Filed 1/23/15 P. v. Aldridge CA4/1

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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                        D064644

         Plaintiff and Respondent,

         v.                                                        (Super. Ct. No. SCD247909)
                                                                   (Super. Ct. No. SCE323810)
TAMMIE TERRELL ALDRIDGE,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Richard S.

Whitney, Judge. Reversed in part; affirmed in part.

         Jean Matulis, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stacy A.

Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
       After defendant Tammie Terrell Aldridge 1 waived her right to a jury trial in the

current domestic violence case─People v. Aldridge (Super. Ct. San Diego County, 2013,

No. SCD247909)─ the court found her guilty of the following four crimes following a

bench trial: (1) inflicting corporal injury upon a spouse (count 1: Pen. Code,2 § 273.5,

subd. (a)); (2) assault with a deadly weapon (a knife) (count 2: § 245, subd. (a)(l)); (3)

assault with a caustic chemical (bleach) (count 3: § 244); and (4) misdemeanor

vandalism (count 4: § 594, subds. (a), (b)(2)(A)). The court also found to be true a

sentence enhancement allegation that Aldridge personally used a deadly weapon (§

12022, subd. (b)(1)), a knife, in the commission of count 1.

       In September 2013 the court sentenced Aldridge in that case to a total state prison

term of four years eight months, consisting of the middle term of three years for her

conviction of count 1, plus one year for the true finding on the count 1 deadly weapon

allegation, plus eight months (one-third the middle term) for her conviction of count 3.

       In the same sentencing proceeding, in People v. Aldridge (Super. Ct. San Diego

County, 2013, No. SCE323810), the court revoked the probation Aldridge had been

granted less than a year earlier after she pleaded guilty to two counts of stalking (§ 646.9,

subds. (a), (b)) the same two people─her husband, Jonathan Aldridge (hereafter her

husband) and his girlfriend, Pashion Ferrara ─she victimized in the current offenses. The



1      Although the trial court minutes, the abstract of judgment and the notice of appeal
identify defendant as "Tammie Terrell Wicker," it was determined below that her true
name is "Tammie Terrell Aldridge." We refer to her by her true name.

2      All further statutory references are to the Penal Code unless otherwise specified.
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court imposed the low term of 16 months on one of the stalking charges and two years on

the other, for a total of three years four months, to be served concurrently with the

sentence imposed for the current offenses.

       Aldridge appeals, contending (1) the court violated her federal and state

constitutional rights to a jury trial and to due process by abandoning its neutral role and

improperly inducing her to waive her right to a jury trial through the implied promise of a

benefit in exchange for her jury trial waiver; and (2) the court erred in ordering her to pay

a penalty assessment in conjunction with the restitution fine it imposed under section

1202.4, subdivision (b) (hereafter section 1202.4(b)). The Attorney General

acknowledges the court improperly imposed the penalty assessment.

       For reasons we shall explain, we strike the imposition of the penalty assessment in

case No. SCD247909, but affirm the judgment in all other respects.

                              FACTUAL BACKGROUND3

       On June 17, 2012, Aldridge first learned of her husband's relationship with

Ferrara. On May 4, 2013, Aldridge stabbed her husband in his left forearm with a knife,

and threw the contents of a cup─a liquid that smelled like bleach─into his face, causing

his eyes to burn. Aldridge stabbed the tires of her husband's car.




3      As Aldridge does not challenge the sufficiency of the evidence in the current case
(SCD247909), and most of the underlying facts in this case are not relevant to the two
issues raised in this appeal, our summary of the factual background is very brief.
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                                        DISCUSSION

                                  I. JURY TRIAL WAIVER

       Aldridge first contends the court violated her federal and state constitutional rights

to a jury trial and to due process by abandoning its neutral role and improperly inducing

her to waive her right to a jury trial through the implied promise of a benefit in exchange

for her jury trial waiver. We reject this contention.

       A. Background

       The People filed a pretrial motion seeking admission of evidence of Aldridge's

prior acts of domestic violence. The motion detailed her violent and persistent

harassment of her husband and Ferrara and members of Ferrara's family.

       At a hearing in this matter the court noted on the record that "there [had been]

some talk in chambers that [Aldridge] might want to consider waiving the jury trial."

The court told Aldridge she had the right to waive the jury trial, that only she could waive

it, and that, if she waived a jury trial, "it would be a bench trial and I would sit as judge

and jury so you need to think about what you want to do in that regard if you want to go

ahead with trial."

       The court reminded Aldridge that she had rejected the People's offer to plead

guilty to something less than the crimes charged against her, and the offer had since been

revoked so her only option was to plead to all charges or go to trial. The court then asked

Aldridge, "So do you think . . . you want to resolve it or do you want to have myself [sic]

or a jury try the case?" Aldridge tried to hand the court a letter, but the court informed

her it could not receive communications directly from her without discussing the matter

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with her attorney. Defense counsel said, "It's not okay with me, Your Honor. I haven't

seen it yet."

       Aldridge then told the court her attorney was "not trying to help [her]." The court

then held a brief Marsden4 hearing and, in a ruling Aldridge does not challenge on

appeal, denied her request for new appointed counsel.

       When proceedings resumed in open court following the Marsden hearing, the

court indicated to Aldridge that the case had been assessed by several judges, the

prosecutor, and her defense attorney. The court said, "[If] it was blatantly not worthy of

being in court, it would probably have been thrown out by now." The court indicated that

the crimes she was accused of committing, including stabbing someone and throwing a

caustic chemical at him, were serious charges that involved "fairly egregious facts" and

were not simply going to be "drop[ped]." Aldridge interjected, "He was choking me, I

had to get him off." The court responded, "But you have to think, do you want a jury to

hear all that, which is going to sound terrible to hear all that stuff, or do you want a judge

to hear it . . . ?" The court reminded Aldridge she was running out of time to "settle" the

case, if that was what she desired to do, and he urged her to consider the matter over the

lunch hour.

       When the hearing resumed following the lunch recess, Aldridge told the court in

the presence of her counsel that she wanted a bench trial. The following exchange then

took place between the court and Aldridge:



4      People v. Marsden (1970) 2 Cal.3d 118.
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          "[The court]: All right, so it is your desire to have a bench trial. Is
          that correct?

          "[Aldridge]: Yes.

          "[The court]: So it's your desire[.] [Y]ou know you have the
          constitutional right under both the California and United States
          Constitution to a jury trial by a jury of your peers? [¶] You
          understand that, correct?

          "[Aldridge]: Yes.

          "[The court]: But it's your desire to waive your right to a jury trial,
          and have the court decide the case otherwise known as a bench trial
          where the judge sits as judge of the law, and judge of the facts. Is
          that what you want to do?

          "[Aldridge]: Yes.

          "[The court]: So you want to waive your right to a jury, is that
          correct?

          "[Aldridge]: Yes.

          "[The court]: Okay. Then that's what we'll do."

       B. Applicable Legal Principles

       The California Supreme Court has explained that "[t]he Sixth Amendment, made

applicable to the states . . . by the Fourteenth Amendment of the federal Constitution,

confers upon a defendant in a criminal prosecution the right to a trial by jury. [Citations.]

The right to a trial by jury is recognized to be a 'fundamental constitutional right.'

[Citations.] Similarly, article I, section 16 of the California Constitution confers upon a

defendant in a criminal prosecution the right to a trial by jury." (People v. Collins (2001)

26 Cal.4th 297, 304 (Collins).) A defendant's waiver of the right to jury trial may not be

accepted by the court unless it is "knowing" and "intelligent," that is, made with full

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awareness both of the nature of the right being abandoned and the consequences of the

decision to abandon it, and made voluntarily in the sense that it was the product of a free

and deliberate choice rather than intimidation, coercion, or deception. (Id. at p. 308.) In

the process of obtaining a defendant's waiver of his or her constitutional right to a jury

trial, the trial court may not act "in a manner that [is] at odds with its judicial obligation

to remain neutral and detached in evaluating the voluntariness of the waiver." (Id. at p.

309.)

        In a criminal prosecution, a defendant's waiver of the right to a jury trial is not

effective unless defense counsel consents to the waiver. (Cal. Const., art. I, § 16 ["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."].)

        Defense counsel's consent to the defendant's waiver of the right to a jury trial may

be express or implied. (19A Cal.Jur.3d (2009) Criminal Law: Rights of the Accused,

§ 267, p. 493.) Furthermore, where the trial court has received from the defendant an

express verbal waiver of his or her right to trial by jury and defense counsel states

nothing regarding the waiver, defense counsel's acquiescence will be given effect as an

implied waiver. (People v. Peace (1980) 107 Cal.App.3d 996, 1008 (Peace) ["If defense

counsel and/or the prosecutor state nothing in regard to the waiver, 'the acquiescence of

defense counsel and the prosecutor will be given effect as implied waivers.'"]; accord,

People v. Evanson (1968) 265 Cal.App.2d 698, 701 (Evanson) ["[I]t is settled that where

an express waiver has been received from the defendant, the acquiescence of defense



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counsel and the prosecutor will be given effect as implied waivers. It is only the waiver

of the defendant himself that must be expressed in language."].)

       C Analysis

       In support of her claim of constitutional error, Aldridge complains that the court

described allegations against her as "fairly egregious facts" and that the court asked her,

"[D]o you want a jury to hear all that, which is going to sound terrible to hear all that

stuff, or do you want a judge to hear it . . . ?" Citing Collins, supra, 26 Cal.4th 297, she

asserts that, "[i]n doing so, the court crossed the line and abandoned the neutral and

detached role which is the essence of a judge," and it improperly sought to persuade her

to waive her right to a jury trial.

       We reject Aldridge's claim of constitutional error. The record shows that

Aldridge, who was represented by counsel, made an informed, intelligent, and voluntary

decision to waive her constitutional right to a jury trial. The remarks by the court to

which she takes exception do not show the court improperly sought to persuade her to

waive her right to a jury trial by implicitly promising her some benefit in exchange for

that waiver. The court's remarks were simply an acknowledgement of the obvious reality

that the nature of the charged offenses, combined by the prosecution's evidence of prior

acts of domestic violence, would "sound terrible" to a jury.

       Aldridge's reliance on Collins, supra, 26 Cal.4th 297, is unavailing. In that case,

the California Supreme Court concluded that the trial court, by advising the defendant

that he "would receive 'some benefit' if he waived his right to a jury trial" (id. at p. 300),

"induced [the] defendant to waive his right to jury trial render[ing] that waiver

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involuntary." (Id. at p. 312.) Here, the record does not show that the court made any

such promise.

       Last, although Aldridge's waiver of the right to a jury trial would have been

ineffective had her trial counsel failed to consent to the waiver (Cal. Const., art. I, § 16),

the record shows that defense counsel impliedly consented to Aldridge's waiver. As

already discussed, defense counsel's consent to the defendant's waiver of the right to a

jury trial may be express or implied (19A Cal.Jur.3d, supra, Criminal Law: Rights of the

Accused, § 267, p. 493.) and defense counsel's acquiescence will be given effect as an

implied waiver (Peace, supra, 107 Cal.App.3d at p. 1008; Evanson, supra, 265

Cal.App.2d at p. 701). Here, the record shows that Aldridge's trial counsel acquiesced in

her waiver of her right to a jury trial. Both Aldridge and her counsel were present at the

hearing on the issue of whether Aldridge wanted to waive that right. After both counsel

made their appearances, the court began by observing that "there [had been] some talk in

chambers that [Aldridge] might want to consider waiving the jury trial." Following the

brief Marsden hearing, the court made its comment about the nature of the allegations

and told Aldridge, "[T]hink about all this over lunch, we'll bring you back at 1:30. I'll

need a decision at that time as to whether or not you want to settle it or what . . . you

want. You've got to start seriously thinking about it because you're running out of time."

The hearing resumed after the lunch recess and, with both counsel present, Aldridge

waived her right to a jury trial. The court then canceled the jury trial and asked both

counsel, "Anything further on the jury trial issue?" The prosecutor responded, "No, just

for the record, the People don't oppose that. So . . . [¶] [w]e will accept the waiver and

                                               9
scheduling is the next question." The court told both counsel that it was "able to start [the

bench trial] this afternoon," and then asked, "Is that okay with both counsel?" Defense

counsel responded, "That's fine with me." The foregoing record establishes that defense

counsel acquiesced in Aldridge's waiver of her right to a jury trial and the waiver was

effective. (Peace, supra, 107 Cal.App.3d at p. 1008; Evanson, supra, 265 Cal.App.2d at

p. 701.)

       For all of the foregoing reasons, we affirm Aldridge's conviction.

                               II. PENALTY ASSESSMENT

       Aldridge also contends the court erred in ordering her to pay a penalty assessment

in conjunction with the restitution fine it imposed under section 1202.4(b). The record

shows that, at sentencing, the court ordered her to "pay [a] restitution fine pursuant to

[section 1202.4(b)] in the amount of $3,360, plus [a] penalty assessment." The Attorney

General acknowledges, and we agree, that the court improperly imposed the penalty

assessment. Subdivision (e) of section 1202.4 specifically provides that "[t]he restitution

fine shall not be subject to penalty assessments . . . ." Accordingly, we conclude the

imposition of a penalty assessment must be stricken.




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                                     DISPOSITION

      The penalty assessment imposed in case No. SCD247909 is stricken. In all other

respects the judgment is affirmed.


                                                                           NARES, J.

WE CONCUR:


BENKE, Acting P. J.


AARON, J.




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