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                                                   Electronically Filed
                                                   Intermediate Court of Appeals
                                                   CAAP-XX-XXXXXXX
                                                   10-JUN-2020
                                                   07:49 AM




                             NO. CAAP-XX-XXXXXXX

                   IN THE INTERMEDIATE COURT OF APPEALS

                           OF THE STATE OF HAWAI#I


                 STATE OF HAWAI#I, Plaintiff-Appellee, v.
                    SIMIN NAJIBI, Defendant-Appellant

          APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
                           HONOLULU DIVISION
                       (CASE NO. 1DTC-16-073875)


                    SUMMARY DISPOSITION ORDER
 (By: Leonard, Presiding Judge, and Hiraoka and Wadsworth, JJ.)

             Defendant-Appellant Simin Najibi (Najibi) appeals from
the Notice of Entry of Judgment and/or Order and Plea/Judgment,1/
filed on July 19, 2017, and the Notice of Entry of Judgment
and/or Order and Plea/Judgment,2/ filed on July 20, 2018, in the
District Court of the First Circuit, Honolulu Division (District
Court).
          Following a bench trial, Najibi was convicted of
Accidents Involving Bodily Injury, in violation of Hawaii Revised
Statutes (HRS) § 291C-12.6(a) (2007).3/

     1/
          The Honorable Thomas A. Haia presided.
     2/
          The Honorable William M. Domingo presided.
     3/
          HRS § 2911C-12.6 provides, in relevant part:

                   Accidents involving bodily injury. (a) The driver of
             any vehicle involved in an accident resulting in bodily
             injury to any person shall immediately stop the vehicle at
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              On appeal, Najibi contends that:
     (1)      the District Court's colloquy with her was insufficient
              to obtain a knowing, intelligent, and voluntary waiver
              of her right to a jury trial;
     (2)      there was insufficient evidence to support her
              conviction;
     (3)      the District Court erred in ordering restitution
              because:
              (a) the complaining witness's (CW) losses were not the
               result of Najibi's criminal conduct;
          (b) the CW's losses were not reasonable and verified;
               and
          (c) the court failed to consider Najibi's financial
               ability to make restitution for the purpose of
               establishing the time and manner of payment; and
     (4) the District Court erred in "interjecting itself into
          the trial" by questioning the CW at trial and at the
          restitution hearing, and "exhibit[ing] bias for the
          State."
          Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Najibi's points of error as follows:
          In State v. Torres, 144 Hawai#i 282, 439 P.3d 234
(2019), the supreme court stated:
              It is well established that Hawai#i law recognizes the right
              to a jury trial as a fundamental right. State v. Ibuos, 75
              Haw. 118, 120, 857 P.2d 576, 577 (1993). This right cannot
              be relinquished absent a knowing, intelligent, and voluntary
              waiver. State v. Friedman, 93 Hawai#i 63, 68, 996 P.2d 268,
              273 (2000). A waiver is knowing and intelligent when it is
              made with "full awareness of both the nature of the right
              being abandoned and the consequences of the decision to



     3/
          ...continue
               the scene of the accident or as close thereto as possible
               but shall then forthwith return to and in every event shall
               remain at the scene of the accident until the driver has
               fulfilled the requirements of section 291C-14. Every such
               stop shall be made without obstructing traffic more than is
               necessary.

                    (b) Any person who violates subsection (a) shall be
              guilty of a misdemeanor.

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             abandon it." Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct.
             1135, 89 L.Ed.2d 410 (1986). A waiver is voluntary when "it
             was the product of a free and deliberate choice rather than
             intimidation, coercion, or deception." Id.
             When determining whether the waiver of a jury trial is
             knowing, intelligent, and voluntary, we have "advised the
             trial courts to conduct Duarte-Higareda's suggested
             colloquy." State v. Gomez-Lobato, 130 Hawai #i 465, 470,
             312 P.3d 897, 902 (2013) (citing Friedman, 93 Hawai #i at 69,
             996 P.2d at 274). In a Duarte-Higareda colloquy, the trial
             court informs the defendant "that (1) twelve members of the
             community compose a jury, (2) the defendant may take part in
             jury selection, (3) a jury verdict must be unanimous, and
             (4) the court alone decides guilt or innocence if the
             defendant waives a jury trial." United States v. Duarte-
             Higareda, 113 F.3d 1000, 1002 (9th Cir. 1997). Here, the
             circuit court engaged Torres in a colloquy that essentially
             tracked the suggested Duarte-Higareda model. However, the
             Duarte-Higareda colloquy does not address whether a waiver
             is voluntary.

Id. at 288-89, 439 P.3d at 240-41 (footnotes and brackets
omitted).
          The court continued: "This court's case law clearly
demonstrates that when a defendant waives a fundamental right,
there must be an affirmative, on-the-record showing that the
waiver of the right is voluntary. It is thus incumbent on the
trial court to have a basis to conclude that a waiver is
voluntary." Id. at 289, 439 P.3d at 241. "Unless voluntariness
is gleaned from the defendant's responses, the trial court must
inquire into the voluntariness of the waiver." Id. (citing State
v. Baker, 132 Hawai#i 1, 7, 319 P.3d 1009, 1015 (2014)).
"Accordingly, a direct question about voluntariness is required
when the defendant's statements in the colloquy do not indicate
that the decision to waive a jury trial is the defendant's own
free and deliberate choice." Id. at 289-90, 439 P.3d at 241-42.
"To determine whether the waiver was voluntary, we evaluate 'the
totality of the facts and circumstances' of the record in [the]
case." Id. at 290, 439 P.3d at 242 (citing Friedman, 93 Hawai#i
at 68-69, 996 P.2d at 273-74).
          Here, on March 17, 2017, the District Court held a
status conference at which Najibi submitted a signed "Waiver of
Jury Trial" form.4/       At that time, the District Court engaged



     4/
          The Honorable Blake T. Okimoto presided.

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Najibi in the following colloquy:

                THE COURT: All right. Let's start -- let's start with
          the waiver of --
                   [DEFENSE COUNSEL]: Of course.
                   THE COURT: -- jury trial.

                   Please state your name.
                   THE DEFENDANT: My name is Simin Najibi.

                   . . . .
                   THE COURT: Miss Najibi, is your mind clear
          today?

                   THE DEFENDANT: Yes, Your Honor.
                THE COURT: You understand what a jury. A jury consists
          of twelve citizens drawn from the community that must agree
          unanimously as to either guilt or -- well, as to guilt
          before you can be convicted. Do you understand that?

                   THE DEFENDANT: Yes, Your Honor.

                THE COURT: All right. Do you also understand that once
          you waive your right to a jury trial, you cannot demand a
          jury trial?

                   THE DEFENDANT: Yes, Your Honor.

                   THE COURT: All right. Very well.
                The court finds that Simin Najibi has knowingly and
          voluntarily waived her right to a jury trial. The court
          accepts the waiver of jury trial.

          Under Torres, this record is insufficient to establish
that Najibi voluntarily waived her right to a jury trial. The
District Court did not ask Najibi a direct question about whether
her waiver was voluntary. Without such a question, Najibi's
responses during the on-the-record colloquy "must demonstrate
that [her] waiver was [her] own decision without influence of
duress or coercion." Torres, 144 Hawai#i at 290, 439 P.3d at
242. On this record, based on the totality of the circumstances,
we cannot conclude that Najibi voluntarily waived her right to a
jury trial. Thus, the District Court erred in ruling that
Najibi's waiver was voluntary. Given our conclusion, we do not
reach Najibi's remaining points of error.
          We therefore vacate the Notice of Entry of Judgment
and/or Order and Plea/Judgment, filed on July 19, 2017, and the
Notice of Entry of Judgment and/or Order and Plea/Judgment, filed

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on July 20, 2018, in the District Court of the First Circuit,
Honolulu Division. The case is remanded to the District Court
for further proceedings consistent with this Summary Disposition
Order.

          DATED:   Honolulu, Hawai#i, June 10, 2020.


On the briefs:
                                      /s/ Katherine G. Leonard
Taryn R. Tomasa,                      Presiding Judge
Deputy Public Defender,
for Defendant-Appellant.
                                      /s/ Keith K. Hiraoka
Chad Kumagai,                         Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee.               /s/ Clyde J. Wadsworth
                                      Associate Judge




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