Filed 9/26/16 P. v. Diaz CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F070218
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F13900198)
                   v.

ESTEBAN ACEVEDO DIAZ,                                                                    OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. James A.
Kelley, Judge.

         Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Eric L. Christoffersen and Christopher J. Rench, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-
                                                INTRODUCTION
         Fifteen years ago, in the case of People v. Collins (2001) 26 Cal.4th 297 (Collins),
the California Supreme Court was asked to determine the validity of a criminal waiver of
a jury trial, when the trial court, in advising the defendant before accepting the waiver,
informed him he would receive “some benefit” if he waived his right to a jury trial. The
court held defendant’s jury trial waiver was not a valid waiver in light of the trial court’s
assurance he would receive a benefit by doing so, and it concluded reversal of the
defendant’s conviction was thereby compelled. (Id. at p. 300.)
         In this case, defendant Esteban Acevedo Diaz waived his right to a jury trial after
the trial court advised him, “I understand that the People would be dismissing three of the
charges if you went forward with a court trial and your exposure would be—instead of 55
years to life in prison, your exposure would be 25 years to life in prison and the
settlement talks could continue during the course of the court trial.” We agree with
defendant’s contention his waiver was invalid under the Collins case, which also compels
a reversal of defendant’s convictions.
                           PROCEDURAL HISTORY AND FACTS1
         Following a court trial, defendant was convicted of four counts of committing
lewd acts on two of his children who were under 14 years old at the time of the offenses
(Pen. Code,2 § 288, subd. (a)). The court found true an additional allegation that
defendant committed lewd acts on more than one victim within the meaning of section
667.61, subdivision (e)(4). The court sentenced defendant to consecutive terms of 15
years to life on counts 1 and 4 and to concurrent sentences of 15 years to life on counts 2
and 3.
Hearing on Defendant’s Waiver of a Jury Trial
         The morning of August 27, 2014, the parties had a pretrial hearing. Defendant
was assisted with a Spanish-language interpreter. The trial court noted it had asked




         1Inlight of the dispositive issue pertaining to the jury trial waiver, we dispense with the
traditional statement of facts and instead provide a rendition of the hearings on the pretrial jury
waiver.
         2Unless   otherwise designated, all statutory references in this opinion are to the Penal
Code.

                                                   2.
counsel off the record if defendant wanted a jury trial or was willing to waive it. The
court had the following colloquy with defendant:

               “[THE COURT: T]he choice is yours. And the choice is, you can
       have a jury, which means we will select a jury from people in the
       community, and 12 of those people would come and sit in the box and
       listen to the evidence in this case and determine whether or not the People
       can prove that you’re guilty of the charges. You can waive your right to
       have a jury trial and have only a judge decide whether or not the People can
       produce enough evidence to determine whether you are guilty of the
       charges or not. The standard is beyond a reasonable doubt that the People
       have to prove whether it’s a jury or just a judge hearing the case.

             “Again, the choice is yours. If you didn’t have a jury in here, the
       case would go quicker, but, of course, you’re entitled to have the jury here.
       And there are advantages to both.

                “I understand that the People would be dismissing three of the
       charges if you went forward with a court trial and your exposure would
       be—instead of 55 years to life in prison, your exposure would be 25 years
       to life in prison and the settlement talks could continue during the course of
       the court trial. If a jury was impaneled, I don’t think that would be a
       possibility, but, on the other hand, a jury would have to find you guilty by
       all 12 members.

              “So, again, there are advantages and disadvantages to either. The
       choice is yours, sir. What is your choice? I know your attorney has been
       explaining the options to you for about the last 45 minutes to an hour.

              “THE DEFENDANT: With you better, sir, Judge.

              “THE COURT: So you’re waiving your right to a jury trial, sir?

              “THE DEFENDANT: Yes.”
       The prosecutor waived the People’s right to a jury trial. The court stated it would
call off the jurors and proceed with a court trial. When the court asked the prosecutor if a
settlement offer had been made, she replied:

       “We had some settlement discussions. However, because of the rushed
       time, I didn’t have a full opportunity to speak to the victims and my boss.
       So at this point, we had offered originally 18 years to the defendant. That
       was before trial. The counter was 17. At this point, 17 is not acceptable. I
       will talk to my victims again and my chief, but, if not, we would just be

                                             3.
       requesting that the trial start tomorrow. If the Court wants to start this
       afternoon, I would just have to check.”
       After discussing how long it would take the prosecutor to examine her witnesses
and setting up the trial schedule, the prosecutor stated she would prepare a second
amended information and the matter was recessed until after lunch. After the lunch
recess, the proceedings resumed. The prosecutor stated she had filed a second amended
information and added the following:

              “[PROSECUTOR]: Yes, your Honor. The People did file a second-
       amended information, conforming to proof in the case. With the second-
       amended information, the People are ready to proceed to trial. It does not
       substantively change the charges in the case at all. We are ready to proceed
       with the jury trial. It is the defendant’s constitutional right if he would like
       to go to a jury trial on the current information, the second-amended
       information. We’re ready to go to trial if he opts for a court trial.

              “So we just want to make clear that the defendant is entitled to go
       with a jury trial or court trial. If he wants to do the jury trial, we are ready
       to proceed.

            “THE COURT: So when you say no substantive changes, you have
       removed three charges.

              “[PROSECUTOR]: Correct, but the charges that were removed reflect
       the same event of what is charged in the alternative, which is a 288(a).

            “THE COURT: But it significantly reduces his exposure, his
       maximum exposure, if convicted of all charges.

              “[PROSECUTOR]: It is now at 25 to life. Correct.

             “THE COURT: Okay. So any objection to the second-amended
       information being filed?

              “[DEFENSE COUNSEL]: No, Your Honor.

             “THE COURT: All right. It will be filed and received, and I believe
       he needs to be arraigned [on it].

              “[DEFENSE COUNSEL]: Yes. I [ac]knowledge receipt of the second
       amended information. Waive formal arraignment, further advisement of
       statutory and constitutional rights. Plead not guilty.


                                              4.
              “I did have a moment to speak with [defendant]. Unless he has
        some objection right now, it was our intention to proceed with a court trial.

               “THE COURT: All right. I think the prosecutor wanted to be certain
        that he didn’t believe that the second information would not be filed if it
        was a jury trial or court trial, but in any event, it’s being filed. And his
        decision is still to have a court trial, waiving his right to a jury. [¶] Is that
        correct …?”

               “THE DEFENDANT: Yes.”
                                         DISCUSSION
Waiver of Right to Jury Trial
        Defendant contends his waiver of the right to a jury trial was neither voluntary nor
knowing and intelligent because it was conditioned on a promise of leniency by both the
prosecution and the trial court. Defendant acknowledges he was told after the filing of
the second amended information that he could still have a jury trial, but argues one would
connect back to the original inducement and nevertheless conclude “his sentencing
exposure would be reduced if, and only if, he agreed to forgo a jury trial.” Defendant
argues “the trial court’s subsequent reference to a reduction in exposure reinforced the
original inducement to waive [a] jury trial.”
        The People reply defendant’s waiver was voluntary because after the second
amended information was filed, both the prosecutor and the trial court told defendant he
could still have a jury trial but defendant still elected to have a court trial. The People
alternatively argue it was the prosecutor, not the trial court, who induced defendant to
waive his right to a jury trial. The People compare the prosecutor’s inducement to a plea
bargain, which when properly implemented can lead to a valid waiver of the right to a
jury trial. The People argue that as in a plea bargain, a defendant can enter an agreement
with the prosecutor to waive the right to a jury trial under the circumstances occurring
here.
        After careful review of the record, and in light of the applicable case law, we find
defendant’s jury trial waiver is invalid.


                                                5.
1.     Improper Inducement for Waiver of the Right to Jury Trial by the Court or
       the Prosecutor May Constitute Coercion
       The Sixth Amendment, applicable to the states by the Fourteenth Amendment of
the federal Constitution, is recognized as a fundamental constitutional right. (Collins,
supra, 26 Cal.4th at p. 304.) The California Constitution confers upon a defendant in a
criminal prosecution the right to a jury trial under article I, section 16. Our Supreme
Court has also recognized this right as fundamental. (Collins, supra, at p. 304.) The
practice of accepting a defendant’s waiver of the right to a jury trial is common in both
federal and state courts and is constitutional. As with the waiver of other fundamental
constitutional rights, the waiver of the jury trial right must be knowing and intelligent—
made with full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it. It must be voluntary in the sense that it was
the product of free and deliberate choice and not based on intimidation, coercion, or
deception. (Id. at p. 305; People v. Cunningham (2015) 61 Cal.4th 609, 636-637.)
       The state may not punish a defendant for the exercise of a constitutional right, or
promise leniency to a defendant for refraining from exercising the right. “Coercion in
either form has been rejected, whether its source is executive, legislative, or judicial in
nature.” (Collins, supra, 26 Cal.4th at p. 306.) The decisions prohibiting such coercion
condemn the state’s unilateral imposition of a penalty upon a defendant who chooses to
exercise a legal right. It is a violation of due process of the most basic sort to punish a
person because he or she has done what the law plainly allows. (Id. at p. 306, citing
Bordenkircher v. Hayes (1978) 434 U.S. 357, 362-363.)
       After the trial court in Collins learned the defendant might waive a jury trial, the
court informed defense counsel ‘“there might well be a benefit in it,’ because ‘just by
having waived jury’ and thus not taking two weeks’ time to try the case, ‘that has some
effect on the court.’” The court then informed the defendant he would receive a benefit
of an unspecified nature if he waived his right to a jury trial. The court secured the



                                              6.
defendant’s response that he understood the court’s comments. (Collins, supra, 26
Cal.4th at p. 309.)
       The Supreme Court observed “[t]he trial court, by following that procedure while
announcing its intention to bestow some form of benefit in exchange for defendant’s
waiver of that fundamental constitutional right, acted in a manner that was at odds with
its judicial obligation to remain neutral and detached in evaluating the voluntariness of
the waiver.” (Collins, supra, 26 Cal.4th at p. 309.) Collins determined “[t]he form of the
trial court’s negotiation with defendant presented a ‘substantial danger of unintentional
coercion.’” (Ibid.) Collins further noted the waiver of the fundamental right of a jury
trial is not by itself subject to negotiation by the court. “In effect, the trial court offered
to reward defendant for refraining from the exercise of a constitutional right.” (Ibid.)
Collins held error this fundamental was structural error not subject to harmless error
analysis and compelled reversal of the judgment. (Collins, at pp. 310-313.)
       We turn to defendant’s contention the trial court coerced him into waiving his
right to a jury trial. When the trial court advised defendant of his right to a jury trial, the
court told defendant the People would be dismissing charges and exposing defendant to a
prison term of 25 years to life rather than 55 years to life. The court further vaguely
stated there would be advantages and disadvantages to either having a trial by jury or a
court trial. Defendant then waived his right to a jury trial. This conduct was coercive
under the Collins court’s holding because it promised defendant leniency for waiving a
fundamental constitutional right and included a vague promise there could be advantages
to waiving a jury trial. Furthermore, it does not matter whether a promise of leniency for
waiving a fundamental right comes from the court or the prosecutor. Rather, “[c]oercion
… has been rejected, whether its source is executive, legislative, or judicial in nature.”
(Collins, supra, 26 Cal.4th at p. 306.)




                                               7.
2.     Incorrect Information About the Maximum Potential Prison Penalty, When
       Given by the Prosecutor or the Court, May Substantially Affect a
       Defendant’s Ability to Make a Knowing and Intelligent Waiver of the Right
       to Jury Trial
       When the parties came back to court after the lunch recess, the prosecutor filed a
second amended information and told the court, defendant, and defense counsel the
newly filed information was not contingent on defendant exercising his right to a jury
trial. The prosecutor stated: “[T]he People are ready to proceed to trial. It does not
substantively change the charges in the case at all. We are ready to proceed with the jury
trial. It is the defendant’s constitutional right if he would like to go to a jury trial on the
current information, the second-amended information.” The court asked whether the new
information would significantly reduce defendant’s maximum exposure if he were
convicted of all the charges. The prosecutor replied, “It is now at 25 to life. Correct.”
Defense counsel stated he had a moment to speak with defendant and noted it “was our
intention to proceed with a court trial.”
       The trial court reiterated to defendant “the prosecutor wanted to be certain that he
didn’t believe that the second information would not be filed if it was a jury trial or a
court trial, but in any event, it’s being filed.” The court again asked defendant if he was
waiving his right to a jury trial and defendant affirmed his choice to have a court trial.
       Defendant had been charged in the first amended information with three counts of
violating section 288a, subdivision (c)(2)(B), carrying three upper terms of 12 years; one
count of section 286, subdivision (c)(2)(C), carrying an upper term of 11 years; and one
count of section 288, subdivision (a), carrying an upper term of eight years. Defendant’s
maximum possible prison term under the first amended information was a determinate
sentence of 55 years.
       Defendant was charged in the second amended information with four counts of
288, subdivision (a), but with an additional allegation of multiple victims as defined in
section 667.61, subdivision (e)(4). The second amended information potentially
subjected defendant to four consecutive sentences of 15 years to life pursuant to section

                                               8.
667.61, subdivision (b) for a total possible exposure of 60 years to life. The second
amended information actually subjected defendant to a potentially higher sentence than
the first amended information.
       Although defendant had been informed of his right to a jury trial and the filing of
the second amended information was not contingent on him waiving this right, the court
and the parties appeared to misunderstand the second amended complaint exposed
defendant not to a maximum sentence of 25 years to life, but to a potential sentence of 60
years to life. The legal information and consequences of the second amended
information imparted to defendant after the lunch recess by the prosecutor and the trial
court were incorrect. Because the information expressly conveyed to defendant was
inaccurate and misleading, defendant’s ability to make an intelligent waiver of his right to
a jury trial is completely in doubt. Even though the trial court and the prosecutor
informed defendant he could still have a jury trial, they did so in the context of
misinforming defendant of the new charges filed against him.
       A criminal defendant may waive fundamental rights, including the right to a jury
trial. (Collins, supra, 26 Cal.4th at p. 305, fn. 2; People v. Smith (2003) 110 Cal.App.4th
492, 500.) A defendant’s waiver of the right to a jury trial may be accepted only if it is
knowing and intelligent—made with full awareness of the nature of the right being
waived and the consequences of the waiver. The waiver must be voluntary and must be
taken personally from the defendant. (Ibid.)
       In determining whether there was an effective waiver of a jury trial in favor of a
court trial, case law does not require a specific formula or extensive questioning beyond
assuring the waiver is personal, voluntary, and intelligent. Whether a valid waiver is
taken is a question of fact. The burden is on the party claiming the existence of the
waiver to prove it by evidence that does not leave the issue to speculation. (People v.
Smith, supra, 110 Cal.App.4th at p. 500.)




                                             9.
       “A waiver is ordinarily an intentional relinquishment or abandonment of a known
right or privilege.” (Johnson v. Zerbst (1938) 304 U.S. 458, 464, italics added; see
People v. Spencer (1984) 153 Cal.App.3d 931, 940, criticized on another ground in
People v. Bloom (1989) 48 Cal.3d 1194, 1225-1226.) For instance, the test for
determining whether there is a knowing and intelligent waiver of the Sixth Amendment
right to counsel focuses on the accused’s understanding of the implication of waiving his
or her right; “a waiver of a constitutional right cannot be considered ‘intelligent’ unless
the defendant is sufficiently informed of the consequences of his [or her] choice.”
(Spencer, supra, at pp. 940-941.)
       In the context of a plea bargain, misinforming the defendant of the consequences
of a plea entitles the defendant to withdraw his or her plea. (People v. Victorian (1992) 2
Cal.App.4th 954, 957 [defendant must be advised of direct consequences of a plea,
including length of parole period]; People v. Hill (1976) 64 Cal.App.3d 16, 25-26
[defendant entitled to withdraw plea when court imposes more punishment than
contemplated in plea agreement].)
       In People v. Hopkins (1974) 39 Cal.App.3d 107, 110, the trial court permitted the
prosecutor to file an amended information adding a gun use enhancement increasing the
defendant’s prison term by 10 years. The amendment was permitted after the defendant
had already waived his right to a jury trial and entered a guilty plea. (Id. at pp. 110, 116-
118.) The Hopkins court found the increased punishment added to the People’s pleading
and ultimately to the defendant’s sentence—after the defendant had waived his right to
jury—prejudiced defendant because he was not arraigned on the new information and did
not personally waive his right to a jury trial based on that pleading. (Id. at pp. 118-119.)
       The issue in Hopkins was whether the defendant’s waiver of his jury trial right was
invalidated by the subsequent filing of an information adding 10 years to the defendant’s
sentence. Although not directly on point here, the situation each defendant faced is
analogous. In both cases the defendants could not have made knowing and intelligent


                                             10.
waivers of their right to a jury trial; in Hopkins this occurred because the waiver of the
right occurred prior to the filing of the new pleading; in this case, the waiver of the right
occurred after defendant was incorrectly advised his prison exposure was substantially
less in the new pleading than it actually was.
       Under these facts, we reject the People’s argument defendant made a knowing,
intelligent, and voluntary waiver of his right to a jury trial. The People acknowledge
defendant’s actual prison exposure was 60 years to life, arguing that in misinforming
defendant, the court was not memorializing a formal, binding agreement, but only
conveying information provided by the parties. This argument is unpersuasive and
completely ignores the legal requirement a defendant’s waiver of a fundamental
constitutional right be knowing and intelligent. It was not possible for defendant to make
a knowing and intelligent waiver of his right to a jury trial after being misinformed
concerning the legal consequences of the newly filed information, especially when
defendant was told he faced a substantially shorter sentence than possible under the
pleadings.3
       In his reply brief, defendant argues the faulty waiver of the jury trial right prior to
the lunch recess continued to taint the proceedings. He also contends his subsequent
waiver of his right to a jury trial and the conduct of the trial court after the recess
reinforced the earlier coercive inducement by the trial court for defendant to waive his
jury trial right. There is merit to both of these points. The trial court improperly induced
defendant pursuant to Collins to waive his right to a jury trial during the initial hearing by
stating he could reduce his prison exposure by 30 years. How did the trial court’s
misstatement of defendant’s new prison exposure of only 25 years to life undo the taint of
the court’s initial inducement? The prosecutor’s statements defendant faced a prison
term of 25 years to life and the trial court’s failure to accurately explain the full penal

       3After the lunch recess, defense counsel informed the court he had a brief consultation
with his client. There is no record of what defense counsel told defendant and we will not
speculate as to what advice defense counsel may have given defendant.

                                               11.
consequences of the second amended information accomplished nothing except to
reinforce the trial court’s earlier coercive inducement for defendant to waive a jury.
       We agree with the People defendant was told by both the prosecutor and the trial
court after the lunch recess he had the right to a jury trial. Defendant was represented by
counsel and personally waived his right to a jury trial a second time. The constitutional
flaw in the post-lunch proceedings occurred, however, because defendant was misadvised
concerning his maximum exposure under the newly filed information. The prosecutor
and the trial court did not accurately explain to defendant his actual prison exposure
under the second amended information, and actually misinformed defendant his total
exposure would be 25 years to life when it was actually 60 years to life. In turn, it was
improbable and unlikely defendant could enter a knowing and intelligent waiver of his
right to a jury trial. This constituted improper inducement to defendant to continue to
waive his constitutional right to a jury trial and resulted in structural error necessitating
reversal of the judgment. (Collins, supra, 26 Cal.4th at pp. 310-313.)
3.     If the People and Defendant Entered a Plea Bargain to Waive a Jury Trial,
       the People Did Not Honor the Agreement
       The People alternatively argue the parties, as with a plea bargain, reached an
agreement for defendant to waive his right to a jury trial. This argument is unpersuasive
given the procedural posture the parties found themselves in before trial. As we view the
proceedings, there was one hearing separated by a lunch recess. Before the recess, the
trial court took a waiver of defendant’s right to a jury trial. After defendant entered his
waiver, the trial court asked the parties about plea negotiations. Defendant’s offer
appeared to be one year shorter than what the People were willing to accept. It is clear,
however, that defendant’s waiver of a jury trial was separate from, and not premised on,
the plea negotiations.
       The court in Collins noted its holding was not intended to call into question the
well-established practice in which the prosecutor and defendant negotiate a plea of guilty
or nolo contendere. (Collins, supra, 26 Cal.4th at pp. 309-310, fn. 4.) In People v.

                                              12.
Sanders (1987) 191 Cal.App.3d 79, 86, this court found an agreement between the
prosecutor and the defendant for the defendant to waive his jury trial right in exchange
for dismissing one of three counts in an information was akin to a plea bargain and could
be subsequently enforced. Our court in Sanders found the People breached their
agreement with the defendant because after initially dropping the third count in the
information, the People reinstated the count after the defendant waived his right to a jury
trial. We reversed the judgment. (Id. at pp. 86-88.)
       Here, unlike Sanders, the parties did not memorialize a formal agreement in which
defendant was waiving his right to a jury trial in order for the People to file a second
amended complaint with less prison exposure to defendant. An agreement can be
inferred from the record, though whether there was an actual agreement between
defendant and the prosecutor is unclear. As explained above, however, the second
amended information filed by the People increased defendant’s maximum possible prison
term from a determinate sentence of 55 years to an indeterminate sentence of 60 years to
life. Even if there was an agreement by the parties to reduce defendant’s maximum
prison exposure to 25 years to life in exchange for his waiver of his right to a jury trial,
the People failed to follow the terms of such an agreement because defendant’s maximum
prison exposure actually increased. To the extent a formal agreement between the parties
for defendant to waive his right to a jury trial can be inferred, our decision in Sanders
mandates reversal of the judgment for the People’s failure to follow the terms of such an
agreement.4
       The waiver of defendant’s jury trial right was also clearly not part of a plea
agreement because plea negotiations had broken down prior to the pretrial hearing and
nothing in the proceedings indicates they were revived. The record does not support the
People’s alternative argument the parties negotiated a waiver of defendant’s right to a


       4Defendant  was sentenced on all four counts to prison terms of 15 years to life, though
his sentence on two counts was ordered to be served concurrently.

                                               13.
jury trial, or if they did so the People failed to fulfill the agreement. Therefore, the
judgment must be reversed.5
                                         DISPOSITION
       The judgment is reversed and the case remanded for retrial or other disposition.


                                                              ___________________________
                                                                                  PEÑA, J.
WE CONCUR:


 __________________________
POOCHIGIAN, Acting P.J.


 __________________________
DETJEN, J.




       5Defendant      also contends the trial court erred in allowing expert testimony concerning
child sexual abuse accommodation syndrome, and the parties concede there is clerical error in
the abstract of judgment. Because we find defendant was improperly induced into waiving his
right to a jury trial, we reverse the judgment and do not reach the other issues raised in this
appeal.

                                                14.
