not assume that
defendants otherwise already possess requisite information to make a knowing and
intelligent waiver. DeRobertis does not hold that a bare-bones mention of trying
the case to a judge rather than jury, without further explanation, would be
sufficient in the absence of advice from competent counsel or other affirmative
indications of the defendant’s legal sophistication. (Cf. Adams, supra, 317 U.S. at
pp. 270–271 [self-represented defendant indicated that he had studied law and
repeatedly demanded a bench trial]; Maryland v. Bell (1998) 720 A.2d 311, 319–

                                           44
320 [distinguishing prior decision in which the defendant “was given no
explanation of the nature of a jury trial,” other than a minimal mention of trying
the case before the court rather than a jury, from a case in which the defendant was
advised of certain “other fundamentals of a jury trial,” and the defendant and “his
trial counsel also had discussed the right to a jury trial prior to the hearing”].)
       To facilitate courts’ enforcement of constitutional safeguards, we offer
general guidance for trial courts in ensuring a defendant’s knowing and intelligent
jury waiver in favor of court trial. As explained in our recent Sivongxxay decision,
this court recommends that trial judges conduct a waiver colloquy expressly
relaying at least four “basic mechanics of a jury trial”: “(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.” (Sivongxxay, supra, 3 Cal.5th at
p. 169.) Additional questioning may assist the court in ensuring a defendant
comprehends what the jury right entails and the consequences of waiving it. (See
id. at pp. 169–170.) In situations where a defendant has waived counsel, we also
endorse the practice of appointing standby counsel for the limited purpose of
discussing with the defendant the decision to waive a jury. (See, e.g., U.S. v.
Sammons (6th Cir. 1990) 918 F.2d 592, 595 [self-represented defendant consulted
with appointed standby counsel during a 10-minute recess before making an oral
motion to waive jury trial]; State v. Clemons (2002) 273 Kan. 328, 340 [standby
counsel available, and self-represented defendant indicated to court he had
discussed jury waiver with counsel]; State v. Barros (Haw.Ct.App. 2004) 95 P.3d
14, 22–23 [court thrice referred pro per defendant to a public defender for
consultation about jury waiver].) This may be done even when, as here, a
defendant declines offers for standby or advisory counsel, for “a court may

                                           45
appoint counsel over an accused’s objection in order to protect the public interest
in the fairness and integrity of the proceedings.” (Massie v. Sumner (9th Cir.
1980) 624 F.2d 72, 74; accord, McKaskle v. Wiggins (1984) 465 U.S. 168, 178
[appointment of standby counsel to represent defendant does not violate Sixth
Amendment right to self-representation, even if appointment is made over
defendant’s objection].)
       The People maintain that Daniels was sufficiently aware of essential
aspects of a jury trial because of his extensive experience with the criminal justice
system, and not merely because of the advisements given in this case. The record
contains certified copies of five of Daniels’s prior felony convictions. Two of
these convictions were introduced at the guilt phase to establish prior strikes
within the meaning of the Three Strikes Law: a January 1986 conviction for
attempted first degree burglary; and a July 1991 robbery conviction. During the
penalty phase, the prosecution additionally introduced certified copies of three
prior convictions as evidence in aggravation: a March 1988 conviction for
possession of a controlled substance; an October 1990 conviction for sale of a
controlled substance; and a February 1998 conviction for second degree burglary.
All five convictions were the result of guilty pleas, and in all those plea
proceedings Daniels was represented by counsel. In none of those cases did the
presiding judge conduct any inquiry into Daniels’s understanding of the jury right
beyond counsel’s representations. The plea colloquy for Daniels’s 1986 attempted
burglary conviction reflects a court advisement that Daniels had a right to either a
jury trial or a court trial, with no discussion of what a jury trial entails. And the
record of Daniels’s February 1998 burglary plea is comprised of a complaint, a
series of minute orders, and a judgment — with no recorded advisement of rights.
For each of Daniels’s felony pleas in March 1988, October 1990, and July 1991,
counsel represented that he or she advised Daniels — each time with the exact

                                           46
same language — “that he cannot be convicted unless all twelve jurors agree that
the prosecution has proved his guilt beyond a reasonable doubt.”
       Given these facts, the People’s contention raises a fundamental question:
How much weight to afford such prior pleas in assessing the totality of the
circumstances indicating whether a jury trial right waiver is “knowing and
intelligent”? It is true that we have previously inferred some degree of a
defendant’s knowledge and intelligence of the jury right from a vaguely
articulated cognizance of criminal history. (See People v. Langdon (1959) 52
Cal.2d 425, 432 [no duty of trial court to inquire into waiver of jury trial, in part,
because defendant had “been before the criminal courts on at least three previous
occasions”].) This court has also once upheld a guilt phase jury waiver after
consideration of several factors, including the fact the defendant had previously
pleaded guilty to two prior offenses, once signing a waiver stating that he “fully
underst[ood]” his right to a jury trial. (Sivongxxay, supra, 3 Cal.5th at p. 167.)
We are mindful, however, that courts — both state and federal — exercise
prudence in determining what types of prior criminal experience would be most
relevant to the waiver at issue, and nothing in our prior cases supports the
conclusion that a defendant’s receipt of previous advisements is bound to satisfy
the requirement that a subsequent waiver of a jury trial right be knowing and
intelligent.
       Consider Parke v. Raley as an example. When the high court stated that
“evidence of a defendant’s prior experience with the criminal justice system [is]
relevant to the question whether he knowingly waived constitutional rights,” it did
so in the context of examining evidence of prior guilty pleas to determine the
validity of the guilty plea at issue. (Parke v. Raley (1992) 506 U.S. 20, 37.) And
when criminal history is brought to bear on an inquiry into a waiver of the right to
a jury trial in favor of a bench trial, the most relevant experience is previously

                                          47
having undergone a criminal trial. (See, e.g., People v. Mosby (2004) 33 Cal.4th
353, 364 [“defendant, who was represented by counsel, had just undergone a jury
trial”]; U.S. v. Carmenate (2d Cir. 2008) 544 F.3d 105, 108–109 [“Defendant’s
experience with the criminal justice system—having been recently tried before,
and convicted by, a jury for similar offenses—is further evidence that he
understood the nature of a jury trial”]; State v. Spurlock (La. 2015) 175 So.3d 955,
956 [“defendant has past experience as an accused in the trial of a criminal
prosecution where he was found guilty by a jury”]; State v. Rizzo (2011) 303
Conn. 71, 93 [“because the defendant previously had been sentenced to death by a
jury, he had particularly relevant personal experience with the criminal justice
system” and “defendant responded affirmatively to the trial court’s query: ‘[S]o
you have been through this process before . . . so you have a complete
understanding [of] how that works. Is that a fair statement . . . ?’ ”].) Here, we
know of no evidence that Daniels had ever previously stood trial.
       Nor can we ignore that the plea colloquies describing certain elements of
the jury right preceded Daniels’s jury waiver in this matter by a decade in one
case, 11 years in another case, and 13 years in another. Unless we assume Daniels
already harbored the kind of detailed knowledge of the jury system that would
make the previous advisements all but irrelevant, to weigh those previous
advisements so heavily implies an enormously contingent conclusion about the
quality of Daniels’s memory and the extent of knowledge he gleaned from those
advisements. In a recent Ninth Circuit case, the government likewise asserted the
defendant’s waiver was knowing and intelligent because he had prior experience
with the criminal justice system, including both prior guilty pleas and a three-day
jury trial. (Shorty, 741 F.3d at p. 968.) In Shorty, the court rejected this argument
because, among other reasons, “[E]ven if [the defendant] was properly instructed
on his right to a jury trial, nothing suggests that he retained that information ten,

                                          48
fifteen, or even twenty years later when he waived the right again in 2010.” (Ibid.)
The record in Daniels’s case does not contain evidence that Daniels had cognitive
impairments that may have affected his ability to understand the consequences of
waiving a jury trial, unlike the record in Shorty (see id. at p. 967). Yet we find
only an attenuated connection, at best, between Daniels’s jury trial right waivers in
this capital case and the oral advice Daniels received in connection with guilty
pleas a decade earlier.
       A court may not accept a jury waiver that is not “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.’ ” ’ ” (Collins,
supra, 26 Cal.4th at p. 305.) Here, the court may have advised Daniels of a
modicum of meaningful information about the nature of a jury trial before
accepting his waiver, insofar as it told him that the right applied to each of the
three phases of trial. Daniels was orally informed that the judge alone would
decide his fate at different stages in his trial. Daniels also consistently replied in
the affirmative when asked whether he understood what he was being told.
Nonetheless, Daniels tendered his waiver without assistance of counsel —
appointed or standby. And nowhere does the record offer even a suggestion that
he ever discussed the jury right with competent counsel. We do not find that the
court made a sufficient effort to assure that this self-represented defendant
understood any substantive aspects of the fundamental jury trial right he would
give up in this case. The court’s only reference to any characteristic of a jury
occurred when it asked Daniels — a week and a half after the waiver was accepted
— whether he recalled an earlier conversation (that had not occurred) regarding
“members of these communities” who would determine guilt or innocence. Guilty
plea colloquies from over 10 years prior demonstrate that Daniels had previously
in his life been orally advised of certain characteristics of a jury trial. But we are

                                           49
not persuaded that these remote plea advisements can patch the record’s void on
this question of whether Daniels waived his jury right in this case in accordance
with constitutional requirements. We have never before found an effective waiver
of jury based on so few available inferences. Neither the People nor any of our
concurring and dissenting colleagues is able to identify a single case when our
court has upheld a jury waiver based on so thin a record. We conclude, based on
the totality of the circumstances of this record, that the trial court erred in
accepting Daniels’s jury trial waiver.
       Unfortunately, a majority of the court does not share our view that
Daniels’s waivers of jury trial were invalid as to all three phases of trial. Instead,
four members of the court today would find Daniels’s guilt phase and special-
circumstance phase waivers to be knowing and intelligent. (See conc. & dis. opn.
of Corrigan, J., post, at p. 26; conc. opn. of Kruger, J., post, at p. 2.) To elucidate
why we do not concur in the judgment supported by a court majority to affirm
Daniels’s guilt convictions and the true findings of the special circumstances, we
assess the consequences of the error we have found.
       A failure to obtain an informed waiver results in a complete denial of
defendant’s right to a jury trial. (See People v. Tran (2015) 61 Cal.4th 1160,
1169.) Both the high court and this court hold that the complete deprivation of the
constitutional jury trial right is a structural error compelling reversal. (See Rose v.
Clark (1986) 478 U.S. 570, 578 [“the State cannot contend that the deprivation
was harmless because the evidence established the defendant’s guilt; the error in
such a case is that the wrong entity judged the defendant guilty”]; Collins, supra,
26 Cal.4th at p. 312 [“improperly inducing a waiver of that right amounts to a
‘structural defect in the proceedings’ requiring that the judgment of conviction be
set aside without the necessity of a determination of prejudice”]; People v. Cahill
(1993) 5 Cal.4th 478, 501 [“the denial of the defendant’s right to a jury trial . . .

                                           50
involve[s] fundamental ‘structural defects’ in the judicial proceedings” (citation
omitted)].) “ ‘[I]f a court should undertake to deny to a defendant charged with a
felony the right of trial by jury, and after a hearing of the evidence render a
judgment of conviction, it cannot be doubted that such judgment should be set
aside even though there had been the clearest proof of guilt.’ ” (Cahill, at p. 490,
quoting People v. O’Bryan (1913) 165 Cal. 55, 65–66 (lead opn. of Sloss, J.).)
       In California, an effective waiver of the right to a jury trial requires that a
defendant’s waiver be express, voluntary, knowing, and intelligent. (Holmes,
supra, 54 Cal.2d at pp. 443–444 [waiver must be “express[ed] in words . . . and
will not be implied from a defendant’s conduct”]; Collins, supra, 26 Cal.4th at p.
305 [court may not accept a defendant’s waiver of a jury trial “unless it is knowing
and intelligent . . . as well as voluntary”].) In Ernst, we found that the failure to
obtain the defendant’s express waiver of his right to a jury trial required reversal.
(People v. Ernst (1994) 8 Cal.4th 441, 446.) In Collins, we held that the court’s
error of inducing an involuntary waiver from the defendant amounted to a
structural defect. (Collins, supra, 26 Cal.4th at p. 312.) Knowledge and
intelligence are required components of an effective waiver of jury trial and are
equally pivotal as the requirements that a waiver be express and voluntary. Hence,
a court’s failure to obtain a knowing and intelligent waiver falls within the limited
class of errors that infect the integrity of proceedings to such a degree that they are
reversible per se.
       The court obtained Daniels’s waivers of jury trial for guilt, special
circumstance determinations, and penalty immediately in succession after
conveying roughly the same information. Constitutional inadequacies, we find,
pervade the entire trial. Daniels was denied his fundamental right to a jury trial
under the state and federal Constitutions. We cannot attempt to assess the
prejudice Daniels suffered as a result of this deprivation. In accordance with

                                          51
precedent from both the high court and our court, we would reverse the judgment
of the superior court on all counts tried, on the basis of structural error arising
from Daniels’s ineffective waivers of jury trial. We respectfully dissent from the
judgment of the court, which affirms the guilt convictions for all counts tried and
the true findings of special circumstances.
       The record is even more bereft of support for the conclusion that Daniels’s
penalty phase waiver was valid. Any weight that could conceivably be accorded
to Daniels’s prior pleas, for example, would be diminished in an assessment of
whether there is support in the record to conclude that Daniels’s jury waiver at the
penalty phase was knowing and intelligent. Even supposing Daniels retained the
information received orally in connection with guilty pleas to burglary and drug
charges over 10 years prior, we are not persuaded there is an adequate basis to
presume Daniels’s knowledge that any particular jury attributes would necessarily
translate to the unique context of punishment determinations in capital trials.
       Although the court provided Daniels another opportunity to opt for a jury
trial right before the penalty phase, it did not describe any aspect of a jury’s role in
the penalty phase or otherwise add to what had been conveyed to Daniels earlier in
the trial. A defendant’s decision to waive the right to have a jury determine
whether he or she will be subjected to the death penalty is enormously
consequential, as “[t]he decision to waive the right to jury sentencing may deprive
a capital defendant of potentially life-saving advantages.” (Jells v. Ohio (1991)
498 U.S. 1111, 1114 (dis. opn. from cert. denial of Marshall, J.).) If it is
appropriate to question just how much generalized knowledge of the criminal jury
exists in a typical layperson drawn from the general public — and it is — such a
person is even less likely to understand the intricacies of the decisionmaker’s role
in the penalty phase of a capital trial. In contrast with the guilt phase, the
decisionmaker’s role at the capital penalty phase “is not merely to find facts, but

                                           52
also—and most important—to render an individualized, normative determination
about the penalty appropriate for the particular defendant—i.e., whether he should
live or die.” (People v. Brown (1988) 46 Cal.3d 432, 448.) “ ‘[O]ne of the most
important functions any jury can perform in making . . . a selection (between life
imprisonment and death for a defendant convicted in a capital case) is to maintain
a link between contemporary community values and the penal system.’ ” (Gregg
v. Georgia (1976) 428 U.S. 153, 181.)
       The federal Constitution imposes a “special ‘ “need for reliability in the
determination that death is the appropriate punishment.” ’ ” (Johnson v.
Mississippi (1988) 486 U.S. 578, 584.) The judicial duty to ensure a valid waiver
“is not to be discharged as a mere matter of rote, but with sound and advised
discretion, with an eye to avoid unreasonable or undue departures from that mode
of trial or from any of the essential elements thereof, and with a caution increasing
in degree as the offenses dealt with increase in gravity.” (Patton, supra, 281 U.S.
at pp. 312–313; accord, Martin, supra, 704 F.2d at pp. 272–273; see also U.S. v.
U.S. Dist. Court for E. Dist. of Cal. (9th Cir. 2006) 464 F.3d 1065, 1069 [U.S.
Supreme Court in Patton “emphasized the pivotal role of trial by jury in the
criminal context, particularly where the defendant is charged with a serious
crime”].) A societal interest in the integrity of the capital process may at times
outweigh a defendant’s stated preferences in controlling his or her own case. For
example, as discussed, ante, state law prevents any defendant from pleading guilty
to capital charges without consent of counsel, in light of “the state’s strong interest
in reducing the risk of mistaken judgments in capital cases and thereby
maintaining the accuracy and fairness of its criminal proceedings.” (Alfaro, supra,
41 Cal.4th at p. 1300.) In capital cases, the trial court must scrupulously discharge
its responsibility to protect the integrity of the judicial process and maintain
constitutional safeguards. We concur in the judgment of the court to find

                                          53
Daniels’s penalty phase waiver invalid, and we agree Daniels’s death judgment
must be reversed.

       E. Sentence of Death Imposed in Connection with Daniels’s Conviction
          of Second Degree Murder
       Count 21 charged Daniels with the murder of LaTanya McCoy and alleged
a multiple-murder special circumstance. (See § 190.2, subd. (a)(3).) The court
convicted Daniels of McCoy’s murder in the second degree and found true the
special circumstance. The court later sentenced Daniels to death on count 21, in
addition to imposing a death sentence on count 12, the first degree murder of
LeWayne Carolina committed while engaged in the commission of robbery and
burglary.
       Daniels argues, and the People agree, that the death sentence imposed for
the second degree murder of LaTanya McCoy was legally unauthorized. The
death penalty may only be imposed where the defendant has been convicted of
first degree murder and the factfinder has found true any charged special
circumstance. (§§ 190.1, subd. (a), 190.3, 190.4, subd. (a).) We have held that the
offense of second degree murder is not punishable by death. (People v. Thomas
(2012) 53 Cal.4th 771, 837.) Instead, the penalty for second degree murder of a
person other than a police officer is 15 years to life. (§ 190, subd. (a).)
       The court has already found that Daniels’s death judgment warrants
reversal on the basis of an invalid penalty phase waiver. Given that the sentence
imposed in connection with count 21 was unauthorized to begin with, we shall
resolve this claim by vacating that sentence and directing the trial court to issue an
amended abstract of judgment reflecting the appropriate sentence.
       F. Cumulative Error
       Daniels urges us to consider the cumulative effect of errors in his trial. A
majority of this court would hold that no error occurred affecting his guilt


                                          54
convictions or the true findings of special circumstances. Hence, Daniels’s claim
of cumulative error fails.




                                        55
                                 III. CONCLUSION
       We, the undersigned, agree that most of Daniels’s claims are unavailing.
But we cannot conclude from this record that the trial court’s acceptance of
Daniels’s jury waiver complied with the constitutional requirements that the
waiver must be knowing and intelligent. Because we find Daniels’s waiver of jury
trial was invalid in consideration of the totality of the circumstances, we would
reverse Daniels’s convictions with respect to all counts tried (counts 12–16 and
20–22), the true findings establishing the presence of special circumstances, and
his death sentence. Accordingly, we dissent from the court’s judgment today to
affirm the validity of Daniels’s jury trial waivers for the guilt phase and special-
circumstance determinations, and we concur in the reversal of Daniels’s death
judgment on the basis of an invalid penalty phase waiver.
       In all other respects, we would affirm.
                                                          CUÉLLAR, J.


WE CONCUR:

WERDEGAR, J.
LIU, J.




                                          56
      CONCURRING OPINION BY LIU, J. TO THE LEAD OPINION,
        CONCURRING AND DISSENTING IN THE JUDGMENT
                      OF THE COURT
       I agree with today’s lead opinion that David Scott Daniels, a capital
defendant proceeding without counsel, did not make a knowing and intelligent
jury trial waiver. The fact that Daniels repeatedly and “most emphatically” said he
understood what he was doing (conc. & dis. opn. of Corrigan, J., post, at pp. 15–
16) is of limited significance because there is no indication in the record of what
he understood. Similarly, although Daniels’s “manifest desire was to plead guilty”
(conc. opn. of Kruger, J., post, at p. 2), it does not follow that his jury trial waiver
was knowing and intelligent. Justice Kruger speculates that “while an express
advisement about the fundamental attributes of jury trial might have made even
clearer to defendant the protection that a jury might afford, there is every
indication that he did not want that protection at his trial on the substantive
charges — and that additional advisements on that point, if anything, would have
simply reinforced his resolve to waive a jury trial.” (Id. at pp. 3–4.) But how can
we conclude that Daniels “did not want that protection” and would have persisted
in admitting guilt, when the record contains no indication that he understood what
“that protection” consists of? Finally, although it is true that Daniels had been
advised by counsel in different proceedings a decade earlier and that the trial court
here told Daniels that a jury consists of members of the community, these
circumstances do not show that his jury trial waiver in this case was knowing and
intelligent.
       For the average reader (or writer) of judicial opinions, it is perhaps
elementary what a jury is and how it functions in a criminal trial. But we cannot
assume such knowledge among the general populace or even in “a literate high
school graduate.” (Conc. & dis. opn. of Corrigan, J., post, at p. 16.) Although
schoolchildren are “capable” of understanding the concept of a jury trial (People v.
Barrett (2012) 54 Cal.4th 1081, 1130 (conc. & dis. opn. of Liu, J.)), the state of
our citizenry’s actual knowledge of basic civics leaves much to be desired.
       One recent study found that roughly one-third of Americans cannot name a
single branch of government. (Annenberg Public Policy Center, Americans’
Knowledge of the Branches of Government Is Declining (Sept. 13, 2016)
<http://www.annenbergpublicpolicycenter.org/americans-knowledge-of-the-
branches-of-government-is-declining/> [as of Aug. 31, 2017].) Another study
reported that 75% of Americans cannot explain what the judiciary does and that
one in three native-born citizens would fail the civics portion of the U.S.
naturalization test. (Greene, Study: One in Three Americans Fails Naturalization
Civics Test (Apr. 30, 2012) U.S. News & World Report <https://www.usnews.
com/news/blogs/washington-whispers/2012/04/30/study-one-in-three-americans-
fails-naturalization-civics-test> [as of Aug. 31, 2017] [reporting on Xavier
University study].) In California, half of high school seniors cannot state the
function of the United States Supreme Court; their understanding of the structures
and functions of government is “modest, at best.” (Kahne et al., Constitutional
Rights Foundation, The California Survey of Civic Education (2005) pp. 4, 8.) I
would not assume that despite these glaring gaps in civic literacy, the average
American nonetheless has a clear understanding of the right to a jury trial. (But
see conc. & dis. opn. of Corrigan, J., post, at p. 19, fn. 5.)
       Judges have long recognized these shortcomings in the citizenry’s
knowledge of civics and the role of courts. Retired United States Supreme Court

                                            2
Justice Sandra Day O’Connor has called attention to the “steady decline” of civics
education over the past generation (O’Connor & Hamilton, A democracy without
civics? (Sept. 18, 2008) The Christian Science Monitor, at p. 9), with particular
concern for students’ understanding of “the importance of an independent
judiciary” (Singer, Trailblazing Justice Now Has Games on Docket, N.Y. Times
(Mar. 28, 2016) p. B1). Justice O’Connor is not alone. (See Cantil-Sakauye &
Padilla, Engage, protect your democracy, The Sacramento Bee (Sept. 17, 2015)
p. 7B [noting that “more than 20 percent of Californians typically do not report for
jury service when summoned” and urging California schools to get civics
education “back on track” by “teach[ing] students how our government works,
how the three branches provide checks and balances, and how to participate in our
democracy”].)
       There is an additional reason why courts cannot assume that laypeople
know the fundamental features of a jury trial: Those features vary from one
setting to the next. The unanimity requirement, for instance, has long been
considered an essential aspect of jury trials (3 Blackstone, Commentaries 375–
376), and under the California Constitution, criminal defendants are entitled to a
unanimous jury verdict (Cal. Const., art. I, § 16). But in civil cases, “three-fourths
of the jury may render a verdict.” (Ibid.) Moreover, although the Sixth
Amendment to the federal Constitution requires juror unanimity in federal
criminal cases, that federal constitutional requirement does not extend to state
courts. (See Apodaca v. Oregon (1972) 406 U.S. 404; McDonald v. City of
Chicago (2010) 561 U.S. 742, 766, fn. 14.) In fact, some states permit criminal
convictions with less-than-unanimous jury verdicts. (See Or. Const., art. I, § 11
[“[I]n the circuit court ten members of the jury may render a verdict of guilty or
not guilty, save and except a verdict of guilty of first degree murder, which shall
be found only by a unanimous verdict.”]; La. Const., art. I, § 17 [“A case in which

                                          3
the punishment is necessarily confinement at hard labor shall be tried before a jury
of twelve persons, ten of whom must concur to render a verdict.”].)
       The jury’s role in a capital case is particularly likely to be unfamiliar. The
defendant is unlikely ever to have experienced a capital trial (certainly this was
Daniels’s first), and the jury performs a unique function when considering whether
to render a death verdict. “Unlike its role at the guilt phase, the jury’s role in a
capital penalty trial ‘is not merely to find facts, but also — and most important —
to render an individualized, normative determination about the penalty appropriate
for the particular defendant — i.e., whether he should live or die.’ [Citations.]
This inherently ‘ “moral endeavor” ’ [citation], which is designed ‘ “to maintain a
link between contemporary community values and the penal system” ’ [citation],
renders a defendant’s decision to waive a jury trial at the penalty phase
particularly consequential.” (People v. Sivongxxay (2017) 3 Cal.5th 151, 212
(conc. & dis. opn. of Liu, J.).) The jury’s normative function as sentencer in a
capital trial is unusual and especially unlikely to be a matter of common
understanding. The record before us provides no indication that Daniels waived a
jury trial “ ‘ “ ‘with a full awareness both of the nature of the right being
abandoned and the consequences of the decision to abandon it.’ ” ’ ” (People v.
Collins (2001) 26 Cal.4th 297, 305 (Collins).)
       Instead of quoting this language in Collins as the standard by which we
assess whether a jury trial waiver is knowing and intelligent, Justice Corrigan cites
Adams v. U.S. ex rel. McCann (1942) 317 U.S. 269 and U.S. ex rel. Williams v.
DeRobertis (7th Cir. 1983) 715 F.2d 1174, and asserts that it is enough if the
defendant understands “ ‘that the choice confronting him was, on the one hand, to
be judged by a group of people from the community, and on the other hand, to
have his guilt or innocence determined by a judge.’ ” (Conc. & dis. opn. of
Corrigan, J., post, at p. 15.) But Collins is the controlling authority here, and I do

                                           4
not agree that simply knowing a jury is comprised of people from the community
amounts to a “ ‘ “ ‘full awareness’ ” ’ ” of the nature of the jury trial right.
(Collins, supra, 26 Cal.4th at p. 305.) It is true that Collins “invalidated the
defendant’s jury trial waiver for lack of voluntariness.” (Conc. & dis. opn. of
Corrigan, J., post, at p. 15, fn. 3.) But we have repeatedly applied Collins to assess
whether a jury trial waiver was knowing and intelligent. (See People v.
Sivongxxay (2017) 3 Cal.5th 151, 166, 171 (Sivongxxay); People v. Weaver (2012)
53 Cal.4th 1056, 1071–1072.)
       Finally, Justice Corrigan contends that the validity of Daniels’s jury trial
waiver follows from our recent decision in Sivongxxay. (Conc. & dis. opn. of
Corrigan, J., post, at pp. 14, 18, 22.) But the defendant in Sivongxxay proceeded
with the assistance of counsel, whereas Daniels did not. Our opinion in
Sivongxxay repeatedly emphasized the importance of this fact. (See Sivongxxay,
supra, 3 Cal.5th at p. 167 [“Although defendant is a Laotian refugee with no
formal education and limited English proficiency, he was represented by
counsel.”]; id. at p. 173, fn. 7 [“By contrast, because defendant, who was
represented by counsel at all pertinent times, had a right to a jury trial with regard
to the special circumstance allegation at the time he entered his jury waiver
[citation], his comprehensive waiver is properly understood as subsuming that
right.”]; id. at p. 174, fn. 8 [“[H]ere the relevant circumstances include not only
the colloquy, but also . . . the fact that defendant was represented by counsel.”]; id.
at p. 174 [Sivongxxay stated his desire to waive jury trial “through counsel”]; id.
at p. 188 [“Defendant personally entered what we have determined to be a
knowing and intelligent jury trial waiver, and did so with the assistance of
counsel.”]; id. at p. 189 [“Even though defendant was not told by the judge that a
jury would have to unanimously agree on a death sentence for such a sentence to
be imposed, he was . . . represented by counsel in connection with the jury

                                            5
waiver.”].) Daniels does not argue that unrepresented defendants are categorically
barred from waiving their right to a jury trial. His contention is that the absence of
counsel is a significant factor in assessing whether a jury trial waiver is knowing
and intelligent.
       In sum, the record here shows that Daniels was intent on waiving a jury
trial. But it does not show that he made the decision, as to the guilt phase or the
penalty phase, “ ‘ “ ‘with a full awareness both of the nature of the right being
abandoned and the consequences of the decision to abandon it.’ ” ’ ” (Collins,
supra, 26 Cal.4th at p. 305.)
                                                  LIU, J.
I CONCUR:
CUÉLLAR, J.




                                          6
CONCURRING AND DISSENTING OPINION BY CORRIGAN, J. TO THE
    LEAD OPINION, CONCURRING AND DISSENTING IN THE
               JUDGMENT OF THE COURT

       I concur in the court’s judgment affirming all guilty verdicts and all true
findings against defendant David Scott Daniels. I also concur in the court’s
judgment insofar as it vacates the unauthorized sentence of death in connection
with count 21 and directs the superior court to amend the abstract of judgment to
reflect a sentence of 15 years to life on that count. I join in Justice Cuéllar’s lead
opinion setting forth the statement of facts (part I) and its resolution of all issues
except part II.D.
       I respectfully dissent from the court’s reversal of the death judgment for the
murder of LeWayne Carolina (count 12). I would conclude that Daniels
knowingly and intelligently waived his right to a jury trial in favor of a bench trial
for both the guilt and the penalty phases.
       “The Sixth Amendment teaches that we should accord the competent
defendant, even in a capital case, . . . control over his destiny” by allowing him to
forgo representation by counsel and the presentation of a defense. (People v.
Stansbury (1993) 4 Cal.4th 1017, 1063 (Stansbury), reversed on another ground in
Stansbury v. California (1994) 511 U.S. 318, 326–327; accord, People v. Bloom
(1989) 48 Cal.3d 1194, 1228 (Bloom).) Facing two counts of murder with special
circumstances and numerous other serious felony counts, Daniels expressed a
desire to plead guilty to all charges. When his counsel refused to agree, Daniels
moved to represent himself. The motion was granted, and Daniels pleaded guilty
to vehicle theft, carjacking, and 11 counts of robbery. Informed that he could not
plead guilty to the murders, which carried a possible verdict of death, or to other
related counts, Daniels waived his right to a jury trial in favor of a bench trial for
both the guilt and penalty phases. He repeatedly declined the assistance of a
defense investigator or advisory counsel. He presented no evidence, cross-
examined no witnesses, and made no argument on his behalf. The trial court
convicted him of all remaining counts and entered a judgment of death.
        The record demonstrates that Daniels personally and expressly waived the
right to jury trial on the issues of guilt, special circumstances, and penalty.
Daniels now contends, however, that the record does not demonstrate his waiver
was knowing and intelligent. He faults the trial court for failing to advise him that
a jury consists of 12 members, that the jurors must be impartial, and that they must
unanimously agree in order to reach a verdict. He also assigns as error the trial
court’s failure to advise him about the consequences of non-unanimity. He claims
that his penalty phase waiver was invalid “for the same reasons that his earlier
waiver of a jury at the guilt phase was invalid” and for the additional reason that
he was not told his waiver of a jury trial would result in the “loss of the right to an
independent trial court review of the penalty imposed by a jury.” Daniels asserts
that he received no advisements from counsel before discharge regarding the jury
trial right.
        Daniels’s arguments are unpersuasive. As recently as two months ago, we
reaffirmed that that there is no “rigid formula or particular form of words that a
trial court must use in taking a jury waiver.” (People v. Sivongxxay (2017) 3
Cal.5th 151, 169 (Sivongxxay).) We rejected a rule “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.) Here, Daniels

                                           2
personally entered an express waiver of his right to jury trial three separate times:
twice before trial began and a third time before the start of the penalty phase.
During the colloquy, the trial court informed Daniels that he had a right to be tried
by a jury made up of members of the community and that, if he waived jury trial,
the court alone would determine the issues of guilt, special circumstances, and
penalty. Daniels stated no fewer than 15 times that he understood the jury trial
right he was giving up. He unwaveringly assured the court that he understood the
nature of the proceedings and the decisions he had made. He specifically
expressed his confidence that he would receive a fair trial before the judge who
would hear his case. He was no stranger to criminal proceedings. Approximately
a decade before, when represented by counsel, he had thrice pleaded guilty after
being informed that he was entitled to a unanimous verdict of 12 jurors on the
question of guilt. The totality of these circumstances demonstrates a knowing and
intelligent waiver of the jury trial right.
                                  I. BACKGROUND
       Because the outcome of this case turns heavily on the colloquies between
Daniels and the court, they are set forth in detail here. On August 7, 2000, before
the preliminary hearing, Daniels informed the court that he “wish[ed] to plead
guilty.” When his counsel interjected, “He doesn’t mean that,” Daniels retorted, “I
know exactly what I’m saying. We discussed this already.” Counsel told the
court that she had advised Daniels to enter not guilty pleas so that the case could
proceed to preliminary hearing. Daniels responded, “I understand exactly what
she is saying. What I am saying [is] I am prepared to enter a plea of guilty.” The
court replied that Daniels could not enter a guilty plea without his counsel’s
consent. Defense counsel proposed a sentence of life without the possibility of
parole in exchange for defendant’s guilty plea, but the prosecutor refused. The



                                              3
court then entered pleas of not guilty. Following a preliminary hearing, Daniels
was held to answer on 22 of 24 charges.
       On December 7, 2000, after Daniels was arraigned on the information, he
filed a letter requesting that he be allowed to represent himself and to plead guilty
to the charges. In the letter, he stated, “I fully understand that I am charged with
the Capitol [sic] offense of Murder penal code section 187 with the special
circumstances.” Daniels also filed a written motion in support of his request. On
December 20, the court questioned Daniels about his choice to waive counsel. It
advised him that he was facing the death penalty and that, even if he chose self-
representation, he could not plead guilty to the capital charges. Daniels said he
understood. The court admonished Daniels about his right to be represented by
counsel and the risks of self-representation. Daniels affirmed that he understood
each of the court’s admonishments and that he wanted to exercise his “Faretta”
right. Daniels executed a written waiver, and the court granted his request to
proceed pro se. When asked if he wanted the assistance of advisory counsel,
Daniels declined. The court asked, “Are you sure of that?” and Daniels
responded, “Positive.”
       Two weeks later, on January 5, 2001, Daniels appeared before a different
judge for trial. Again, the court extensively discussed Daniels’s desire to represent
himself. After reviewing the charges, the court emphasized that they were “very,
very serious” and that the special circumstance allegations exposed him to the
death penalty. Daniels said that he understood. The court warned that the
prosecutor was an expert in capital litigation, it is unwise to elect self-
representation, and Daniels would be at a “severe disadvantage.” The court
likened it to “a flag football team going up against the Tennessee Titans.” Daniels
stated that he understood and that “I don’t look at it as a disadvantage.” The court
emphasized that Daniels would have to conduct himself in a lawyerly fashion and

                                           4
that he would receive no special assistance from the court. It also stated that
Daniels would forgo an ineffective assistance of counsel claim on appeal. Daniels
indicated that he understood everything the court had explained. The court asked
Daniels if he was “thinking clearly.” Daniels replied, “Yes, I am” and affirmed
that he knew what he was doing. Daniels said that he was 33 years old, had
graduated from Galileo High School in San Francisco, and was literate. He had
previously worked as a mailroom clerk which required him to read and understand
documents. He did not suffer from mental illness and was not under the influence
of any substance that would impair his judgment. He made his request freely and
voluntarily, without any threats or pressure. The court then asked Daniels if he
was “satisfied that you know what you are doing?” to which he replied, “Yeah.”
Daniels declined the assistance of advisory counsel. The court took a 15-minute
recess to allow Daniels to think about his decision. When proceedings resumed,
the court asked Daniels if he felt capable of presenting a defense on his own
behalf, to which he replied, “Yes, I do.” The court then found that Daniels had
made a knowing, intelligent, and voluntary waiver of his right to counsel and
confirmed his pro se status. Daniels again executed a written waiver of his right to
counsel.
       The court then asked Daniels if he wished to proceed “by way of jury trial
or by way of court trial.” Daniels replied, “Court trial.” The following colloquy
ensued:
       “THE COURT: Are you satisfied that that’s what you want to do?
       “MR. DANIELS: Yes.
       “THE COURT: Do you understand that you have an absolute right to
proceed by way of jury trial both in the guilt phase and at [the] penalty phase, if
there is a penalty phase, if you want to do that? Do you understand me?
       “MR. DANIELS: Yes.

                                          5
       “THE COURT: What you are telling me then is that you wish to waive
your right to a jury trial in the guilt phase and in the penalty phase which basically
means if there is [sic] two phases, you will not have a jury determine your fate, but
rather the Court will make certain findings based upon what you have been
charged with? Do you understand that?
       “MR. DANIELS: I understand.
       “THE COURT: And more specifically in the posture that we are presently
in, that I will be the Judge that will make those determinations. Do you
understand that?
       “MR. DANIELS: I understand.
       “THE COURT: Do you understand that if you go by way of the court trial
rather than jury trial, I will decide whether the prosecution has proven its case
beyond a reasonable doubt in the guilt phase of the trial, it will be my job to
determine whether you are guilty or not guilty of the charges and allegations made
against you? Do you understand that?
       “MR. DANIELS: I understand.
       “THE COURT: Do you understand that I will determine whether the
special circumstances are true or not true? Do you understand that?
       “MR. DANIELS: Yes.
       “THE COURT: Do you understand if I find you guilty of murder, of
special circumstances, in the guilt phase of the trial, I will also determine whether
the punishment is life without the possibility of parole or the death penalty in the
penalty phase of the trial? You understand that?
       “MR. DANIELS: Yes, I understand.
       “THE COURT: Have you understood everything that I have told you
relative to your right to proceed by way of jury trial or by way of court trial?
       “MR. DANIELS: Yes.

                                          6
       “[THE PROSECUTOR]: If I could just interject one thing. You did touch
on it, but he would also have the right to have the jury determine the truth or not
truth of the special circumstances. I think you did mention that.
       “THE COURT: Yes. If you waived jury, then the jury will not determine
the truth and validity of the special circumstances, that will be my job to determine
whether they are true or not true. Do you understand that?
       “MR. DANIELS: I understand.”
       Daniels confirmed that he was waiving his right to jury trial of his own free
will, he had not received any threats or promises, and he was not under the
influence of any substance that would cloud his judgment. The court then asked,
“Do you know what you are doing?” to which Daniels replied, “Yes.” After
obtaining a waiver from the People, the court again asked Daniels, “Do you know
what you have just done, sir?” to which Daniels again replied, “Yes.” The court
found a knowing, intelligent, and voluntary waiver of the right to jury trial.
       Daniels declined the services of a defense investigator. He then stated his
desire to plead guilty to the noncapital counts and to enter pleas admitting the truth
and validity of two prior convictions. The court obtained oral waivers of Daniels’s
constitutional rights, including the right to jury trial:
       “THE COURT: Although I reference jury trial, you have a right not only to
— these charges, you have a right to a jury trial and a court trial, but my
understanding is you don’t want either one of those, you wish to plead guilty and
to admit, right?
       “MR. DANIELS: Yes.
       “THE COURT: So when I reference just jury trial, is the understanding
between the People and you, Mr. Daniels, that although I just say jury trial, that it
also pertains to court trial rights? Do you understand that?
       “MR. DANIELS: Yes.

                                            7
       “THE COURT: Now, is there anything at all that I have done or said so far
that you do not understand?
       “MR. DANIELS: No.
       “THE COURT: All right. You have the right to a jury trial. Do you
understand that?
       “MR. DANIELS: Yes.
       “THE COURT: Do you realize that by pleading guilty or admitting the
truth and validity of the prior felony convictions alleged against you[,] you will
give up your right to a jury trial as to these matters?
       “MR. DANIELS: Yes.
       “THE COURT: And do you give your right up to a jury trial as it pertains
to these matters?
       “MR. DANIELS: I do.”
       On January 16, 2001, court trial began on the remaining charges. Before
the prosecutor’s opening statement, the court revisited Daniels’s waivers of the
right to counsel and jury trial. The court offered to appoint counsel “even at this
late date,” but Daniels declined. The court offered Daniels the services of an
investigator and advisory counsel; again Daniels declined. The court then noted,
“We also talked about your right to a jury trial with members of these communities
that would determine whether or not — the question of guilt or innocence.”
(Italics added.) Daniels responded that he remembered discussing this with the
court. The following colloquy transpired:
       “THE COURT: And you would have a right to a jury trial, certainly in
terms of the guilt phase, and if we get beyond the guilt phase, you would have that
same right if you wish to have that right as it pertains to the question of penalty.
[¶] Do you understand what I am telling you at this stage?
       “[MR. DANIELS]: Yes, Your Honor.

                                           8
       “THE COURT: And despite that, it is still your request and still your view
that you wish to waive any jury in this matter and proceed by way of court trial, is
that true?
       “[MR. DANIELS]: Yes, I do, Your Honor.
       “THE COURT: Do you understand fully that what this means is that I will
try the question of your guilt or your innocence. [¶] Do you understand that?
       “[MR. DANIELS]: I understand, Your Honor.
       “THE COURT: And if, in fact, we go to a penalty phase, that I will, in fact,
try the question about whether or not aggravating factors outweigh those
mitigating factors. [¶] Do you understand — do you understand that?
       “[MR. DANIELS]: I do.
       “THE COURT: And despite me telling you all of this, you still wish to
proceed in the legal posture that you are presently in?
       “[MR. DANIELS]: Yes, Your Honor. I do.”
       During the guilt phase, Daniels presented no evidence or argument and
engaged in no cross-examination. The trial court convicted him on all counts and
found true all special allegations and enhancements.
       On January 19, before the penalty phase trial began, the prosecutor
informed the court that he had spoken to Daniels and had “advised him that . . . he
does have the right to present mitigating evidence in his own defense if he
wishes.” The prosecutor reported that he had offered Daniels the services of an
investigator to help him present a case in mitigation, but Daniels had declined.
The court told Daniels he faced “the gravest consequences in the criminal law in
terms of punishment.” The court explained that, at this phase of the trial, “the
District Attorney is going to present what is called aggravating factors” and that
Daniels would “have the right to present what is known as mitigating evidence
that the [court] . . . would consider relative to aggravating factors versus mitigating

                                          9
factors.” Based on this evidence, the court would “consider whether or not you
should be imprisoned for the rest of your life without the possibility of parole, or
whether you shall suffer death.” The court offered to “stop these legal
proceedings, appoint a lawyer, appoint advisory counsel, appoint an investigator
for you, and give them ample time to prepare before we enter this penalty phase.”
Daniels declined, stating, “Your Honor, I respect and thank you for being
concerned, that you are the Judge James L. Long, and I trust and have faith in you,
whatever your decision is.” The court replied, “Do you realize, although you have
waived your right to a jury trial, that I would empanel a jury to try these questions
in the penalty phase, you have that right, but heretofore you have waived that
right, and said you wanted a court trial. [¶] Do you still feel that way?” Daniels
responded, “I do.” The court then observed: “Now, Mr. Daniels, I have watched
you in terms of your demeanor, your manner, physical movement, your verbal
statements, looking for any indication that you are not competent within the
meaning of California law. [¶] I have watched you carefully. I have asked you
earlier do you understand the nature of these proceedings?” Daniels replied that
he did, and stated that he was capable of presenting a penalty phase defense.
       Daniels in fact presented no defense or argument. He apologized to the
victims’ families.
       In a statement to the probation officer after trial, Daniels explained that “he
chose not to fight the case, choosing to plead guilty to the majority of the charges,
to put this matter behind him and to bring some closure to this case. He felt it
would be unfair to the victims and their surviving family members for him to
attempt to fight these charges, knowing he was guilty of each of the crimes.”
                                 II. DISCUSSION
       The Sixth Amendment guarantees a criminal defendant “the right to a
speedy and public trial, by an impartial jury . . . .” (U.S. Const., 6th Amend.)

                                          10
Article I, section 16 of the California Constitution guarantees to a defendant
accused of a felony a jury of 12 persons and a unanimous verdict. (See also
People v. Collins (1976) 17 Cal.3d 687, 693.)
       A criminal defendant may waive the right to a jury trial in favor of a bench
trial. (Patton v. United States (1930) 281 U.S. 276, 299, 312; Cal. Const., art. I,
§ 16.) The question of an effective waiver of a federal constitutional right is
governed by federal standards. (People v. Howard (1992) 1 Cal.4th 1132, 1175
(Howard).) “[T]he 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.”
(United States v. Ruiz (2002) 536 U.S. 622, 629.) Additionally, the California
Constitution requires that a criminal jury trial waiver be “by the consent of both
parties expressed in open court by the defendant and the defendant’s counsel.”
(Cal. Const., art. I, § 16.)
       A proper advisement and waiver of the jury trial right on the record
generally establishes a defendant’s voluntary and intelligent admission. (People v.
Mosby (2004) 33 Cal.4th 353, 356 (Mosby).) Our inquiry is not limited to the
waiver colloquy, however. The test of a valid waiver ultimately turns, not on
whether specific warnings or advisements were given, but whether “the record
affirmatively shows that [the waiver] is voluntary and intelligent under the totality
of the circumstances.” (Howard, supra, 1 Cal.4th at p. 1175 [guilty plea waiver];
accord, Sivongxxay, supra, 3 Cal.5th at p. 166 [waiver of jury trial]; People v.
Lawley (2002) 27 Cal.4th 102, 140 (Lawley) [waiver of counsel].) We
independently examine the entire record to determine whether this standard has
been met. (People v. Burgener (2009) 46 Cal.4th 231, 241 (Burgener); People v.
Doolin (2009) 45 Cal.4th 390, 453.)

                                         11
       Daniels contends that his jury trial waiver was invalid because the court did
not advise him that a jury is made up of 12 members who must be impartial and
must unanimously agree on a verdict; nor did it explain the consequences of a
hung jury. His arguments are contrary to settled precedent.
       We have consistently eschewed any rigid formula or particular form of
words that a trial court must use to ensure that a jury trial waiver is knowing and
intelligent. (Sivongxxay, supra, 3 Cal.5th at pp. 169–170; see Lawley, supra, 27
Cal.4th at p. 140 [discussing waiver of the right to counsel]; see also Iowa v. Tovar
(2004) 541 U.S. 77, 88 [same].) The court need not employ legalese or
“ ‘talismanic phrase[s].’ ” (Howard, supra, 1 Cal.4th at p. 1180.) Instead, like the
United States Supreme Court, we take a “ ‘pragmatic approach to the waiver
question’ ” that considers what would be “ ‘obvious to an accused’ ” who is
executing the waiver. (Tovar, at p. 90, cited with approval in Burgener, supra, 46
Cal.4th at p. 242). “The information a defendant must possess in order to make an
intelligent election . . . will depend on a range of case-specific factors, including
the defendant’s education or sophistication, the complex or easily grasped nature
of the charge, and the stage of the proceeding.” (Tovar, at p. 88.) “The standard
was and remains whether the [waiver] represents a voluntary and intelligent choice
among the alternative courses of action open to the defendant.” (North Carolina
v. Alford (1970) 400 U.S. 25, 31 [discussing guilty plea waiver].)
       Daniels was advised that he had a right to be tried by a jury drawn from
members of the community, and that if he waived jury trial, the court alone would
determine the issues of guilt, special circumstances, and penalty.1 This is the

1       In one of the several pretrial colloquies, the court explicitly referred to the
“right to a jury trial with members of these communities that would determine . . .
the question of guilt or innocence” and “that same right . . . as it pertains to the
                                                             (footnote continued on next page)


                                           12
essence of the jury trial right. “The purpose of the jury trial . . . is to prevent
oppression by the Government. ‘Providing an accused with the right to be tried by
a jury of his peers gave him an inestimable safeguard against the corrupt or
overzealous prosecutor and against the compliant, biased, or eccentric judge.’
[Citation.] Given this purpose, the essential feature of a jury obviously lies in the
interposition between the accused and his accuser of the commonsense judgment
of a group of laymen, and in the community participation and shared responsibility
that results from that group’s determination of guilt or innocence.” (Williams v.
Florida (1970) 399 U.S. 78, 100, quoting Duncan v. Louisiana (1968) 391 U.S.
145, 156.) Conversely, the primary consequence of waiving the right to a jury
trial is that the defendant “no longer has the buffer of the judgment of his fellow
citizens between him and the imposition of punishment by the state, but instead his
fate is in the hands of a state official.” (U.S. ex rel. Williams v. DeRobertis (7th
Cir. 1983) 715 F.2d 1174, 1178 (DeRobertis).) Here, repeated admonitions
consistently stressed that court and jury trials were different. Daniels was told
again and again that, if he waived his right to a jury, the court alone would decide




(footnote continued from previous page)
question of penalty.” (Italics added.) After being so advised, Daniels again
waived his right to a jury trial.
       My colleagues in the plurality downplay the court’s reference to members
of the community, noting that the trial court stated it had previously discussed the
point with Daniels when in fact it had not. My colleagues infer that Daniels’s
agreement with the court suggests he did not fully comprehend the previous
admonitions. (Conc. & dis. opn. of Cuéllar, J., ante, at pp. 37‒38.) This
interpretation strains credulity. Daniels’s failure to challenge the court’s
representation of the previous discussion instead tends to demonstrate his basic
understanding from the outset that jurors are drawn from the community. He
certainly did not express confusion or surprise.



                                           13
whether the charges and special allegations had been proven and, if so, what
sentence Daniels would receive.
       The court was not constitutionally required to go further and enumerate
specifics, such as that a jury is made up of 12 members of the community, that the
jury members must be impartial, and that their verdict must be unanimous. The
high 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 . . . .’ ” (Sivongxxay, supra, 3 Cal.5th at p. 168,
quoting State v. Rizzo (Conn. 2011) 31 A.3d 1094, 1116.) Recently, we observed
in Sivongxxay that this court has “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, at p. 168.) While
it may be better practice for the trial court to advise the defendant of basic jury
trial mechanics,2 Sivongxxay emphasized that “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.” (Sivongxxay, at p. 170.) We
have never imposed a higher standard for a knowing and intelligent waiver under
the state Constitution than that established by the United States Supreme Court.
(See Sivongxxay, at p. 166; People v. Collins (2001) 26 Cal.4th 297, 304–305.)
       There is no requirement that a colloquy be complicated in order to be
constitutional. Indeed, “[t]he concept of judgment by one’s peers is probably


2      Sivongxxay identified the following basic mechanics: “(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.” (Sivongxxay, supra, 3 Cal.5th at
p. 169.)



                                           14
implicit, for most persons, in the term ‘jury trial’ itself.” (DeRobertis, supra, 715
F.2d at p. 1180, fn. 2.) In DeRobertis, the Seventh Circuit upheld a jury trial
waiver as knowing and intelligent where the defendant “understood that the choice
confronting him was, on the one hand, to be judged by a group of people from the
community, and on the other hand, to have his guilt or innocence determined by a
judge.” (Id. at p. 1180.) Daniels, too, was told these basic facts on three separate
occasions during the trial, and said that he understood them no fewer than 15
times. At one point Daniels declared, “Your Honor, I respect and thank you for
being concerned, that you are the Judge James L. Long, and I trust and have faith
in you, whatever your decision is.” This record amply demonstrates that Daniels
understood the choice he was making: whether “he trusts the judgment of his
fellow citizens with his fate, or if he would rather entrust it to the judgment of a
solitary state judicial officer.” (DeRobertis, at p. 1180.)3 There is absolutely “no


3       Justice Liu characterizes DeRobertis as out of step with our precedent.
(Conc. & dis. opn. of Liu, J., ante, at pp. 4–5.) Not so. We recently cited that case
with approval for the proposition that a jury waiver may be knowing and
intelligent notwithstanding the lack of specific advisements about the contours of
the right. (Sivongxxay, supra, 3 Cal.5th at p. 168.) By contrast, the case Justice
Liu relies on, People v. Collins, supra, 26 Cal.4th 297, invalidated the defendant’s
jury trial waiver for lack of voluntariness. (Id. at pp. 306–309; see conc. & dis.
opn. of Liu, J., ante, at pp. 4–5.) Collins had no occasion to address what
circumstances demonstrate a knowing and intelligent jury trial waiver, nor did it
purport to do so.
        My colleagues in the plurality attempt to distinguish DeRobertis on the
ground that the defendant in that case was represented by counsel while Daniels
was not. I discuss this fact in further detail below. Here, I note that my colleagues
suggest DeRobertis “reinforces an important principle: 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 . . . .” (Conc. & dis. opn. of
Cuéllar, J., ante, at p. 44.) Notably, however, the Seventh Circuit accepted the
defendant’s representation, supported by affidavit, that counsel had not informed
him of his right to participate in jury selection and his right to be convicted only
                                                            (footnote continued on next page)


                                          15
confusion on defendant’s part” regarding his waiver. (Lawley, supra, 27 Cal.4th at
p. 142.) Tellingly, Daniels does not challenge the verdicts based on his pleas of
guilty, which also encompassed a waiver of the right to trial by jury. (See Boykin
v. Alabama (1969) 395 U.S. 238, 243.)
        My colleagues in the plurality dismiss Daniels’s repeated affirmations that
he understood his right to a jury trial and the consequences of forgoing it with the
observation that “ ‘You don’t know what you don’t know.’ ” (Conc. & dis. opn.
of Cuéllar, J., ante, at p. 39.) But a review of the entire record casts no doubt on
Daniels’s understanding. He was a literate high school graduate who had been
gainfully employed. He showed some legal sophistication by filing a written
motion to represent himself and referring to his “Faretta” right. He spoke most
emphatically about his ability to comprehend the proceedings. When his counsel
questioned his desire to plead guilty, he retorted, “I know exactly what I’m saying.
We discussed this already.” He assured the court that he “fully underst[ood]” the
charges against him. He told the court he was “positive” that he did not need the
assistance of advisory counsel. He emphasized his confidence that the court
would give him a fair trial. He had repeated opportunities to ask questions or
express reservations. He did neither. At one point, the court observed that it had


(footnote continued from previous page)
upon a substantial majority vote of the jurors. (DeRobertis, supra, 715 F.2d at pp.
1177, 1181.) It held that “counsel does not have to inform a client of all of the
legal and procedural knowledge which forms the basis of his professional advice.”
(Id. at p. 1182, italics added.) Instead, what the DeRobertis court found significant
was that counsel had advised his client to waive a jury trial, and that the defendant
had followed that advice. (Id. at pp. 1180, 1182–1183.) While Daniels did not
have counsel’s advice, he was aware of the core aspects of his choice. It is also
worth noting that counsel’s absence resulted from Daniels’s affirmative choice to
represent himself as he was constitutionally entitled to do. (Faretta v. California
(1975) 422 U.S. 806, 819 (Faretta).)



                                          16
carefully watched Daniels’s “demeanor, [his] manner, physical movement, [his]
verbal statements, looking for any indication that [he was] not competent within
the meaning of California law,” and noted none. In the words of the high court,
“if the record before us does not show an intelligent and competent waiver . . . by
a defendant who demanded again and again that the judge try him, and who in his
persistence of such a choice knew what he was about, it would be difficult to
conceive of a set of circumstances in which there was such a free choice by a self-
determining individual.” (Adams v. U.S. ex rel. McCann (1942) 317 U.S. 269, 281
(Adams).)
       Additionally, Supreme Court precedent teaches that a knowing and
intelligent waiver of the jury trial right can depend as much on tactics as on the
contours of the right. In Adams, supra, 317 U.S. 269, a case involving a self-
represented defendant, the court observed that “[t]he less rigorous enforcement of
the rules of evidence, the greater informality in trial procedure—these are not the
only advantages that the absence of a jury may afford to a layman who prefers to
make his own defense. In a variety of subtle ways trial by jury may be restrictive
of a layman’s opportunities to present his case as freely as he wishes. And since
trial by jury confers burdens as well as benefits, an accused should be permitted to
[forgo] its privileges when his competent judgment counsels him that his interests
are safer in the keeping of the judge than of the jury.” (Id. at p. 278.) Here,
Daniels elected self-representation and pleaded guilty to all allowable charges. As
to the remaining charges, he requested a court trial4 and presented no defense or

4       My colleagues in the plurality state that Daniels “did not ask about waiving
a jury” and that “it was the judge who broached the issue.” (Conc. & dis. opn. of
Cuéllar, J., ante, at p. 36.) To the extent they suggest Daniels was cajoled into the
idea, the record establishes otherwise. The actual exchange was as follows: “THE
COURT: The other question I might raise with you is do you intend to proceed in
                                                           (footnote continued on next page)


                                         17
argument at the guilt or penalty phase of that trial, as was his right. (Stansbury,
supra, 4 Cal.4th at p. 1063; Bloom, supra, 48 Cal.3d at p. 1228.) He later
explained to the probation officer that he chose this course for reasons that were
significant to him. He wanted closure, and “felt it would be unfair to the victims
and their surviving family members for him to attempt to fight these charges,
knowing he was guilty of each of the crimes.” The record shows Daniels had been
considering his approach to the case for several months and had discussed his
wishes with counsel. We have long recognized that a defendant is the master of
his own fate, even in a capital case, and that the court cannot “forc[e] an unwilling
defendant to accept representation or to present an affirmative penalty defense.”
(Bloom, at p. 1228; accord, Stansbury, at p. 1063.) Given Daniels’s expressed
desire to be convicted and punished, it strains credulity to suggest that his jury trial
waiver would have been materially more informed had he been given more detail.
        Daniels’s own experience with the criminal justice system also supports
this conclusion. As the court noted in Parke v. Raley (1992) 506 U.S. 20, prior
criminal experience is “relevant to the question whether he knowingly waived
constitutional rights.” (Id. at p. 37.) Our case law is in accord. (Sivongxxay,
supra, 3 Cal.5th at p. 167; Mosby, supra, 33 Cal.4th at p. 365.) On three occasions
between 1988 and 1991, Daniels entered guilty pleas in San Francisco Superior
Court while represented by counsel. Each time counsel informed Daniels in open
court that he could not be convicted unless all 12 jurors agreed that the prosecution



(footnote continued from previous page)
terms of the guilt phase, and if there is a penalty phase, by way of jury trial or by
way of court trial? [¶] MR. DANIELS: Court trial.” (Italics added.) By
advising the self-represented defendant of his options, the court in no way initiated
a waiver, or intimated that Daniels should choose one option over the other.



                                          18
had proved his guilt beyond a reasonable doubt. Each time, counsel prefaced the
remarks by directly addressing Daniels and telling him it was important for him to
listen. And each time, after counsel’s advisements, Daniels confirmed that he had
heard the admonishments.5
       Counsels’ advisements to Daniels about the right to a unanimous verdict by
12 jurors in the context of his guilty pleas are relevant to show Daniels’s
understanding of that same right vis-à-vis the decision to proceed by court trial.
(Sivongxxay, supra, 3 Cal.5th at p. 167.) Although the admonishments occurred a
decade or more before this trial, the requirement of a unanimous verdict by 12
jurors is straightforward, and Daniels’s behavior during the current proceedings
gives us no reason to believe that he had forgotten it. Notably, Daniels himself has
never claimed such ignorance, either at the trial level or on appeal. My


5      For this reason, it is beside the point that many Americans do not have even
a basic understanding of civics. (Conc. & dis. opn. of Liu, J., ante, at pp. 2–3.)
Daniels was no neophyte to the workings of the criminal justice system. He
received an individualized tutorial on the topic in San Francisco’s Hall of Justice.
       Moreover, the relevant studies documenting this point are too generic to be
illuminating. (Conc. & dis. opn. of Liu, J., ante, at pp. 2–3.) The studies note
such things as (1) 31 percent of Americans cannot name a single branch of
government (Annenberg Public Policy Center, Americans’ Knowledge of the
Branches of Government Is Declining (Sept. 13, 2006)
<http://www.annenbergpublicpolicycenter.org/americans-knowledge-of-the-
branches-of-government-is-declining/> [as of Aug. 31, 2017]); (2) 75 percent of
Americans do not know the function of the judicial branch (Greene, Study: One in
Three Americans Fails Naturalization Civics Test (Apr. 30, 2012) U.S. News &
World Report <https://www.usnews.com/news/blogs/washington-whispers/
2012/04/30/study-one-in-three-americans-fails-naturalization-civics-test> [as of
Aug. 31, 2017]); and (3) 50 percent of high school seniors cannot state the
function of the United States Supreme Court (Kahne et. al., Constitutional Rights
Foundation, The California Survey of Civic Education (2005) p. 8). While these
findings relate generally to the topic of the courts, they do not specifically address
the average American’s understanding of a jury trial.



                                         19
colleagues in the plurality imagine the possibility of confusion which Daniels
himself has nowhere asserted. (Conc. & dis. opn. of Cuéllar, J., ante, at pp. 37–
40, 49‒50.)
       Daniels further attributes significance to the fact that he waived his jury
trial right in this case without the assistance of counsel. Such assistance is
undoubtedly a relevant consideration in finding a jury trial waiver to be knowing
and intelligent. (Adams, supra, 317 U.S. at p. 277.) Counsel may explain the
features of a jury trial, the nuances of jury selection, how a jury is likely to view
the facts of the case, and the possibility of a mistrial. Nonetheless, it is well
established that a self-represented defendant may validly waive a jury trial without
the guiding hand of counsel. (Id. at pp. 275–280). The fact that a defendant
“lack[s] ‘a full and complete appreciation of all of the consequences flowing’ from
his waiver . . . does not defeat the State’s showing that the information it provided
to him satisfied the constitutional minimum.” (Patterson v. Illinois (1988) 487
U.S. 285, 294.) The fact also remains that Daniels affirmatively and repeatedly
declined the assistance of counsel.
       Whether the defendant is represented or not, the trial court’s role is the
same. The court must satisfy itself that the defendant’s waiver of his
constitutional rights is knowing, intelligent, and voluntary. (See Adams, supra,
317 U.S. at pp. 277–278, 281.) But it need not do more. “The general rule is that
a trial court ordinarily is not required to give any advisement to a self-represented
defendant who chooses to represent himself or herself after knowingly,
intelligently, and voluntarily forgoing the assistance of counsel.” (People v.
Barnum (2003) 29 Cal.4th 1210, 1214.) Barnum considered whether the trial
court was required to advise a self-represented defendant of the privilege against
self-incrimination before the defendant was called as a witness by the prosecution
or testified on his own behalf. (Id. at pp. 1217–1225.) A long-standing Court of

                                          20
Appeal rule had imposed such a duty based on the logic that “ ‘[w]hen a defendant
goes to trial upon a charge of a criminal nature without the benefit of counsel, it is
the duty of the court to be alert to protect the defendant’s rights.’ ” (Killpatrick v.
Superior Court (1957) 153 Cal.App.2d 146, 149.) In rejecting this rule, Barnum
held that “a defendant who chooses to represent himself or herself after
knowingly, intelligently, and voluntarily forgoing the assistance of counsel
assumes the risk of his or her own ignorance, and cannot rely upon the trial court
to make up for counsel’s absence.” (Barnum, at p. 1224, italics added.) This is
true even where fundamental constitutional rights are at issue. (Id. at pp. 1222–
1224.) My colleagues in the plurality find Barnum inapposite because the right to
jury trial must be affirmatively waived, whereas the right against self-
incrimination at issue in Barnum can be forfeited. (Conc. & dis. opn. of Cuéllar,
J., ante, at pp. 43‒44.) But for the reasons I have explained, Daniels did make an
express, knowing, and intelligent waiver of his right to jury trial. My point is that
the trial court was not required to do more by way of waiver colloquy even though
Daniels was self-represented. By contrast, my colleagues in the plurality would
effectively adopt a prophylactic rule mandating additional admonishments for self-
represented defendants, much like the prophylactic rule rejected in Barnum.
(Barnum, at p. 1225; see Howard, supra, 1 Cal.4th at pp. 1178–1179 [explicit
admonitions and waivers for the taking of a guilty plea are a prophylactic rule of
judicial procedure].)
       Here, the court explained the basic mechanism of a jury trial, that members
of the community would adjudge defendant’s guilt or innocence and the
appropriate penalty. It also explained the consequence of waiving that right, that
the court alone would make such determinations. The court was not required to go
further and explain “every single conceivable benefit and burden of the choice



                                          21
being made” (People v. Robertson (1989) 48 Cal.3d 18, 38), in the same degree of
detail counsel might have chosen.
       Finally, I would not impose a higher standard for a jury trial waiver in a
capital case (conc. & dis. opn. of Cuéllar, J., ante, at pp. 52–53), or distinguish
between the validity of Daniels’s guilt and special circumstance waivers and his
penalty phase waiver (conc. & dis. opn. of Cuéllar, J., ante, at pp. 52‒53; conc. &
dis. opn. of Liu, J., ante, at p. 4; conc. opn. of Kruger, J., post, at pp. 2‒5).
       Daniels argues the trial court was required to inform him that a
consequence of his penalty phase waiver would be the loss of the right to an
independent trial court review of the penalty imposed by a jury. As he
acknowledges, we have previously held that the failure to so advise does not
vitiate a jury waiver. (People v. Robertson, supra, 48 Cal.3d at p. 38.) Moreover,
Daniels did not completely forgo an independent review of the death verdict.
“When the judge renders a decision on penalty, and thereafter carefully reviews
that decision on motion for modification pursuant to [Penal Code] section 190.4,
the defendant is afforded ample due process.” (People v. Deere (1985) 41 Cal.3d
353, 359–360, disapproved on other grounds as recognized in People v. Brown
(2014) 59 Cal.4th 188, 110–111.) The trial court did so here.
       My colleagues in the plurality assert that “[i]n capital cases, the trial court
must scrupulously discharge its responsibility to protect the integrity of the
judicial process and maintain constitutional safeguards.” (Conc. & dis. opn. of
Cuéllar, J., ante, at pp. 53‒54.) They cite Patton v. United States, supra, 281 U.S.
276, a 1930 decision wherein the Supreme Court observed that the judicial duty to
ensure a valid jury trial waiver should be discharged “with a caution increasing in
degree as the offenses dealt with increase in gravity.” (Id. at p. 313; see conc. &
dis. opn. of Cuéllar, J., ante, at p. 53.) Notwithstanding this general language,
neither the high court nor this court has employed a “sliding scale” to evaluate a

                                            22
jury trial waiver based on the complexity or seriousness of the case. In Godinez v.
Moran (1993) 509 U.S. 389, a capital case, the Supreme Court cited noncapital
authority as the applicable standard for a defendant who seeks to plead guilty or
waive counsel. (Id. at pp. 396, 400–401, citing Parke v. Raley, supra, 506 U.S. at
pp. 28–29; Faretta, supra, 422 U.S. at p. 835; Johnson v. Zerbst (1938) 304 U.S.
458, 468.) Similarly, our recent decision in Sivongxxay, supra, 3 Cal.5th 151, did
not employ a heightened standard to review that capital defendant’s waiver of jury
trial for guilt or penalty. (Id. at pp. 166–169, 188–190.)6 Finally, it cannot
reasonably be argued that having a court trial rather than a jury trial renders the
penalty proceedings less reliable under the Eighth Amendment. (See conc. & dis.
opn. of Cuéllar, J., ante, at p. 53, citing Johnson v. Mississippi (1988) 486 U.S.
578, 584.)
       My colleagues in the plurality point out that the jury’s function at the
penalty phase is different than at the guilt phase. At the penalty phase, the jury’s
role “ ‘is not merely to find facts, but also—and most important—to render an
individualized, normative determination about the penalty appropriate for the
particular defendant—i.e., whether he should live or die.’ ” (Conc. & dis. opn. of
Cuéllar, J., ante, at p. 53, quoting People v. Brown (1988) 46 Cal.3d 432, 448; see
also conc. & dis. opn. of Liu, J., ante, at p. 4.) My colleagues find no basis to
conclude that Daniels was aware of the unique characteristics of a penalty phase
jury based either on common knowledge or on his prior pleas to noncapital crimes.


6      We have expressly rejected such an argument in other contexts. (See, e.g.,
People v. Lucas (2014) 60 Cal.4th 153, 222 [no heightened constitutional standard
to preserve evidence in a capital trial]; People v. Letner and Tobin (2010) 50
Cal.4th 99, 161 [no heightened standard for reviewing the sufficiency of the
evidence in a capital case]; People v. Riel (2000) 22 Cal.4th 1153, 1182 [no
heightened standard of proof at the penalty phase trial].)



                                          23
(Conc. & dis. opn. of Cuéllar, J., ante, at p. 52; conc. & dis. opn. of Liu, J., ante, at
p. 4; conc. opn. of Kruger, J., post, at p. 4.) By choosing a court trial, Daniels did
not forgo a normative determination of penalty or the prospect of a life without
parole sentence. Whether made by a jury or a judge, the normative features of the
penalty decision remain the same. As discussed above, the basic core of the jury
trial right is the “interposition between the accused and his accuser of the
commonsense judgment of a group of laymen, and in the community participation
and shared responsibility that results from that group’s determination of guilt or
innocence.” (Williams v. Florida, supra, 399 U.S. at p. 100.) Daniels was
repeatedly advised of this distinction as it pertained to all aspects of his jury trial
waiver, including penalty.
       Moreover, Daniels was not ignorant of the manner in which a penalty
determination would be reached in his case. Before the penalty phase began, the
prosecutor advised Daniels of his right to call witnesses who would present
mitigating evidence. The trial court explained to Daniels that the prosecutor
would present evidence in aggravation, and that the court would consider the
aggravating factors and mitigating factors in reaching a verdict of death or life
imprisonment without the possibility of parole. Daniels indicated that he
understood. The court persisted in its inquiry, stating, “Do you realize, although
you have waived your right to a jury trial, that I would empanel a jury to try these
questions in the penalty phase, you have that right, but heretofore you have waived
that right, and said you wanted a court trial. [¶] Do you still feel that way?”
Daniels replied, “I do.” These advisements are similar to those given in
Sivongxxay, supra, 3 Cal.5th 151. There, the defendant was told about the basic
features of the penalty phase: that the prosecution would present aggravating
evidence and the defendant would have the right to present mitigating evidence.
He was advised that he had a right to a jury trial at the penalty phase and that, if he

                                           24
waived that right, the court would decide the appropriate punishment, which could
result in a death sentence. (Id. at pp. 188–189.) We upheld the penalty phase jury
trial waiver as knowing and intelligent. (Id. at pp. 189–190; but see id. at p. 189
[observing that the defendant was represented by counsel in connection with the
jury waiver].)
       I also disagree with the assertion that Daniels’s strategy differed between
the guilt and penalty phases. (Conc. opn. of Kruger, J., post, at p. 4.) True,
Daniels did not ask to be sentenced to death. But this is largely beside the point
for two reasons. First, the judge was just as capable as the jury of returning a life
without parole sentence. Daniels clearly expressed his confidence in Judge Long
to make that decision, declaring immediately before the penalty phase that “I trust
and have faith in you, whatever your decision is.” Second, Daniels consistently
employed the same strategy throughout the trial. He contested no part of the
prosecution’s case and presented no argument, leaving the outcome in the hands of
the judge. Before the penalty phase began, Daniels was again offered the services
of counsel, either appointed or advisory, and an investigator, as well as additional
time to prepare a penalty phase defense. He declined. Empaneling a jury for the
penalty phase trial would have required that the bulk of the guilt phase evidence be
presented again, undermining Daniels’s desire to bring closure to the case and not
further burden the victims and their surviving family members. As with the guilt
phase, an advisement regarding the normative role of the jury in selecting penalty
would not have made Daniels’s waiver materially more informed in light of the
strategy he employed.
       It is always possible to elaborate on the extent of a right being waived.
When asked if he waives his right to counsel, a defendant could be told that a
lawyer must have a law degree, pass the bar examination, and take continuing



                                          25
legal education courses. But such granular detail has never been required in order
to support the conclusion that the waiver of counsel is properly made.
       So too here. Regarding the right to a jury, a defendant could be told that
the jury will be instructed on the law, will deliberate in private, can discuss the
case with no one, receives no outside information, selects one of their group to act
as foreperson, and can be polled before a verdict is recorded. My colleagues in the
plurality select a few items from the menu of possibilities and would require that
they be mentioned under penalty of verdicts being reversed 16 years after the fact.
Settled precedent rejects such a rigid rule, and correctly so. Under the totality of
the circumstances and based on a clear and extensive record, I would find that
Daniels entered a knowing and intelligent waiver of his right to a jury trial on the
issues of guilt, special circumstances, and penalty.


                                           CORRIGAN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
CHIN, J.




                                          26
     CONCURRING AND DISSENTING OPINION BY KRUGER, J.
     TO THE LEAD OPINION, CONCURRING IN THE JUDGMENT
                       OF THE COURT

       This case illustrates the difficulties that can arise on appeal when a trial
court fails to “advise a defendant of the basic mechanics of a jury trial in a waiver
colloquy” or to take other “steps as appropriate to ensure, on the record, that the
defendant comprehends what the jury right entails.” (People v. Sivongxxay (2017)
3 Cal.5th 151, 169 (Sivongxxay).) Under the unusual circumstances of this case,
my preference would be to order further proceedings to allow the parties to make a
more robust record concerning the intelligence of defendant David Scott Daniels’s
jury waiver. (Cf. Lopez v. United States (D.C. 1992) 615 A.2d 1140, 1147–1148
[limited remand for further proceedings to determine whether waiver was knowing
and intelligent]; Jackson v. Com. (Ky. 2003) 113 S.W.3d 128, 136 [similar]; State
v. Anderson (2002) 249 Wis.2d 586, 603 [similar]; State v. Aragon (1997) 123
N.M. 803, 809 [similar]; Com. v. DeGeorge (1984) 506 Pa. 445, 450 [similar];
also cf. People v. Lightsey (2012) 54 Cal.4th 668, 702–710 [limited remand for
retrospective competency hearing]; People v. Leahy (1994) 8 Cal.4th 587, 610
[limited remand for hearing regarding admissibility of expert evidence].) “If I
were to insist upon the disposition I prefer, however, there would be no judgment
of this court . . . .” (People v. Harris (1984) 36 Cal.3d 36, 72 (conc. opn. of
Grodin, J.).) To avoid that outcome, I concur in the judgment set out in our per
curiam opinion, which resolves the case in the manner that most closely reflects
my own views on what the record before us establishes about the intelligence of
defendant’s jury trial waiver. (See ibid.; see also Screws v. United States (1945)
325 U.S. 91, 134 (conc. opn. of Rutledge, J.).)
       Although the trial court that accepted defendant’s jury trial waiver
painstakingly confirmed that defendant understood he was choosing to have the
court make findings about his guilt, the truth of the special circumstances, and
ultimately the penalty, the transcript nevertheless reveals an important omission:
The court never asked defendant whether he understood the alternative before him
— that is, the nature of the jury right he was waiving. The court itself supplied no
information on the subject, nor did it confirm that defendant had received such
information elsewhere — for example, from a written advisement (which
defendant did not receive) or from counsel (which defendant, who was then self-
represented, did not have). (Cf. Sivongxxay, supra, 3 Cal.5th at pp. 170, 169
[advising certain measures to “ensure that a particular defendant who purports to
waive a jury trial does so knowingly and intelligently” and to “facilitate the
resolution of a challenge to a jury waiver on appeal”].) The omission is
particularly striking given the seriousness of the charges and the penalties
defendant faced. (See Patton v. United States (1930) 281 U.S. 276, 313.)
       Notwithstanding these deficiencies, I agree with Justice Corrigan that the
record before us sufficiently demonstrates that defendant’s choice to waive his
right to jury trial on the charges related to special-circumstance murder was “made
with eyes open.” (Adams v. U.S. ex rel. McCann (1942) 317 U.S. 269, 279
(Adams).) My agreement on this point rests primarily on the indications in the
record that defendant’s overarching aim throughout the proceedings was simply to
accept responsibility for the charged crimes. (See conc. & dis. opn. of Corrigan,
J., ante, at pp. 17–18.) Defendant’s manifest desire was to plead guilty (which, of
course, would also have entailed waiving his right to jury trial). Once he was

                                          2
prevented from doing so, defendant attempted to accept responsibility by the
means that remained available to him. Consistent with that aim, he discharged his
lawyer, declined to question prosecution witnesses, and presented no defense. As
he told the probation officer, he “ ‘felt it would be unfair to the victims and their
surviving family members for him to attempt to fight these charges, knowing he
was guilty of each of the crimes.’ ” (Id. at p. 10.) His choice to waive his right to
jury trial on the substantive charges was of a piece with his general approach to
the trial on guilt that he did not want in the first place.1
       The high court has made clear, at least in similar contexts, that the
information a defendant must possess to make an intelligent waiver can vary from
case to case. (See Iowa v. Tovar (2004) 541 U.S. 77, 92 (Tovar), quoting Johnson
v. Zerbst (1938) 304 U.S. 458, 464 [“In prescribing scripted admonitions and
holding them necessary in every guilty plea instance, . . . the Iowa high court
overlooked our observations that the information a defendant must have to waive
counsel intelligently will ‘depend, in each case, upon the particular facts and
circumstances surrounding that case.’ ”].)
       Here, too, whether particular information bears on the intelligence of a jury
waiver must depend, at least in part, on the goal that the waiver is intended to
serve. Unlike most jury waivers, defendant’s waiver as to guilt and special
circumstances was plainly not made with an eye to “self-protect[ion],” or to secure
any litigation “advantages.” (Adams, supra, 317 U.S. at p. 278.) As such, while
an express advisement about the fundamental attributes of jury trial might have
made even clearer to defendant the protection that a jury might afford, there is

1      This appeal, it should be noted, comes to us on automatic appeal: An
appeal from a judgment of death is taken automatically and may not be waived by
the defendant. (See People v. Massie (1998) 19 Cal.4th 550, 566–568.)



                                            3
every indication that he did not want that protection at his trial on the substantive
charges — and that additional advisements on that point, if anything, would have
simply reinforced his resolve to waive a jury trial. Our examination of “the
totality of the circumstances” (Sivongxxay, supra, 3 Cal.5th at p. 167) cannot
ignore this one.
       The record provides no comparable indication with respect to defendant’s
penalty phase waiver, however. Although the record clearly reflects defendant’s
desire to accept legal responsibility for his crimes by pleading guilty, the record
does not reflect that defendant affirmatively sought the penalty he received. True,
defendant did not put on his own case in mitigation. But when the People rested at
the penalty phase, defendant asked the court for a few days to use the law library.
When proceedings resumed, defendant apologized to the families of Carolina and
McCoy, admitting his crimes against the deceased and expressing “deep remorse
and sadness.” (Conc. & dis. opn. of Cuéllar, J., at p. 9.) Based on this record, it is
unclear what defendant hoped to achieve at the penalty phase. I therefore cannot
conclude that information about the fundamental attributes of a jury trial would
have been irrelevant to, or merely confirmatory of, defendant’s choice to waive a
penalty phase jury. Nor do I think it clear, on this record, that defendant already
understood these attributes. The penalty phase of a capital trial is “the only
context in which California law authorizes a jury to decide the appropriate
punishment for a criminal offense.” (Sivongxxay, supra, 3 Cal.5th at p. 213 (conc.
& dis. opn. of Liu, J.).) None of the decade-old advisements defendant received in
connection with earlier criminal cases touched on the characteristics of a penalty
phase jury (cf. ibid.), and there is little reason to think that those characteristics
would be “ ‘obvious to an accused’ ” (conc. & dis. opn. of Corrigan, J., at p. 12,




                                            4
quoting Tovar, supra, 541 U.S. at p. 90). I accordingly agree with the lead
opinion that defendant’s penalty phase waiver cannot be affirmed on this record.2
       If the People opt to retry him, defendant may again choose to waive a
penalty phase jury. That choice is his to make. But the choice, to be valid, must
be a knowing and intelligent one. The record before us does not reflect that
defendant’s penalty phase waiver was such a choice. For these reasons, I concur
in the judgment set out in the per curiam opinion.


                                          KRUGER, J.




2      Separate and apart from federal constitutional requirements (see People v.
Robertson (1989) 48 Cal.3d 18, 36), state law requires that the penalty be
determined by a jury in the absence of a valid waiver (see ibid.; Pen. Code,
§ 190.4, subd. (b)). The failure to secure a valid waiver constitutes an independent
violation of state law.



                                         5
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Daniels
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S095868
Date Filed: August 31, 2017
__________________________________________________________________________________

Court: Superior
County: Sacramento
Judge: James L. Long

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Gail R. Weinheimer,
Kate LaGrande Chatfield and Gary D. Garcia, Deputy State Public Defenders, for Defendant and
Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Ward A. Campbell, Stephanie A. Mitchell, Sean
M. McCoy, Larenda R. Delaini and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Gary D. Garcia
Deputy State Public Defender
1111 Broadway, 10th Floor
Oakland, CA 94607-4139
(510) 267-3300

Christopher J. Rench
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 324-5374
