Filed 6/19/17




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                               S078895
           v.                        )
                                     )
VAENE SIVONGXXAY,                    )
                                     )                          Fresno County
           Defendant and Appellant.  )                   Super. Ct. No. F97590200-2
____________________________________)


        Following a bench trial, defendant and appellant Vaene Sivongxxay was
convicted of one count of first degree murder (Pen. Code, § 187),1 13 counts of
robbery (§§ 211, 212.5), and two counts of attempted robbery (§§ 664, 211,
212.5). The trial court found true the special circumstance allegation that
defendant committed the murder during the commission of a robbery. (§ 190.2,
subd. (a)(17)(A).) At the conclusion of the penalty phase bench trial, the court
imposed a verdict of death.
        This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239,
subd. (b).) We affirm the judgment in its entirety.
                                      I. FACTS
        Defendant was tried jointly with codefendant Oday Mounsaveng. Both
defendants were tried by a judge sitting without a jury.

1       All subsequent statutory references are to the Penal Code.




                SEE CONCURRING & DISSENTING OPINIONS
       A. Guilt Phase

           1. Prosecution Evidence
       Defendant and Mounsaveng committed a series of robberies in Fresno
between July and December 1996.

                a. Thanh Tin Jewelry Attempted Robbery
       On July 31, 1996, Mounsaveng walked into the Thanh Tin Jewelry store,
asked to examine a gold chain, and then left. He returned with defendant about an
hour later. The men looked around for a long time without buying anything.
Liem Phu Huynh, the owner of the jewelry store, asked the men why they were
taking so long. Mounsaveng and defendant claimed they were brothers and were
waiting for their sister to arrive. Eventually, they left.
       When defendant and Mounsaveng returned to the store later that afternoon,
Huynh was working in a back room, and his wife Phung Ngoc Ho was behind the
sales counter. After asking to examine several items, Mounsaveng pulled a
handgun out of his waistband, grabbed Ho by the collar, and pointed the gun at
her. Huynh, who was watching from the back room, set off an alarm.
Mounsaveng and defendant fled.

                b. First JMP Mini-Mart Robbery
       On the afternoon of August 16, 1996, Bobbie Her was working behind the
counter at her parents‘ convenience store, JMP Mini-Mart. Mounsaveng entered
and asked whether the store cashed checks. When Bobbie answered that it did,
Mounsaveng left. He eventually returned with defendant, and the two men milled
about the store. Bobbie‘s father Xeng Wang Her arrived and began restocking
drinks in the store‘s refrigerator case. Defendant walked up to Xeng, pointed a
handgun at him, and forced him to walk toward the cash register. Defendant then
forced Xeng to lie down and kicked him in the back of the head. Meanwhile,
Mounsaveng jumped over the counter and forced Bobbie to open the cash register.

                                           2
Mounsaveng and defendant took all of the money in the store, ripped a cordless
phone off the wall, and then fled in a blue pickup truck.

               c. Phnom Penh Jewelry Robbery
       On October 10, 1996, defendant entered the Phnom Penh Jewelry store.
Mounsaveng followed a few minutes later and asked the store‘s owner, Kee Meng
Suy, to repair a Buddha pendant. Suy recognized Mounsaveng because he had
brought in the same pendant for repair a few months before. Suy took the pendant
to his workbench in the store‘s back room. While Suy was working, his wife
Suntary Heng showed Mounsaveng some other pieces of jewelry. Suy finished
repairing the pendant and handed it back to Mounsaveng, who said he was not
satisfied with the work and asked Suy to do it again. Suy returned to his work
bench. Heng then took the couple‘s two young children, who were at the store
that day, into the back room to get some food.
       At that point, defendant and Mounsaveng forced their way into the back
room, pointed guns at Suy‘s head, and told him to ―stay still.‖ Defendant and
Mounsaveng punched Suy, pushed him to the floor, and used tape and an
extension cord to bind his limbs and cover his mouth and eyes. Both men then
punched, kicked, and stomped Suy as Heng and the couple‘s two children
watched. Mounsaveng demanded Suy‘s gun and the videotape from the store‘s
security camera, but Heng explained he had no gun and the camera was broken.
Eventually, Suy lost consciousness. As Mounsaveng and defendant cleared out
the store‘s safe and the jewelry in its display cases, Heng activated a silent alarm.
The two men fled in a light blue Honda.

               d. Second JMP Mini-Mart Robbery
       Mounsaveng and defendant returned to the JMP Mini-Mart on
December 14, 1996. Xeng Wang Her was working in the store with his wife,



                                          3
Phayvane Boulome, and there were five or six customers inside. Upon entering
the store, both Mounsaveng and defendant pulled out guns, told the customers to
lie on the ground, and demanded that Xeng and Boulome open the cash register.
Mounsaveng took money from the cash register and also picked up Xeng‘s gun,
which was underneath the counter. Mounsaveng then forced Xeng into a back
room, where Mounsaveng took cigarettes and change. After that, Mounsaveng
grabbed Boulome and demanded that she open a second cash register, but she
explained it was broken. Before leaving, Mounsaveng and defendant took money
and jewelry from the customers at gunpoint. In the course of robbing the
customers, defendant kicked an elderly woman in the mouth. One customer
recalled seeing an unoccupied white car outside the store with its engine running.

               e. Sean Hong Jewelry Robbery and Murder
      In November 1996, defendant sold some rings and other items to the Sean
Hong Jewelry store. He also left a Buddha pendant to be repaired.
      On December 19, 1996, three days after the second JMP Mini-Mart
robbery, Mounsaveng and defendant paid a visit to the Sean Hong store. Seak
Ang Hor, the wife of store owner Henry Song, was working behind the sales
counter. Hor told defendant that his Buddha pendant was ready to be picked up,
but he said he did not have the money to pay for it. Mounsaveng asked to see the
pendant anyway. Song retrieved the pendant from a safe in the store‘s back room
and came out to show it to Mounsaveng and defendant.
      After the men were finished looking at the pendant, Song started walking
toward the back room. Mounsaveng pulled out a gun and screamed ―give the
money and gold.‖ Defendant also brandished a gun. Defendant and Mounsaveng
forced Song and Hor into the back room; Mounsaveng then left and closed the
door. Defendant demanded that Hor open the safe, but she refused. Song



                                         4
attempted to grab defendant‘s gun, and the two men engaged in a hand-to-hand
struggle. Mounsaveng returned to the back room and beat Song on the head with
his gun. Hor pressed a silent alarm button, prompting Mounsaveng to pull her out
of the back room. Once in the front area of the store, Hor kicked the wall in an
effort to alert the business owner next door. At some point, she heard
Mounsaveng say ―let‘s go.‖ Defendant forced Hor to give him cash from her
purse. He also smashed a display case and took jewelry.
       After Mounsaveng and defendant left, Hor found her husband lying on the
floor of the back room with blood coming out of his mouth. Song died within the
hour. The cause of death was perforation of the heart and lungs from three
gunshot wounds.
       Hor did not see either of the robbers shoot her husband, nor did she recall
hearing the gunshots. However, the robbery was partially captured on the store‘s
video camera. A Fresno Police Department detective testified that in reviewing a
video of the incident, he could identify a moment when several gunshots were
audible. At that moment, defendant and Song were not in the camera‘s frame, but
Mounsaveng and Hor were. Mounsaveng was pointing his gun toward the
location where defendant and Song were fighting. After the shots were fired,
Mounsaveng moved out of the frame and toward the back room, where defendant
and Song had been fighting. Ballistics evidence showed that all of the bullets
were fired from the same gun. In the video, one of the defendants is heard to say,
―shoot, shoot.‖
       Defendant was arrested on February 12, 1997, and agreed to be interviewed
by a Fresno Police Department detective. He initially denied involvement in the
robberies. However, after the detective showed him stills from the Sean Hong
Jewelry store‘s video camera, defendant admitted he took part in the robbery. At
first, he claimed Mounsaveng was the one who shot Henry Song. Defendant

                                         5
described his struggle with Song and claimed that Song hit him on the head with a
chair. But when the detective asked how the struggle ended, defendant confessed
that he, not Mounsaveng, had shot Song. He apologized for lying at the outset of
the interview and said he was sorry to Song‘s family for what he had done.
Defendant also told the detective that Mounsaveng forced him to rob the Sean
Hong Jewelry store and that he was so high on cocaine that day he could hardly
think.

             2. Defense Evidence
         A toxicologist who screened defendant the day after his arrest testified that
his blood tested positive for alcohol and cocaine. The manager of an apartment
building located near the JMP Mini-Mart (Mini-Mart) testified that on
December 14, 1996, the day of the second Mini-Mart robbery, he saw two teenagers
running down the street, one of whom had a ponytail. Police later found a stolen
white Toyota Camry in the parking lot of the apartment building. An officer who
tested latent fingerprints from the Thanh Tin Jewelry store and the second Mini-
Mart robbery testified that none of the prints matched defendant or Mounsaveng.
A different officer testified that none of the witnesses to the second Mini-Mart
robbery mentioned in their initial interviews that the robbers had tattoos. Finally,
defense counsel introduced records indicating that defendant was in prison in
Washington State from 1993 until February 1996, which countered Mounsaveng‘s
allegation that defendant was among a group of men who threatened him in
December 1995 and January 1996. In closing argument, defense counsel challenged
the eyewitness identifications of his client, suggested that defendant perceived
himself to be under imminent threat during his struggle with Song, and asserted that
defendant may have been under the influence of drugs or coerced by Mounsaveng.




                                           6
       Mounsaveng admitted his role in the robberies but claimed he acted under
duress.

           3. Trial Court’s Findings
       The trial court found both defendants guilty of first degree murder. The
court also found ―beyond a reasonable doubt that the special circumstance against
each defendant ha[d] been proven,‖ stating that ―[t]here is no doubt that this
murder was committed during the commission of the robbery‖ of the Sean Hong
Jewelry store. In addition, the court found both defendants guilty of 13 counts of
robbery and two counts of attempted robbery, and it found insufficient evidence to
support either defendant‘s duress defense.

       B. Penalty Phase

           1. Aggravating Evidence

               a. Victim Impact Evidence
       Seak Ang Hor, Henry Song‘s widow, talked about her husband‘s life and
described how his murder had affected her. Hor and Song had been married for
about 30 years and had five children. The family emigrated to the United States in
1981 to escape conflict in Cambodia. At the time of the murder, Song had owned
the Sean Hong Jewelry store for about four years. The family‘s entire life savings
was invested in the business, and they had no insurance. Hor closed the jewelry
store after her husband‘s murder.
       Two of Song‘s adult children, David and Lilly, also testified. David
described cleaning up the store after the murder. He also testified that everyone in
the family now had to work harder to support their mother and youngest brother.
Lilly, who had renewed her driver‘s license on the day of the murder, said that
―every time I use my license, it reminds me . . . of the pain, that he was killed.‖
She also had to drop out of college because she could not concentrate.


                                          7
                b. Prior Criminal Activity
       The prosecution introduced evidence of defendant‘s prior criminal activity
involving the use of force. (§ 190.3, factor (b).) On September 8, 1992, defendant
and several accomplices broke into a home in Kennewick, Washington, and
robbed the inhabitants at gunpoint. Defendant was convicted of first degree
robbery and sentenced to 55 months in prison in Washington State. However, he
escaped from custody on February 28, 1996.
       Defendant‘s girlfriend S. K., with whom defendant lived during the 1996
Fresno robberies, testified that he was violent and abusive.
       On September 5, 1996, Fresno police pulled over a vehicle in which
defendant was a passenger. A handgun was found inside the car. The vehicle‘s
driver testified that an Asian man carrying a gun had offered him money for a ride
and that as the police pulled them over, the Asian man offered him more money to
say that the gun was his. However, the driver could not say for sure whether that
man was defendant.
       On January 17, 1997, Ty K., the brother of defendant‘s girlfriend, called the
police because defendant was acting in a drunk and belligerent manner. Police
arrested defendant for unauthorized possession of a firearm, possession of a
controlled substance, and vandalism.
       When awaiting trial for the charged crimes, defendant was detained at the
Fresno County Jail. On March 9, 1997, a correctional officer told defendant that
he was being placed in isolation due to a fight with another inmate. Defendant
became hostile and told the officer, ―I see you all the time on the streets, I‘ll
remember you.‖ On May 15, 1997, another correctional officer found among
defendant‘s possessions a piece of metal she described as a ―shank.‖




                                           8
                c. Prior Felony Convictions
       The prosecution introduced conviction records showing that defendant had
1992 and 1993 Oregon felony convictions for unauthorized use of a vehicle as
well as a 1993 Washington State conviction for first degree armed robbery.
(§ 190.3, factor (c).)

              2. Mitigating Evidence
       Defendant testified on his own behalf. He was born in Laos, but his family
was forced to flee the country after the Communists came to power because his
father and brother had fought alongside the United States Army. The family
resettled in a refugee camp in Thailand. Defendant‘s family was poor, and he
received no formal education. He was conscripted into the Thai army for five
years. Aside from his stint in the army, defendant lived in the refugee camp until
he came to the United States in 1987. When in prison for a prior offense,
defendant referred himself to a chemical dependency program.
       In his penalty phase closing argument, defendant‘s counsel emphasized his
client‘s difficult upbringing, his confession and expressions of remorse, and his
drug addiction, as well as guilt phase testimony suggesting that defendant shot
Song in the course of a struggle for defendant‘s gun.

              3. Sentencing
       Before announcing its sentencing decisions, the trial court indicated it had
considered, in mitigation, both defendants‘ difficult backgrounds; defendant‘s
drug addiction and his ―request for help with chemical dependence‖; his
confession and expressions of remorse; and the evidence that he may have
―perceived necessity and self-defense‖ in shooting Song due to the store owner‘s
resistance.




                                         9
       In aggravation, the trial court found that all of the alleged crimes of
violence and the prior felony convictions had been proved beyond a reasonable
doubt. The court observed that ―defendant has shown a long pattern of violent
crime against many, many victims.‖ The court cited defendant‘s criminal history;
the violence he exhibited in the charged offenses, including the killing of Henry
Song; and defendant‘s conduct in custody since his arrest.
       The trial court concluded that ―[r]egarding Mr. Sivongxxay, as unpleasant
as it is, I find the death sentence to be justified and appropriate.‖
                                  II. DISCUSSION
       In his appeal, defendant challenges the validity of his jury waiver and the
trial court‘s consideration of certain evidence at the penalty phase. He also raises
several challenges to the constitutionality of the death penalty.

       A. Guilt Phase
       As previously discussed, the guilt and penalty phases of defendant‘s trial
proceeded before a court sitting without a jury. Defendant asserts that he did not
enter a valid waiver of his right to a jury trial, in derogation of his rights under the
state and federal Constitutions and state statutory law.

           1. Waiver of a Jury Trial
       Both defendant and Mounsaveng were present at the pretrial waiver hearing
and were represented by counsel. The colloquy proceeded as follows:
       ―THE COURT: Okay. Oday Mounsaveng and Vaene Sivongxxay.
       ―MS. DETJEN: Jennifer Detjen, appearing for the People.
       ―MR. PETILLA: Rudy Petilla, for Mr. Sivongxxay.
       ―MR. KINNEY: Ernest Kinney, present in court, for Tony Vong [an alias
       of Oday Mounsaveng].




                                           10
―THE COURT: This matter is currently set for trial. What do we have, the
11th?
―MS. DETJEN: That‘s good.
―THE COURT: January 11th. Status of the case?
―MR. KINNEY: Your Honor, I believe we‘re ready to proceed on the 11th.
I‘ve talked with cocounsel and the DA, and for a variety of reasons —
we‘re prepared to go. We‘re prepared to — waive a jury trial and have a
judge trial in this death penalty case.
―MR. PETILLA: That‘s correct, Your Honor, and I have, of course —
would acknowledge that this particular court would still be hearing the
case.
―THE COURT: Yes, it‘s been assigned to me for all purposes. Ms. Detjen,
People‘s position?
―MS. DETJEN: People are ready to waive a jury trial in this case.
―THE COURT: All right. And I think the record should show — since this
is a capital case — that, and the record is void of any in-chambers‘ [sic]
discussions on this. We haven‘t had any.
―MS. DETJEN: That‘s correct.
―MR. PETILLA: Yes.
―MR. KINNEY: That‘s correct.
―THE COURT: Mr. Mounsaveng, Mr. Sivongxxay, you each have a right
to a trial, either by a jury of 12 people selected from this community,
through a process that you would engage in with your attorneys, the district
attorney and the Court, or a trial in front of a judge, acting alone without a
jury. [¶] The burden of proof remains the same. The district attorney has
the burden to go forth with evidence sufficient to prove your guilt beyond a
reasonable doubt. Then, and only then, would we get to a penalty phase.

                                   11
       [¶] In a court trial, I would hear the evidence. I, alone, would make the
       decision on whether that evidence was sufficient to prove your guilt beyond
       a reasonable doubt. [¶] In the event I made such a finding, as to either or
       both of you, we would then proceed to a penalty phase, where the district
       attorney would present aggravation evidence. Through your — you,
       through your attorney, would have a right to present mitigation evidence,
       and it would fall upon me to make the decision as to the appropriate
       punishment, which could result in a death penalty sentence. [¶] Do you
       give up your right to a jury trial and agree that this Court, alone, will make
       those decisions, Mr. Mounsaveng?
       ―THE DEFENDANT MOUNSAVENG: Yes.
       ―THE COURT: Mr. Sivongxxay?
       ―THE DEFENDANT SIVONGXXAY: Yes.
       ―THE COURT: Ms. Detjen?
       ―MS. DETJEN: Yes, Your Honor, the People waive the jury trial.
       ―THE COURT: All right. We‘ll show a jury waiver on all issues, confirm
       the matter for January the 11th. We‘ll notify the jury commissioner that
       they do not need to send out any summonses, and we will start with the
       pretrial matters on that day. . . .‖
       There was no further discussion of jury waiver throughout the remainder of
the trial proceedings.
       Under the federal Constitution and our state Constitution, a defendant in a
criminal prosecution has a right to a jury trial. (U.S. Const., amend. VI; Cal.
Const., art. I, § 16; People v. Weaver (2012) 53 Cal.4th 1056, 1071 (Weaver).)
However, 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

                                              12
implied from a defendant‘s conduct.‖ (People v. Holmes (1960) 54 Cal.2d 442,
443-444 (Holmes).) Moreover, ―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 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.‘ ‖ ‘ ‖ (People v. Collins (2001) 26 Cal.4th
297, 305 (Collins), quoting Moran v. Burbine (1986) 475 U.S. 412.) ―[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.‖ (Adams v.
U.S. ex rel. McCann (1942) 317 U.S. 269, 278 (Adams).)
       Defendant acknowledges that he expressly stated on the record that he gave
up his right to a jury trial, and he makes no claim that his purported waiver was
coerced or otherwise involuntary. Instead, he asserts that his decision to waive his
jury trial right was not knowing and intelligent. Specifically, he contends that as a
Laotian refugee with no formal education and limited command of the English
language, he would not have understood what the right to trial by jury entailed
unless the trial court or counsel explained it to him. Defendant points out that the
trial court‘s waiver colloquy did not explain that a jury must be impartial, that its
verdict must be unanimous, or that the trial court must declare a mistrial if the jury
fails to reach a verdict. The trial court also did not ask any questions confirming
that defendant understood how a jury works, or that defendant had discussed the
jury waiver with his counsel.
       Our precedent has not mandated any specific method for determining
whether a defendant has made a knowing and intelligent waiver of a jury trial in
favor of a bench trial. We instead examine the totality of the circumstances. (See
Adams, supra, 317 U.S. at p. 278; cf. People v. Marlow (2004) 34 Cal.4th 131,

                                          13
148 [looking to the ―totality of the circumstances‖ in ascertaining whether a
defendant knowingly and intelligently waived his rights in entering a guilty plea];
People v. Howard (1992) 1 Cal.4th 1132, 1175 (Howard) [same].)
       Here, we conclude that defendant entered a knowing and intelligent jury
waiver. Although defendant is a Laotian refugee with no formal education and
limited English proficiency, he was represented by counsel and assisted by a
translator throughout the trial. The defense initiated the request for a court trial.
In response, the trial court advised defendant that he had a right to a jury trial, that
a jury consists of 12 people from the community, that he would have the right to
participate in the selection of the jury, and that waiver of the right to a jury would
mean the judge alone would determine his guilt or innocence and any resulting
punishment. After these advisements, defendant answered ―Yes‖ when asked
whether he wished to ―give up [his] right to a jury trial and agree that this Court,
alone, will make those decisions.‖ The trial court then observed that the waiver
applied to ―all issues‖ at trial.2 Additionally, defendant had prior experience with
the criminal justice system, having pleaded guilty to two prior offenses in Oregon
and one in Washington State. In 1993, in connection with his guilty plea in
Washington, he signed a waiver stating that he ―fully underst[ood]‖ his right to a
jury trial. (See Parke v. Raley (1992) 506 U.S. 20, 37 [―evidence of a defendant‘s


2       Although the judge made this observation after defendant orally waived a
jury trial, the totality of the circumstances approach permits a reviewing court to
take into account events that follow the entry of a jury waiver to confirm matters
such as the waiver‘s character and scope. (See, e.g., U.S. v. Boynes (4th Cir. 2008)
515 F.3d 284, 287; U.S. v. Page (5th Cir. 1981) 661 F.2d 1080, 1083; State v.
Clemons (Kan. 2002) 45 P.3d 384, 393; State v. Baxter (Mo. 2006) 204 S.W.3d
650, 654.) Here, defendant‘s failure to express any surprise or confusion
regarding the judge‘s assertion that the waiver applied to ―all issues‖ represents a
relevant consideration in ascertaining the nature and extent of his waiver.



                                           14
prior experience with the criminal justice system [is] relevant to the question
whether he knowingly waived constitutional rights‖]); People v. Langdon (1959)
52 Cal.2d 425, 432 [observing, in ascertaining whether there had been a knowing
and intelligent waiver of the jury trial right, that the defendant ―had also been
before the criminal courts on at least three previous occasions‖]; State v. Rizzo
(Conn. 2011) 31 A.3d 1094, 1112 (Rizzo) [considering a defendant‘s prior
experience with the criminal justice system as relevant to whether the defendant
entered a knowing and intelligent jury waiver]; People v. Bannister (Ill. 2008) 902
N.E.2d 571, 584 [same]; Poore v. State (Ind. 1997) 681 N.E.2d 204, 207 [same].)
Viewed holistically, the circumstances surrounding defendant‘s jury waiver
demonstrate that it was knowing and intelligent.
       Defendant points out that the trial court did not mention that a jury must be
impartial, and must also be unanimous in order to render a verdict. But ―[t]he
United States Supreme 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‖ (Rizzo, supra, 31 A.3d at
p. 1116; see also U.S. v. Cochran (9th Cir. 1985) 770 F.2d 850, 851 (Cochran)),3
and we have never insisted that a jury waiver colloquy invariably must discuss
juror impartiality, the unanimity requirement, or both for an ensuing waiver to be
knowing and intelligent. (See People v. Tijerina (1969) 1 Cal.3d 41, 45-46
[finding a jury waiver knowing and intelligent even though the defendant was not
advised of the unanimity requirement].) It is true that in many cases in which we
have upheld a waiver of a jury trial, we have observed that the defendant had been


3      Our state Constitution, of course, requires as a minimum that a jury waiver
be ―expressed in open court by the defendant and the defendant‘s counsel.‖
(Cal. Const., art. I, § 16; see People v. Ernst (1994) 8 Cal.4th 441, 445.)



                                           15
expressly advised that unanimity among the 12 jurors is necessary to render a guilt
or penalty verdict. (See People v. Cunningham (2015) 61 Cal.4th 609, 636;
People v. Scott (1997) 15 Cal.4th 1188, 1208 (Scott); People v. Diaz (1992) 3
Cal.4th 495, 570 (Diaz); People v. Robertson (1989) 48 Cal.3d 18, 37, fn. 5
(Robertson).) But under the totality of the circumstances standard, the presence or
absence of a reference in a colloquy to this particular attribute of a jury trial, or to
the impartiality requirement, is not necessarily determinative of whether a waiver
meets constitutional standards. (See Weaver, supra, 53 Cal.4th at pp. 1072-1074
[rejecting a defendant‘s argument that the failure to advise him of his right to
participate in jury selection necessarily rendered his jury waiver invalid]; U.S. v.
DeRobertis (7th Cir.1983) 715 F.2d 1174, 1186 [finding a knowing and intelligent
jury waiver notwithstanding the trial court‘s failure to advise the defendant of the
juror vote necessary to convict]; Rizzo, supra, 31 A.3d at p. 1118 [―this court and
others have rejected claims that an otherwise valid waiver of the right to a jury is
undermined by the trial court‘s failure to include a specific item of information in
its canvass‖].) With the circumstances presented here, we are not persuaded that
the trial court‘s failure to mention these characteristics of a jury trial renders
defendant‘s waiver constitutionally infirm.
       At the same time, we use this opportunity to emphasize the value of a
robust oral colloquy in evincing a knowing, intelligent, and voluntary waiver of a
jury trial. Although our case law has eschewed any rigid formula or particular
form of words that a trial court must use in taking a jury waiver, we observe that
many other courts have offered guidance regarding important components of the
waiver colloquy. (See, e.g., U.S. v. Delgado (7th Cir. 1981) 635 F.2d 889, 890
[trial courts ―should explain that a jury is composed of twelve members of the
community, that the defendant may participate in the selection of jurors, and that
the verdict of the jury is unanimous. The court should inform the defendant that if

                                           16
he waives a jury, the judge alone will decide guilt or innocence‖]; U.S. v.
Robertson (10th Cir. 1995) 45 F.3d 1423, 1432 [same]; Marone v. U.S. (2d Cir.
1993) 10 F.3d 65, 68 [same]; U.S. v. Martin (6th Cir. 1983) 704 F.2d 267, 274-275
[same]; State v. Blann (N.J. 2014) 90 A.3d 1253, 1253 [same]; State v. Redden
(W.Va. 1997) 487 S.E.2d 318, 326 [adopting the same advisements and also
suggesting that a trial court should ―ascertain on the record whether improper
pressure or inducements, or a confused mental state, have affected the defendant‘s
decision to waive the right to a jury trial‖]; U.S. v. Duarte-Higareda (9th Cir.
1997) 113 F.3d 1000, 1002 (Duarte-Higareda) [stating that the district court
should advise a defendant of these factors and ―question the defendant to ascertain
whether the defendant understands the benefits and burdens of a jury trial and
freely chooses to waive a jury‖]; State v. Anderson (Wis. 2002) 638 N.W.2d 301,
310 [adopting similar advisements and also stating that a trial court must ensure
that the defendant ―made a deliberate choice, absent threats or promises, to
proceed without a jury trial” and “had enough time to discuss this decision with
his or her attorney”].)
       Consistent with these decisions, we offer some general guidance to help
ensure that a defendant‘s jury trial waiver is knowing and intelligent, and to
facilitate the resolution of a challenge to a jury waiver on appeal. Going forward,
we recommend that trial courts advise a defendant of the basic mechanics of a jury
trial in a waiver colloquy, including but not necessarily limited to the facts that
(1) a jury is made up of 12 members of the community; (2) a defendant through
his or her counsel may participate in jury selection; (3) all 12 jurors must
unanimously agree in order to render a verdict; and (4) if a defendant waives the
right to a jury trial, a judge alone will decide his or her guilt or innocence. We
also recommend that the trial judge take additional steps as appropriate to ensure,
on the record, that the defendant comprehends what the jury trial right entails.

                                          17
A trial judge may do so in any number of ways — among them, by asking whether
the defendant had an adequate opportunity to discuss the decision with his or her
attorney, by asking whether counsel explained to the defendant the fundamental
differences between a jury trial and a bench trial, or by asking the defendant
directly if he or she understands or has any questions about the right being waived.
Ultimately, a court must consider the defendant‘s individual circumstances and
exercise judgment in deciding how best to ensure that a particular defendant who
purports to waive a jury trial does so knowingly and intelligently.
       This guidance, of course, pertains only to waiver of a jury trial in favor of a
bench trial. Furthermore, we emphasize that our guidance is not intended to limit
trial courts to a narrow or rigid colloquy. We agree with the Connecticut Supreme
Court that ultimately, a ― ‗defendant‘s rights are not protected only by adhering to
a predetermined ritualistic form of making the record. Matters of reality, and not
mere ritual, should be controlling.‘ ‖ (Rizzo, supra, 31 A.3d at p. 1120.)
Accordingly, the guidance above is advisory. As reflected in our determination
here that defendant entered a knowing and intelligent waiver of his right to a jury
trial, 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. (See
U.S. v. Rodriguez (7th Cir. 1989) 888 F.2d 519, 527 [describing the advisements
prescribed in U.S. v. Delgado, supra, 635 F.2d 889, as ―called for as a matter of
prudence,‖ and observing that ―[l]esser (even no) warnings do not call into
question the sufficiency of the waiver so far as the Constitution is concerned‖];
Cochran, supra, 770 F.2d at p. 851.) Reviewing courts must continue to consider




                                         18
all relevant circumstances in determining whether a jury trial waiver was knowing,
intelligent, and voluntary.4

           2. Jury Waiver for the Special Circumstance Allegation
       Defendant also contends that he did not validly waive his right to a jury
trial with respect to the special circumstance allegation. He observes that ―the trial
court made no mention of the special circumstance determination or the right to a
jury trial thereon,‖ and that defense counsel never stated on the record that he had
discussed the special circumstance determination with his client. Defendant
asserts that he therefore cannot be found to have entered a separate waiver of a
jury trial for this allegation, as is required under People v. Memro (1985)
38 Cal.3d 658, 700-704 (Memro), and that his general jury waiver cannot be
understood as incorporating a knowing and intelligent surrender of his right to
a jury trial concerning the allegation.
       Defendant‘s argument merges what are in fact two separate questions:
whether his jury waiver was knowing and intelligent regarding the special
circumstance allegation, and thereby met constitutional standards; and whether
state law statutory error occurred under Memro, due to a failure to satisfy that
decision‘s requirement for complying with certain provisions of the Penal Code.
We find that there was a knowing and intelligent waiver regarding the special
circumstance allegation, but agree with defendant that there was error under
Memro. On the record before us, however, this error was harmless.



4      Given the importance of this issue, we note that the Judicial Council of
California may choose to refer the question to its criminal law committee to study
and propose measures to assist trial courts in ensuring the validity of jury trial
waivers.




                                          19
                 a. Adequacy of the Jury Waiver for the Special Circumstance
                     Allegation Under the Federal and State Constitutions
       A defendant who has been convicted of first degree murder is eligible for
the death penalty only if the prosecution has charged, and the trier of fact has
found true, one or more statutorily enumerated special-circumstance allegations.
(§ 190.2, subd. (a).) ―Whenever special circumstances . . . are alleged and the trier
of fact finds the defendant guilty of first degree murder, the trier of fact shall also
make a special finding on the truth of each alleged special circumstance.‖
(§ 190.4, subd. (a).) With the exception of a prior-murder special-circumstance
allegation (§ 190.2, subd. (a)(2)), which requires a separate proceeding, ―[i]f the
trier of fact finds the defendant guilty of first degree murder, it shall at the same
time determine the truth of all special circumstances charged . . . .‖
(§ 190.1, subd. (a).)
       Defendant asserts that there was no knowing and intelligent waiver of his
right to a jury trial concerning the robbery-murder special circumstance alleged
against him. He does not argue that he was unaware of the special circumstance,
or that he did not appreciate that he could receive the death penalty if it were
found true. Rather, he emphasizes that the trial court never explicitly told him that
he had a right to a jury trial for the special circumstance allegation. Defendant
argues that this omission, viewed in the context of the record as a whole, means
that he cannot be understood to have entered a valid waiver of his right to a jury
trial for this allegation.
       Defendant demands more than the federal and state Constitutions require
for a valid waiver of the jury trial right. As discussed, a knowing and intelligent
jury waiver requires an appreciation of the nature of the jury trial right and the
consequences of forgoing this right. (Collins, supra, 26 Cal.4th at p. 305.) There
is no additional constitutional requirement that a defendant be specifically advised



                                           20
of the specific charges, enhancements, allegations, or other issues to which a
general jury waiver will apply. On the contrary, with a comprehensive jury waiver
such as the one entered below, absent unusual circumstances not present here
― ‗[i]t is settled that where a defendant waives a jury trial he is deemed to have
consented to a trial of all of the issues in the case before the court sitting without a
jury.‘ ‖ (People v. Berutko (1969) 71 Cal.2d 84, 94 (Berutko), quoting People v.
Russell (1961) 195 Cal.App.2d 529, 532; see also People v. Jarmon (1992) 2
Cal.App.4th 1345, 1354-1355;5 see generally 6 LaFave et al., Criminal Procedure
(4th ed. 2015) § 22.1(h), p. 48 [―A jury waiver generally waives the right to a jury
determination of all of the elements of an offense, including facts that authorize a
higher sentencing range, treated as elements under the Court‘s Apprendi line of
cases‖] and cases cited.)6 Under this prevailing rule, our earlier determination that

5      As will be explained post, Memro construed two statutes as demanding
more specificity than is constitutionally required for a jury waiver concerning a
special circumstance allegation. Memro distinguished the general rule, as stated in
Berutko, as inapposite as a matter of statutory construction. (Memro, supra, 38
Cal.3d at p. 702, fn. 52.) But the added precision demanded as a matter of state
statutory law under Memro does not mean that in order to satisfy the constitutional
standard of a knowing, voluntary, and intelligent waiver of a jury trial for a special
circumstance allegation, a jury waiver colloquy must expressly reference the
allegation.
6       The relevant section of the LaFave treatise further provides: ―When a jury
trial of guilt and enhancements are separated, a defendant convicted by jury at the
earlier phase should have an opportunity to waive a jury for the enhancement
phase.‖ (6 LaFave, supra, § 22.1(h), p. 48.) In this case, of course, there is no
issue presented with regard to whether a defendant who has invoked a jury trial as
to guilt or innocence may waive a jury with regard to a charged
special-circumstance allegation.
        Furthermore, the applicable California statutes provide for a separate trial
of a special-circumstance allegation only when a prior murder special
circumstance is charged (§ 190.1, subd.(b)); a separate trial is not provided for any
other special-circumstance allegation, including a robbery-murder
                                                           (Footnote continued on next page.)


                                           21
defendant‘s general waiver of a jury trial was knowing and intelligent is sufficient
in itself to defeat defendant‘s contention that his waiver did not meet constitutional
standards with regard to the special circumstance allegation.7

(Footnote continued from previous page.)

special-circumstance allegation as involved in this case. (§ 190.1, subd. (a).)
Even in an instance in which a defendant who has waived a jury as to guilt or
innocence chooses to invoke the right to a jury with regard to such a
special-circumstance allegation ― a circumstance that, albeit theoretically
possible, to our knowledge has not ever occurred in practice― the trial of the
special-circumstance allegation need not be separated from the guilt trial. In such
a case, after the presentation of the relevant evidence before the court and the jury
concurrently in a single trial, the jury can be required to return a verdict on the
special-circumstance allegation in the event the trial court finds the defendant
guilty of the charged murder offense.
7       The general rule recognized in Berutko presents no conflict with the results
reached in State v. Schofield (Me. 2005) 895 A.2d 927 (Schofield) and State v.
Williams (Or.Ct.App. 2005) 104 P.3d 1151 (Williams), where courts construed
previously entered jury waivers as limited to charged crimes, and not as extending
to the adjudication of additional facts that served to lengthen the defendants‘
sentences — facts that, due to the state of the law at the time the defendants
entered their jury waivers, neither they nor their counsel had reason to believe
were triable by a jury.
        The defendants in both Schofield, supra, 895 A.2d 927, and Williams,
supra, 104 P.3d 1151, waived their right to a jury trial for criminal charges, were
convicted, and then were sentenced to extended terms of imprisonment premised
in part on additional findings made by the trial courts. (Schofield, at pp. 929-930;
Williams, at p. 1152.) After the United States Supreme Court issued its decision in
Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the defendants challenged
their respective sentences on the ground that the judicial fact finding that had
occurred deprived them of their Sixth Amendment right to a jury trial. In
Williams, the state responded that the defendant‘s waiver of a jury trial for the
underlying charge necessarily implied a waiver of his right to a jury trial
concerning the enhancement; a similar argument was advanced in Schofield.
(Schofield, at pp. 930-931; Williams, at p. 1152.)
        Each court rejected the state‘s position. Williams, supra, 104 P.3d 1151,
emphasized that ―[a]t the time that defendant opted for a court trial, he not only
was unaware that he had a right to a jury determination of facts used to impose a
                                                          (Footnote continued on next page.)


                                           22
        Defendant‘s argument would fail even if we were to assume that —
contrary to the conventional rule — a constitutionally sufficient general jury
waiver does not necessarily incorporate a knowing and intelligent waiver of a jury
trial for a special circumstance allegation in a capital case. Here, the specific
advisements the trial court provided to defendant before taking his waiver,
together with the other surrounding circumstances, confirm that defendant
knowingly and intelligently relinquished his right to a jury trial for this allegation. 8

(Footnote continued from previous page.)

dangerous offender sentence, but he also did not know of the possibility of such a
sentence.‖ (Id., at p. 1153.) Schofield, supra, 895 A.2d 927, determined that
―[b]ecause Schofield, prior to Blakely, did not know that she had a right to have a
jury determine, beyond a reasonable doubt, any facts necessary to increase her
sentence beyond twenty years . . . her waiver extends only to the findings
necessary to determine her guilt or innocence to the charge of manslaughter. It
does not extend to findings that would serve to double the maximum sentence she
faced upon conviction.‖ (Id., at p. 931.)
       Assuming, without deciding, that Schofield, supra, 895 A.2d 927, and
Williams, supra, 104 P.3d 1151, correctly construed the effects of the defendants‘
jury waivers, both cases are distinguishable. Unlike the situation in Williams, here
defendant most certainly was aware of the possibility he would receive a death
sentence. Furthermore, both Schofield and Williams involved an intervening
change in the law. In those cases defendants lacked (or were reasonably believed
to lack, under the law prior to Blakely) a legal right to a jury trial for an
enhancement or statutory aggravating findings when they entered their respective
jury waivers. The Schofield and Williams courts thus declined to construe the
defendants‘ jury waivers as forgoing a right to a jury trial that had not been
recognized at the time the waivers were entered. 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 (see § 190.4, subd. (a)), his comprehensive waiver is properly understood
as subsuming that right. And in any event, as discussed post, the trial court‘s
colloquy with defendant further demonstrates that defendant entered a knowing
and intelligent waiver of a jury trial for the special circumstance allegation.
8      The dissenting justices direct their attacks on perceived deficiencies in the
judge‘s advisements to defendant, and fail to properly account for other facts that
                                                            (Footnote continued on next page.)


                                           23
        To review, after each defendant, through counsel, stated his desire to waive
jury trial, the trial judge explained to defendant that he had ―a right to a trial, either
by a jury . . . or a trial by a judge.‖ The judge described the trial as incorporating
two phases. In the first phase, the judge explained, the district attorney bore the
burden of introducing evidence sufficient to prove guilt beyond a reasonable
doubt, and ―[t]hen, and only then, would we get to a penalty phase.‖ The judge
also explained that in a court trial he alone ―would make the decision on whether
that evidence was sufficient to prove [defendant‘s] guilt beyond a reasonable
doubt,‖ and ―In the event [he] made such a finding,‖ the case would proceed to a
penalty phase, at which time it would ―fall upon [the judge] to make the decision
as to the appropriate punishment, which could result in a death penalty sentence.‖
The ultimate question posed to defendant was ―Do you give up your right to a jury
trial and agree that this Court, alone, will make those decisions . . . ?‖ After
defendant answered in the affirmative, the trial court observed that the waiver
applied to ―all issues‖ in the trial.
        Viewed together with all other relevant circumstances, this colloquy
demonstrates beyond any dispute that defendant‘s waiver incorporated a knowing


(Footnote continued from previous page.)

also connote a knowing and intelligent waiver. But ―[a] waiver colloquy is a
procedural device; it is not a constitutional end or a constitutional ‗right.‘ ‖
(Commonwealth v. Mallory (Pa. 2008) 941 A.2d 686, 697 (Mallory).) Thus, in
various contexts in which we have been called upon to ascertain whether a waiver
of constitutional rights was knowing and intelligent, we have not focused
myopically on the waiver colloquy in isolation, but instead have conducted a more
comprehensive assessment of the totality of the circumstances. (See, e.g., People
v. Mosby (2004) 33 Cal.4th 353, 361; Howard, supra, 1 Cal.4th at pp. 1175-1178.)
As we have discussed, here the relevant circumstances include not only the
colloquy, but also defendant‘s prior criminal history, other events before and after
the waiver was entered, and the fact that defendant was represented by counsel.



                                           24
and intelligent declination of a jury trial for the special circumstance allegation.
The trial court‘s advisement conveyed that defendant had a right to a jury trial
with regard to all issues as to which an adverse determination could expose him to
the death penalty — which included the special circumstance allegation — and
that with his waiver, defendant would be giving up that right. Defendant‘s
ensuing assent to a bench trial therefore manifested a knowing and intelligent
waiver of his jury trial right with regard to the special circumstance allegation.
       Our finding of a knowing and intelligent waiver of a jury trial for the
special circumstance allegation finds support in our decision in Diaz, supra,
3 Cal.4th 495. There, in taking the defendant‘s waiver of a jury trial, the trial
court informed the defendant, ― ‗[Y]ou‘ll be giving up that right to have the jury in
two different functions. First of all, first function is to decide the question of your
guilt or innocence. Then the second function, similarly, assuming there are 12 of
them and they would unanimously agree that you were guilty, then you would
have 12 jurors who must unanimously agree as to the punishment. [¶] They have
a choice, life without the possibility of parole or death. . . . And you‘ll be giving
up that right.‘ ‖ The defendant answered, ― ‗I‘m giving it up.‘ ‖ The court then
asked the defendant if he understood that his waiver applied to ― ‗both phases . . .
of the special circumstances case.‘ ‖ The defendant assented. (Id., at p. 564.)
The defendant also told the court that he had discussed the matter ― ‗quite
thoroughly‘ ‖ with his attorney. (Id., at p. 565.)
       Diaz, supra, 3 Cal.4th 495, rejected the defendant‘s argument that his
waiver was invalid, ruling instead that ―the trial court explained to defendant that
the waiver of his right to trial by jury applied to all aspects of his special
circumstances case, from beginning to end. . . . Although the trial court‘s
admonition was not a model of clarity, we believe it was sufficient to advise
defendant that his waiver, which included all aspects of guilt and penalty, included

                                           25
within it a waiver of the right to jury trial on the truth or falsity of the special
circumstance allegation.‖ (Id., at p. 565.) Diaz reached this conclusion even
though the trial court never explained to the defendant what a ―special
circumstance‖ was, and indeed, used the term ―special circumstance‖ only in
describing the type of case that was involved. The defendant in Diaz was never
told by the judge that this ―special circumstance‖ represented a specific allegation
as to which he had a distinct jury trial right. Yet the court in Diaz nevertheless
found a valid jury waiver concerning the special circumstance allegation. Given
similar facts, the same reasoning applies here. Although the court below never
used the phrase ―special circumstance‖ in its colloquy with defendant, its
advisement communicated to defendant that his waiver of a jury trial, if entered,
would encompass the determinations that could make him subject to the death
penalty as part of a described trial process. Defendant‘s resulting jury waiver was
therefore knowing and intelligent with regard to the special circumstance
allegation.
       The dissenting justices apparently read the trial judge‘s advisements
differently, perceiving the failure to expressly refer to the special circumstance
allegation as somehow implicitly excluding that allegation from a counseled and
otherwise comprehensive jury waiver. (See conc. & dis. opn. of Liu, J., post, at
pp. 5-10; conc. & dis. opn. of Cuéllar, J., post, at pp. 6-8.) We respectfully
disagree with this interpretation of the colloquy, for the reasons we have
previously given.9 The dissenting justices‘ position boils down to the proposition

9       The dissenting justices‘ misreading of the colloquy saturates the remainder
of their analysis, causing it to go astray in numerous respects.
        For example, the error informs Justice Cuéllar‘s inapt analogy of this matter
to two out-of-state decisions involving deficient penalty-phase waivers in capital
trials. (Conc. & dis. opn. of Cuéllar, J., post, at pp. 9-11.) In one of these
                                                             (Footnote continued on next page.)


                                            26
that the judge was constitutionally bound to utter the phrase ―special
circumstance‖ at some point in the waiver colloquy with defendant, even if the
judge never went on to explain what this phrase meant. But our waiver
jurisprudence rejects the notion that a knowing and intelligent waiver hinges on
the recitation of a ― ‗talismanic phrase.‘ ‖ (Howard, supra, 1 Cal.4th at p. 1180,
quoting U.S. v. Sherman (9th Cir. 1973) 474 F.2d 303, 306.) The fact of the
matter is that the dissenting justices, like defendant, would require a degree of
elaboration and specificity in a jury waiver colloquy that has never been demanded
for a jury waiver to be considered knowing and intelligent under constitutional
standards.

                  b. Statutory Issues with Jury Waiver / Memro Error
        Defendant‘s related attack on his jury waiver, as it pertains to the special
circumstance allegation, involves our decision in Memro.
        Memro, supra, 38 Cal.3d 658, reconciled the provisions of sections 190.1,
subdivision (a) and 190.4, subdivision (a). The former provides, in pertinent part, that
in the trial of a capital case, ―The question of the defendant‘s guilt shall be first
determined. If the trier of fact finds the defendant guilty of first degree murder, it
shall at the same time determine the truth of all special circumstances charged.‖
(§ 190.1, subd. (a).) This provision suggests that the same trier of fact will determine


(Footnote continued from previous page.)

decisions, the judge entered a jury waiver for both phases of a capital trial, even
though the record suggested that the defendant sought to waive a jury for the guilt
phase only. (People v. Brown (Ill. 1996) 661 N.E.2d 287, 297.) In the other,
Commonwealth v. O’Donnell (Pa. 1999) 740 A.2d 198, the defendant ―never
personally waived her right to have a jury determine the penalty.‖ (Id., at p. 211.)
The discussions of jury waivers in both Brown and O’Donnell must be read in
light of these distinguishing facts.



                                           27
guilt and the truth of any special circumstance allegations. The relevant text within
the latter provision states, however, that ―[i]f the defendant was convicted by the court
sitting without a jury, the trier of fact [on the special circumstance allegation(s)] shall
be a jury unless a jury is waived by the defendant and by the people, in which case the
trier of fact shall be the court.‖ (§ 190.4, subd. (a).) Memro construed these statutes
(as enacted by the Legislature in 1977, see Stats. 1977, ch. 316, §§ 7, 12, pp. 1257,
1261), read together, as requiring a ―separate, personal waiver‖ of the right to a jury
for a special circumstance allegation, above and beyond the standard guilt phase and
penalty phase waiver. (Memro, at p. 704.)
       We have since clarified that the ―separate waiver‖ required under Memro
does not require a second enunciated waiver by the defendant. In Diaz, this
court‘s first case applying Memro, we explained that under Memro, ―[t]he waiver
must be made by the defendant personally, and must be ‗separate‘ — that is, if the
defendant is to be deemed to have waived the right to jury trial on both guilt and
special circumstances, the record must show that the defendant is aware that the
waiver applies to each of these aspects of trial.‖ (Diaz, 3 Cal.4th at p. 565.)
Because the defendant in Diaz ―told the court that he had discussed the matter
‗quite thoroughly‘ with his counsel,‖ and the trial court‘s colloquy ―explained to
defendant that the waiver of his right to trial by jury applied to all aspects of his
special circumstances case, from beginning to end,‖ Diaz held that Memro was
satisfied. (Diaz, at p. 565.)
       The Memro rule was construed similarly in People v. Wrest (1992)
3 Cal.4th 1088 (Wrest). There, the defendant engaged in an on-the-record
colloquy with the prosecutor. In this colloquy, the prosecutor mentioned the terms
―special circumstances‖ or ―special allegations‖ several times, ultimately asking
the defendant, ― ‗In other words, you don‘t want a jury trial on the issue of guilt or
the special circumstances or the enhancements, right?‘ ‖ to which the defendant

                                          28
answered, ― ‗Yes.‘ ‖ (Id., at pp. 1103-1104, italics omitted.) Wrest found that the
record reflected an ―express and personal understanding and waiver of [the
defendant‘s] right to a jury trial on the special circumstance allegations,‖
observing that ―[t]he mere fact that the prosecutor‘s questions combined issues of
guilt, special circumstances, and enhancements did not vitiate the waiver.‖ (Id., at
p. 1104.) In finding no error under Memro, Wrest disapproved three Court of
Appeal decisions10 to the extent that they might have been read to require a
specific procedure for complying with Memro. (Wrest, at pp. 1104-1105.) Wrest
explained that Memro does not demand ―that a defendant‘s waiver of his jury-trial
right on special circumstance allegations be taken in accordance with a prescribed
ritual, e.g., a separate interrogation of defendant about his special circumstance
jury trial rights as distinct from his other jury trial rights. . . . [Memro] simply
requires that a valid waiver of the jury-trial right on a special circumstance
actually cover the special circumstance. It does not require such a waiver to be
taken in accordance with any particular procedure.‖ (Wrest, at p. 1105; see also
Weaver, supra, 53 Cal.4th at pp. 1074-1075; Scott, supra, 15 Cal.4th at p. 1208.)
       The Attorney General urges us to construe the waiver colloquy here as
sufficient under Memro. The Attorney General‘s argument finds some support in
our statement in Wrest, supra, 3 Cal.4th 1088, that Memro ―simply requires that a
valid waiver of the jury-trial right on a special circumstance actually cover the
special circumstance.‖ (Wrest, at p. 1105.) Arguably, our conclusion that the trial
court secured a constitutionally adequate waiver of a jury trial concerning the

10      Specifically, Wrest disapproved People v. Moreno (1991) 228 Cal.App.3d
564, 571-572, People v. Gastile (1988) 205 Cal.App.3d 1376, 1380-1381, and
People v. Sandoval (1987) 188 Cal.App.3d 1428, 1431. (Wrest, supra, 3 Cal.4th
at pp. 1104-1105.)




                                           29
special circumstance allegation could be equated with a determination that
defendant‘s waiver covered the charge, in the sense that it encompassed a knowing
and intelligent waiver of a jury trial for the allegation. We nevertheless conclude
the colloquy fell short of what the applicable statutes, as construed in Memro,
require. There was no specific reference in the waiver colloquy to the need to
adjudicate the special circumstance allegation; the term ―special circumstance‖
was never mentioned at all. Although such precision is not required for a
knowing, voluntary, and intelligent waiver, we believe that Memro‘s requirement
of a ―separate waiver,‖ even as that rule was subsequently clarified in Diaz and
Wrest, demands at least that much specificity. Although we recognize that the line
we draw is a narrow one, we hold that defendant‘s purported waiver as to the
special circumstance determination was deficient, as a matter of state law, under
Memro, supra, 38 Cal.3d 658.
       Having identified Memro error, we now consider whether this error is
amenable to harmless error review or instead requires automatic reversal.
       States are free to apply their own harmless error rules to errors of state law.
(Cooper v. California (1967) 386 U.S. 58, 62 [―when . . . state standards alone
have been violated, the State is free . . . to apply its own state harmless-error rule
to such errors of state law‖].) The California Constitution imposes upon this court
an obligation to conduct ―an examination of the entire cause‖ and reverse a
judgment below for error only upon determining that a ―miscarriage of justice‖ has
occurred. (Cal. Const., art. VI, § 13.) This provision informs the general rule in
this state that to obtain reversal of the judgment based on a violation of a state
statute, a defendant must demonstrate that it is ―reasonably probable that a result
more favorable to [the defendant] would have been reached in the absence of the
error.‖ (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)



                                          30
       Defendant argues that the Watson standard does not apply here, and that the
error below should instead be regarded as structural, or reversible per se. We
disagree. Categorization of an error as structural represents ―the exception and not
the rule.‖ (Rose v. Clark (1986) 478 U.S. 570, 578; see also People v. Marshall
(1996) 13 Cal.4th 799, 851 [―[t]here is a strong presumption any error‖ is
susceptible to harmless error analysis].) In determining whether a federal
constitutional error qualifies as structural, courts ―ask whether the error rendered
the trial ‗fundamentally unfair or an unreliable vehicle for determining guilt or
innocence‘ (Neder [v. United States (1999) 527 U.S. 1, 9]), or whether the effect
of the error is ‗necessarily unquantifiable and indeterminate‘ (Sullivan [v.
Louisiana (1993) 508 U.S. 275, 282]).‖ (People v. Aranda (2012) 55 Cal.4th 342,
366, italics omitted.) The fact that an error implicates important constitutional
rights does not necessarily make it structural. ―Many statutes . . . set out
procedures designed to protect constitutional principles. Broadly construed, many
of these procedural statutes may be said to protect due process and other
constitutional safeguards. Nevertheless, most procedural shortcomings constitute
trial error‖ and not structural error. (People v. Anzalone (2013) 56 Cal.4th 545,
555-556 (Anzalone).) The ―miscarriage of justice‖ language within article VI,
section 13 of the California Constitution likewise contemplates a limited class of
structural errors, consisting of ― ‗[t]he kinds of errors that, regardless of the
evidence, may result in a ―miscarriage of justice‖ because they operate to deny a
criminal defendant the constitutionally required ―orderly legal procedure‖ (or, in
other words, a fair trial) — for example, the denial of the defendant‘s right to a
jury trial or to an impartial trial judge [citation] — [and] all involve fundamental
―structural defects‖ in the judicial proceedings . . . .‘ ‖ (People v. Alexander
(2010) 49 Cal.4th 846, 896.)



                                           31
       The mistake that occurred here is not such an error. At the outset, we observe
that defendant has not directed our attention to any language in section 190.1,
subdivision (a), in section 190.4, subdivision (a), or in any legislative or ballot
materials relating to these statutes that indicate the Legislature (in enacting the 1977
versions of these statutes) or the electorate (in repealing and reenacting these statutes
as part of a 1978 initiative (Prop. 7, §§ 3-4, 9-10, as approved by voters, Gen. Elec.,
Nov. 7, 1978)) saw a structural error as occurring when a trial court, in taking a
knowing and intelligent waiver of the jury trial right, fails to explicitly reference the
special circumstance allegation as encompassed within the waiver, or otherwise
obtain a separate jury waiver for this allegation.11



11       Justice Cuéllar extracts a rule of per se reversal from language within
section 190.4, subdivision (a), providing that ―the trier of fact [for a special
circumstance allegation] shall be a jury unless a jury is waived by the defendant
and by the people, in which case the trier of fact shall be the court.‖ He asserts
that this phrasing connotes the Legislature‘s and electorate‘s intent that a deviation
from the specified procedure amounts to a structural error. (Conc. & dis. opn. of
Cuéllar, J., post, at pp. 20-21.)
         But this text, which closely resembles the statutory phrasing involved in
Berutko, supra, 71 Cal.2d at page 94, cannot reasonably be read in the manner
suggested by Justice Cuéllar. The language conveys that a criminal defendant has
a right to a jury trial regarding a special circumstance allegation; reading it
together with the language in section 190.1, subdivision (a), the court in Memro,
supra, 38 Cal.3d 658 also determined that it conveyed a right to a separate waiver.
(Id., at pp. 700-704.) It does not follow from the statutory language, however, that
a deviation from the procedure recognized in Memro constitutes a structural error,
and there is no indication whatsoever that the Legislature or electorate saw it as
such.
         Justice Cuéllar‘s opinion reaches its conclusion only by assuming that
defendant could not have knowingly and intelligently waived a jury trial as a
matter of constitutional law absent compliance with the specific separate waiver
that Memro determined was required as matter of statutory law. The opinion thus
improperly conflates state statutory procedures with constitutional standards, an
approach that, as we shall discuss post, has been consistently rejected.



                                          32
       Nor does the analysis in Memro itself support treating the error here as
structural. Memro determined that another error required reversal and a remand of the
matter for additional proceedings. (Memro, supra, 38 Cal.3d at p. 704.) For this
reason, Memro did not need to and did not determine the consequences of a judge‘s
failure to elicit a sufficiently specific jury waiver for the trial of a special
circumstance allegation. (Id., at pp. 704-705.) Yet Memro never suggested that a
failure to obtain such a waiver would fall into the rare class of mistakes that are
reversible per se. And indeed, every Court of Appeal that has detected the type of
error described in Memro has applied a form of harmless error analysis to the mistake,
rather than finding it reversible per se. (People v. Moreno, supra, 228 Cal.App.3d at
p. 579; People v. Gastile, supra, 205 Cal.App.3d at pp. 1383-1384; People v. Granger
(1980) 105 Cal.App.3d 422, 428-429.)
       The type of Memro error involved here is, in fact, quite different from those
mistakes that are regarded as structural. This error did ―not necessarily render
[defendant‘s] criminal trial fundamentally unfair or an unreliable vehicle for
determining guilt or innocence.‖ (Neder v. United States, supra, 527 U.S. at p. 9.)
Nor are the effects of this lapse ―necessarily unquantifiable and indeterminate.‖
(Sullivan v. Louisiana, supra, 508 U.S. at p. 282.) On the contrary, we are more than
capable of scrutinizing the record to ascertain whether it reveals a reasonable
probability that defendant would have demanded a jury trial for the special
circumstance allegation, had no Memro error occurred.
       Defendant characterizes such an inquiry as unduly speculative. But we have
conducted comparable evaluations of the record in other contexts, assessing whether a
defendant would have made a different decision absent an error in advisement. For
example, we have structured examinations of prejudice around whether a criminal
defendant still would have entered a guilty or no contest plea had the judge provided
an adequate advisement regarding the plea‘s immigration consequences (People v.

                                            33
Martinez (2013) 57 Cal.4th 555, 559 (Martinez); People v. Superior Court (Zamudio)
(2000) 23 Cal.4th 183, 192 (Zamudio)); whether a defendant would have accepted a
plea bargain offered by the prosecution had his or her attorney provided effective
assistance of counsel (In re Alvernaz (1992) 2 Cal.4th 924, 937); and whether an
unrepresented defendant would have invoked the right to counsel had he or she been
readvised of this right upon arraignment after the preliminary examination, as is
required under section 987, subdivision (a) (People v. Crayton (2002) 28 Cal.4th 346,
365 (Crayton)).
       Martinez, supra, 57 Cal.4th 555, is instructive concerning the nature of this
type of review. Previously, we had determined in Zamudio, supra, 23 Cal.4th 183,
that where a trial court fails to supply the advisement required under section 1016.5
regarding the immigration consequences of a guilty or no contest plea and the
defendant shows that his or her conviction may result in adverse immigration
consequences, the court, on the defendant‘s motion, must vacate the judgment and
allow the defendant to withdraw the plea — provided, however, the defendant also
could show prejudice by establishing that ―it was reasonably probable he or she would
not have pleaded guilty if properly advised.‖ (Martinez, at p. 559, citing Zamudio, at
p. 210.) Martinez considered ―whether a court ruling on a motion to vacate pursuant
to section 1016.5 may deny relief, for lack of prejudice, if it concludes the defendant
would not have obtained a more favorable outcome had he or she chosen not to plead
guilty or nolo contendere.‖ (Martinez, at p. 559.) It determined that ―because the
question is what the defendant would have done, relief should be granted if the court,
after considering evidence offered by the parties relevant to that question, determines
the defendant would have chosen not to plead guilty or nolo contendere, even if the
court also finds it not reasonably probable the defendant would thereby have obtained
a more favorable outcome.‖ (Ibid.)



                                         34
       This approach recognizes that a defendant may accept or reject a plea for what
might objectively appear to be unreasonable motives, which must be respected as
reflections of the defendant‘s autonomy. Nevertheless, as befits an error under state
statutory law alone, review occurs under the ―reasonably probable‖ standard of
Watson, supra, 46 Cal.2d at page 836, and the defendant bears the burden of showing
that he or she would have acted differently had the error not occurred. (Martinez,
supra, 57 Cal.4th at p. 562.) This assignment of the burden can be important, as it
was in People v. McClellan (1993) 6 Cal.4th 367. McClellan considered a trial
court‘s failure to advise the defendant that his guilty plea would make him subject to
registration as a sex offender under section 290. (McClellan, at p. 372.) On appeal,
the defendant in McClellan argued that the error automatically entitled him to
withdraw from the plea agreement. (Id., at p. 374.) Although this court agreed with
the defendant that an error occurred under state law (id., at p. 376), it disagreed
regarding the resulting remedy. McClellan concluded that the defendant bore the
burden of showing he would have made a different decision with a proper advisement,
and determined that he had not met that burden: ―Although defendant alleges that had
he been properly advised, he would not have entered his plea of guilty, there is
nothing in the record on appeal to support this contention. Thus, we conclude
defendant has failed to meet his burden of establishing prejudice.‖ (Id., at p. 378.)
       Our decisions in cases such as Martinez and McClellan manifest the viability
of the form of harmless error analysis that applies here. Similarly pertinent is People
v. Sanchez (1995) 12 Cal.4th 1,12 where this court evaluated whether a defendant was
prejudiced by an error in advisement by considering whether the defendant still would


12    People v. Sanchez, supra, 12 Cal.4th 1, was disapproved on another ground
in People v. Doolin (2009) 45 Cal.4th 390, 421, footnote 22.




                                          35
have waived a jury trial absent the mistake. The defendant in Sanchez received a
death sentence after he waived a jury trial for the guilt phase of a capital case, opting
instead for the court to decide guilt on the basis of preliminary hearing transcripts.
(Id., at pp. 17, 23-27.) On appeal, the defendant argued that the trial court committed
prejudicial error because in taking the defendant‘s waiver of a jury trial for the guilt
phase, it failed to comply with a state law requirement that the defendant be advised
of the potential maximum and minimum terms of imprisonment. (Id., at p. 30; see
People v. Dakin (1988) 200 Cal.App.3d 1026, 1033.) Applying the Watson
―reasonably probable‖ standard of review to this omission, Sanchez found insufficient
indicia of prejudice. (Sanchez, at p. 30.) The defendant knew that he faced a possible
death sentence if convicted, it was noted. (Ibid.) Furthermore, Sanchez observed, ―It
is clear from the record that defendant would have waived his right to a jury trial and
insisted on the submission of the guilt phase on the preliminary hearing transcripts
even if he was specifically told by the court that he faced a possible death sentence.‖
(Id., at p. 31.)
        Other courts also consider themselves capable of ascertaining whether a
defendant would have chosen a jury trial over a bench trial if there had not been an
error by the judge or counsel in connection with the jury waiver. In U.S. v. Williams
(7th Cir. 2009) 559 F.3d 607, for example, faced with a jury waiver that did not
comply with the requirements of rule 23(a) of the Federal Rules of Criminal
Procedure (18 U.S.C.) the court declined to characterize the error as structural. It
instead ascertained that ―for purposes of determining whether the waiver was, in fact,
invalid, one can determine whether the defendant adequately understood his right to a
jury; moreover, if the defendant lacked such an understanding, one can assess the
likelihood that he would have stood on his right to a jury had he been properly
admonished of his right.‖ (U.S. v. Williams, at p. 614.) Later, the court in U.S. v.
Williams reiterated that, having failed to raise a timely objection to the allegedly

                                          36
inadequate waiver procedure, the defendant ―must show that he did not have a
concrete understanding of his right to a jury and that it is reasonably probable that he
would not have waived a jury had he had such an understanding.‖ (Id., at p. 616.)
       A similar inquiry has also been endorsed for ascertaining whether a defendant
suffered prejudice due to ineffective assistance of counsel in connection with a jury
waiver. In State v. Keller (Iowa 2009) 760 N.W.2d 451, for example, the defendant‘s
written jury waiver did not discuss any of the specific elements of the jury trial right,
and there was no record of any waiver colloquy between the trial court and the
defendant. (Id., at p. 452.) The defendant in Keller pressed an ineffective assistance
of counsel claim, asserting that her counsel provided constitutionally inadequate
assistance by not ensuring a knowing and adequate waiver. (Ibid.) In describing the
defendant‘s burden of showing prejudice, the Keller court explained that she ―must
prove by a preponderance of the evidence that, but for counsel‘s failure to assure
compliance with the rule, she would not have waived her right to a jury trial.‖ (Id., at
p. 453.) In Illinois, prejudice from the deficient performance of counsel in connection
with a jury waiver is assessed by reference to ―whether there exists a reasonable
likelihood that the defendant would not have waived his jury right in the absence of
the alleged error.‖ (People v. Maxwell (Ill. 1992) 592 N.E.2d 960, 973.) And in
Mallory, supra, 941 A.2d 686, the Pennsylvania Supreme Court rejected the
petitioner‘s argument that counsel‘s alleged ineffective assistance in connection with
a jury waiver amounted to structural error. Mallory concluded instead that ―to prove
trial counsel ineffective . . . . appellant must show that his understanding of the
written [jury] waiver was constitutionally impaired by his lawyer‘s deficient
performance, as well as proof that he would have elected a jury but for his lawyer‘s
performance.‖ (Id., at p. 702; see also Taylor v. Horn (3d Cir. 2007) 504 F.3d 416,
450 [observing that a habeas corpus petitioner had not shown that he was prejudiced



                                          37
by the denial of his jury trial right because he ―never asserted that he would have
elected [a jury], had he known of the option‖].)13
       The purpose of this discussion of relevant authority is not to suggest that all of
these cases are factually on all fours with the present matter. It merely establishes
that, contrary to defendant‘s position that such an inquiry is hopelessly speculative, in
appropriate circumstances courts can indeed ascertain whether or not a particular
defendant would have chosen a jury trial instead of a bench trial had an error in
advisement not occurred.
       Of course, there are limits to the ability of courts to undertake this form of
analysis. These limits are suggested by our decision in Collins, supra, 26 Cal.4th 297.
There, in taking the defendant‘s jury waiver, the judge advised him that he would
receive ―some benefit‖ by forgoing a jury trial. (Id., at p. 302.) Collins regarded this
inducement as violating the defendant‘s federal constitutional rights, because it meant
that his ensuing waiver of a jury trial could not be understood as voluntary. (Id., at
pp. 309, 311.) This error, Collins determined, was structural, in the same manner as
the outright refusal to provide any jury trial would be. (Id., at p. 312.)


13     In another case decided the same year as Mallory, the Pennsylvania
Supreme Court applied a similar mode of analysis in addressing a jury waiver
issue presented on direct appeal. In Commonwealth v. Houck (Pa. 2008) 948 A.2d
780, the defendant claimed to have been misled by the trial court‘s misadvisement
regarding the range of sentences that could adhere upon conviction. (Id., at
pp. 785-786.) The court was ―persuaded that the voluntariness of a jury waiver
can be undermined where the defendant is informed of a range of potential
sentences at a jury waiver colloquy that is less than the sentence eventually
imposed.‖ (Id., at p. 788.) The court also determined, however, ―that if a
defendant seeks to invalidate an otherwise valid jury waiver based on a trial
court‘s recitation of his or her potential sentence, the defendant should be required
to demonstrate that his or her understanding of the length of the potential sentence
was a material factor in making the decision to waive a jury trial.‖ (Ibid.)




                                          38
       The situation here is different from that before the Collins court in two
important respects. First, the statutory error that arises under state law when a trial
court fails to meet Memro‘s prophylactic requirement does not necessarily warrant the
same treatment that a constitutional error would receive. Our precedent, and that of
other jurisdictions, has recognized a difference between a failure to comply with a
statutory requirement that may serve to protect a constitutional right, and a violation
of the underlying constitutional right itself. In Anzalone, supra, 56 Cal.4th at
page 555, for example, we explained that the statutory requirement that a court or
clerk ask a jury whether it has agreed upon a verdict in a criminal case (§ 1149) is
―designed to protect the right to a unanimous verdict,‖ a ―core constitutional right.‖
We nevertheless held that a failure to comply with this statute was subject to harmless
error analysis under the standard specified in Watson, supra, 46 Cal.2d at page 836.
(Anzalone, at pp. 555, 560.) Likewise, in Crayton, supra, 28 Cal.4th at page 364, we
identified the requirement that an unrepresented defendant be readvised of his or her
right to counsel upon being arraigned on an information after a preliminary
examination (§ 987, subd. (a)) as a ―prophylactic safeguard‖ that protects the right to
counsel. Yet we determined that a failure to readvise a defendant amounted to
statutory error, not federal constitutional error, and reviewed the error for prejudice
under the Watson standard. (Crayton, at pp. 365-366; see also People v. Vera (1997)
15 Cal.4th 269, 276, 278 [distinguishing between the forfeiture rules applicable to
constitutional rights and those applicable to statutory rights].)14

14      Other jurisdictions recognize a similar distinction. Within the specific
context of jury waivers, an abundant body of precedent distinguishes between a
failure to comply with statutory rules, or other rules of procedure with the force of
law, that prescribe how a jury waiver is to be taken; and a failure to obtain a
knowing, intelligent, and voluntary jury waiver. (See, e.g., U.S. v. Leja (1st Cir.
2006) 448 F.3d 86, 93 [concluding that a jury waiver that does not comply with
Federal Rule of Criminal Procedure 23(a) (18 U.S.C.) may nevertheless be valid];
                                                           (Footnote continued on next page.)


                                          39
        Second, even granting the existence of Memro error, defendant nonetheless
personally entered a constitutionally adequate jury waiver, applicable to all phases of
his trial.15 The presence of a personal jury waiver that met basic constitutional
standards, if not the heightened requirements recognized as a matter of statutory
construction in Memro, minimizes any speculation that would otherwise be associated
with ascertaining whether defendant would have chosen a jury trial for the special
circumstance allegation, but for the Memro error. The presence of a knowing,
intelligent, and voluntary personal waiver of a jury trial by defendant distinguishes
the facts of this case from those involved in People v. Blackburn (2015) 61 Cal.4th
1113 (Blackburn) and People v. Tran (2015) 61 Cal.4th 1160, in which errors of state
law were treated as structural. In Blackburn, this court classified as reversible per se a
failure to obtain any personal jury waiver at all from a defendant in a civil
commitment proceeding. (Id., at pp. 1133-1134.) Tran similarly cast as structural
error the absence of a personal jury waiver from a defendant prior to proceedings to
extend his involuntary commitment after pleading not guilty by reason of insanity to a


(Footnote continued from previous page.)

U.S. v. Robertson, supra, 45 F.3d at p. 1431 [same]; State v. Feregrino (Iowa
2008) 756 N.W.2d 700, 707-708 [ruling that a failure to comply with a state rule
of criminal procedure providing that a jury waiver must be in writing and on the
record, does not, by itself, constitute structural error]; State v. Redden, supra, 487
S.E.2d at p. 327 [determining that a failure to comply with a state law requirement
of a written jury waiver does not, by itself, invalidate a defendant‘s jury waiver];
People v. Mosly (Mich.Ct.App. 2003) 672 N.W.2d 897, 901 [concluding that a
failure to comply with Michigan statutory law in connection with a jury waiver
does not require reversal if the ―defendant nonetheless understood that he had a
right to a trial by jury and voluntarily chose to waive that right‖].)

15    As we discuss post, defendant entered a knowing and intelligent jury
waiver as to the penalty phase, as he did for all other components of his trial.




                                           40
criminal offense. (Tran, at p. 1163.) In those decisions, this court‘s view of the
absence of a personal jury waiver in commitment proceedings as a structural error
found support in prior decisions treating a comparable absence of a personal jury
waiver in a criminal proceeding as a structural defect. (People v. Ernst, supra,
8 Cal.4th at pp. 444-449; Holmes, supra, 54 Cal.2d at pp. 443-444; see Cal. Const.,
art. I, § 16.)
        Here, in contrast, defendant personally entered a jury waiver, meaning that we
are not left to ―speculate about whether [defendant] would have chosen a jury trial if
he . . . had been in a position to make a personal choice.‖ (Blackburn, supra, 61
Cal.4th at p. 1134.) Under somewhat analogous circumstances, Blackburn itself
contemplated the application of harmless error analysis. The Blackburn majority
observed that ―a trial court‘s failure to properly advise [a] . . . defendant of the right to
a jury trial does not by itself warrant automatic reversal. Instead, a trial court‘s
acceptance of a defendant‘s personal waiver without an express advisement may be
deemed harmless if the record affirmatively shows, based on the totality of the
circumstances, that the defendant‘s waiver was knowing and voluntary.‖ (Id., at
p. 1136.)
        The distinctive facts involved here also render inapposite decisions from other
jurisdictions that defendant cites for the proposition that a failure to obtain a valid jury
waiver requires automatic reversal. In Fortune v. U.S. (D.C. 2009) 59 A.3d 949, 955
(Fortune) the trial court failed to take any waiver of a jury trial from the defendant
before proceeding to a bench trial of a charged crime — an error of constitutional
dimensions.16 Other cases that defendant relies upon, meanwhile, either did not


16     The dissenting justices regard Fortune, supra, 59 A.3d 949, as being on
point. (Conc. & dis. opn. of Liu, J., post, at pp. 15-16; conc. & dis. opn. of
Cuéllar, J., post, at p. 15.) This position, however, follows from their incorrect
                                                            (Footnote continued on next page.)


                                           41
involve a personal jury waiver by the defendant (e.g., State v. Hauk (Wis.Ct.App.
2002) 652 N.W.2d 393, 403-404) or addressed a perceived failure to secure a
knowing and intelligent waiver of the right to a jury trial (e.g., Duarte-Higareda,
supra, 113 F.3d at p. 1003) — errors that, as we have explained, differ from the one
involved here in their magnitude and their susceptibility to harmless error analysis.
        Nor does State v. Little (Minn. 2014) 851 N.W.2d 878 (Little) support
defendant‘s position that the mistake here defies harmless error analysis. In Little, the
prosecution added a new charge after defendant entered a jury waiver. (Id., at p. 881.)
The Little court concluded that the earlier waiver did not necessarily encompass the
later-added charge. (Id., at p. 883.)17 The court nevertheless conducted harmless
error review and found the error prejudicial. (Id., at p. 886.) In finding prejudice, the


(Footnote continued from previous page.)

assertion that there was no knowing and intelligent jury waiver with regard to the
special circumstance allegation in this case. There was such a waiver, and we
perceive a significant difference between a failure to obtain any jury waiver at all,
and a jury waiver that, although knowing and intelligent, does not satisfy the
heightened standards described in Memro. Furthermore, Fortune cannot
reasonably be read as taking the position that violation of a statutory procedure
associated with the taking of a waiver is necessarily structural error — a position
that, as discussed, this court has repeatedly rejected in any event. (See, e.g.,
Anzalone, supra, 56 Cal.4th at pp. 555-556; Crayton, supra, 28 Cal.4th at pp. 364-
366.) The fact that the Fortune court appears to have considered a specific and
grave error‘s inconsistency with a local statute as one of several factors relevant to
a determination that the mistake was structural in nature (Fortune, at pp. 956-957)
does not, logically, support the conclusion that any violation of any statutory
procedure that protects a substantive right is necessarily structural error.

17      In reaching this conclusion, the court in Little, supra, 851 N.W.2d 878,
observed that entering a jury waiver, ― ‗[a]ll that [a] defendant waive[s] [is] a jury
trial of the issues then formed, and not of any and all other issues that might
possibly be thereafter formed under amended pleadings, and which he could not
anticipate.‘ ‖ (Id., at p. 883.) This principle is not pertinent to this case.




                                           42
court emphasized that although the conduct underlying the new charge was the same
as that involved with previously charged crimes for which defendant had entered a
jury waiver, ―the elements to be proved and the penalties are dramatically different.‖
(Id., at pp. 885-886.) Thus, whereas Little involved no waiver with regard to an added
charge that significantly upped the ante of the defendant‘s trial, here defendant
entered a constitutionally adequate jury waiver applicable to all phases of his trial.
The cases therefore diverge in both the magnitude of the errors involved, and the
ability of a reviewing court to evaluate what a defendant would likely have done in
the absence of the error. Even so, Little applied harmless error analysis to the error
before it. The fact that Little identified the error as prejudicial due to uncertainty
about that defendant‘s choice between a jury trial and a bench trial does not support
the wholesale rejection of harmless error analysis in this context.
       Similarly distinguishable is Miller v. Dormire (8th Cir. 2002) 310 F.3d 600, a
federal habeas corpus case, in which a jury waiver was entered by the petitioner‘s
counsel. (Id., at pp. 601-602.) The petitioner testified at an evidentiary hearing that
his attorney never explained the right to a jury trial to him, and ―that he would have
insisted upon a jury trial had he known he had the right to make such a decision.‖
(Id., at p. 602.) The prosecution argued that the petitioner could not show prejudice
because he could not establish that a jury would have reached a verdict different from
the one that resulted from the petitioner‘s bench trial. (Id., at p. 604.) The court
determined that the attorney‘s complete failure to counsel his client regarding a jury
trial constituted ineffective assistance under the Sixth Amendment to the United
States Constitution, and ―presumed‖ that prejudice resulted from this ―structural‖
error. (Miller, at p. 604.) Thus, Miller also involved constitutional error, not statutory
error under state law, the petitioner had made a showing of prejudice, and the court‘s
characterization of the error before it as structural connoted its rejection of a form of
harmless error analysis that we do not endorse here. Significantly, after Miller was

                                          43
decided, that same federal appellate circuit rejected another federal habeas corpus
petitioner‘s claim of ineffective assistance of counsel in connection with a jury waiver
on the ground that the petitioner had ―not established that he would have insisted on a
jury trial in any event.‖ (Nelson v. Hvass (8th Cir. 2004) 392 F.3d 320, 324.)
       We therefore conclude that at least where, as here, a defendant has personally
entered a knowing, intelligent, and voluntary jury waiver as to all aspects of his or her
trial, Memro error admits of harmless error analysis. This assessment entails a review
of the record to ascertain whether it reveals a reasonable probability that defendant
would have opted for a jury trial of the special circumstance allegation, had no Memro
error occurred. In undertaking this inquiry, we consider ―what the defendant would
have done‖ (Martinez, supra, 57 Cal.4th at p. 558, italics omitted), not what we
believe he should have done (id., at p. 562, italics omitted). As we explain, on this
record we conclude that defendant has not shown that there is a reasonable probability
that, had the trial judge expressly referenced the special circumstance allegation in the
waiver colloquy or otherwise sought a separate waiver regarding the allegation,
defendant would have refused to enter such a waiver, and instead would have sought a
jury trial for this aspect of his case. (See Watson, supra, 46 Cal.2d at p. 836.)
       Defendant personally entered what we have determined to be a knowing and
intelligent jury trial waiver, and did so with the assistance of counsel. The record
reveals no hesitation by defendant in entering the waiver, nor uncertainty or confusion
about its scope or consequences, even when the trial judge advised him that it applied
―to all issues‖ in the case. Nor does the record reflect any concern or objection by
defendant when the attorneys offered argument to the court concerning the
relationship of the evidence adduced at trial to the special circumstance allegation —
first in connection with section 1118 motions, and again in the parties‘ closing
statements — or when the court found the special circumstance allegation to be true.
Finally, to the degree such evidence is useful in ascertaining what defendant would

                                          44
have done (see Martinez, supra, 57 Cal.4th at p. 564), we perceive nothing in the
nature of the allegations or the proof at trial that suggests a basis for seeking a
decision maker for the special circumstance allegation different from the one who
would decide the charged crimes and penalty. The proof of the special circumstance
allegation was overwhelming, and overlapped with the evidence establishing
defendant‘s guilt of felony murder.
       In conclusion, because the record before this court on appeal provides no
basis for concluding that defendant would have chosen a jury trial for the special
circumstance allegation had the trial judge avoided Memro error, we find the error
harmless under the Watson standard.

       B. Penalty Phase Issues

           1. Penalty Phase Jury Waiver Issues
       Defendant also asserts that his waiver of a jury trial for the penalty phase
was invalid or incomplete. His argument is twofold. First, he renews his
argument concerning the absence of a knowing and intelligent jury waiver,
stressing that the trial judge failed to adequately apprise him of essential features
of the penalty phase. Additionally, relying on People v. Hovarter (2008) 44
Cal.4th 983 (Hovarter), defendant argues that the court was required to reaffirm at
the outset of the penalty phase any jury waiver entered prior to trial. These
arguments lack merit.

                a. Adequacy of the Jury Waiver for the Penalty Phase Under the
                    Federal and State Constitutions
       Defendant‘s argument that he did not enter a knowing and intelligent
waiver as to the penalty phase is not well taken.
       As previously related, the trial court‘s advisement explained to defendant
that he had a right to a trial by jury, and discussed two ―decisions‖ that would be
made by the court if this right were waived. First, the court would make ―the

                                          45
decision on whether [the] evidence was sufficient to prove . . . guilt beyond a
reasonable doubt.‖ The court further explained that in the event it made such a
finding, the case ―would then proceed to a penalty phase‖ in which the district
attorney would present aggravation evidence, defendant would have a right to
present mitigation evidence, and it would fall on the court to make ―the decision as
to the appropriate punishment, which could result in a death penalty sentence.‖
After this explanation, the court asked defendant, ―Do you give up your right to a
jury trial and agree that this Court, alone, will make those decisions . . . ?‖ (Italics
added.) Defendant assented.
       With the trial court‘s phrasing leaving no question that defendant‘s right to
a jury trial extended to any penalty phase — at which time the court, if a jury was
waived, would make the second ―decision‖ — defendant principally critiques the
colloquy on the ground that the trial court did not tell defendant prior to taking his
jury waiver that a death sentence could only result from a unanimous jury verdict.
(See § 190.4, subd. (b).)
       Under the totality of the circumstances presented here, we do not believe
that this omission, or any other attribute of the colloquy, directs a conclusion that
defendant did not enter a knowing and intelligent waiver of a jury for the penalty
phase. The better practice may be for a trial judge to provide such an advisement
before taking a jury waiver. Yet a failure to do so does not rise to the level of a
constitutional violation where, as in this case, the other circumstances surrounding
a jury waiver adequately establish that it was knowing and intelligent.18 Even

18     As Justice Liu observes in the dissenting portion of his opinion (conc. &
dis. opn. of Liu, J., post, at pp. 19-20), some courts have held that, as a
prerequisite to taking a knowing and intelligent waiver of a jury trial in a capital
case, a trial court must advise the defendant of juror unanimity rules pertinent to
sentencing. (E.g., State v. Martinez (N.M. 2002) 43 P.3d 1042, 1048-1049.)
                                                           (Footnote continued on next page.)


                                           46
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 advised of
other elements of a jury trial and he was represented by counsel in connection with
the jury waiver. These and other attendant circumstances suffice to defeat
defendant‘s claim of constitutional error. (See Weaver, supra, 53 Cal.4th at pp.
1072-1074; Robertson, 48 Cal.3d at pp. 36-38 [rejecting a defendant‘s argument
that the trial court‘s failure to advise him of the consequences of a jury deadlock at
the penalty phase rendered his jury waiver invalid, and observing that ―[a]bsent an
assertion or evidence to the contrary, we presume that competent counsel would
have informed defendant of the effect of a jury deadlock‖]; Sowell v. Bradshaw
(6th Cir. 2004) 372 F.3d 821, 834-836 [finding a constitutionally effective jury
waiver notwithstanding a failure to advise the defendant that a jury‘s decision to
recommend the death penalty had to be unanimous]; State v. Foust (Ohio 2006)
823 N.E.2d 836, 851-852 [finding a knowing and intelligent jury waiver in a




(Footnote continued from previous page.)

Other courts have rejected the argument that such an advisement is required as a
matter of constitutional law, however. (E.g., People v. Whitehead (Ill. 1987) 508
N.E.2d 687, 697; State v. Bays (Ohio 1999) 716 N.E.2d 1126, 1135.) We consider
the latter approach more consistent with the touchstone principles that whether a
waiver is knowing and intelligent is to be ascertained by reference to the totality of
the relevant circumstances, and that ―the 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
[discussing a waiver of rights attendant to the entry of a guilty plea].)




                                           47
capital case even though the defendant was not advised that a jury‘s vote for a
death sentence must be unanimous].)19

                b. Failure to Reaffirm Defendant’s Jury Waiver
       Defendant‘s other challenge to his jury waiver as it relates to the penalty
phase faults the trial judge for failing to reaffirm the waiver at the outset of this
phase. Defendant gleans the need for such a reaffirmation from our decision in
Hovarter.
       In Hovarter, supra, 44 Cal.4th 983, the first trial of a capital case resulted
in a mistrial at the penalty phase when the jury was unable to reach a verdict.
Upon retrial, the defendant waived his right to a jury, and the trial court returned a
verdict of death. (Id., at p. 989.) On appeal, the defendant argued that permitting
him to waive a jury for the penalty phase retrial violated section 190.4, subdivision
(b) as well as his constitutional rights. (Hovarter, at p. 1024.) Section 190.4,
subdivision (b), provides, ―If defendant was convicted by the court sitting without
a jury[,] the trier of fact at the penalty hearing shall be a jury unless a jury is
waived by the defendant and the people, in which case the trier of fact shall be the
court. If the defendant was convicted by a plea of guilty, the trier of fact shall be a
jury unless a jury is waived by the defendant and the people. [¶] If the trier of fact
is a jury and has been unable to reach a unanimous verdict as to what the penalty
shall be, the court shall dismiss the jury and shall order a new jury impaneled to
try the issue as to what the penalty shall be. If such new jury is unable to reach a
unanimous verdict as to what the penalty shall be, the court in its discretion shall


19     Justice Liu also asserts that the colloquy misadvised defendant that he
could not seek a bench trial for the guilt phase of trial, but a jury trial for the
penalty phase of trial. (Conc. & dis. opn. of Liu, J., post, at pp. 22-23.) We do not
believe that the colloquy is reasonably susceptible to this interpretation.



                                           48
either order a new jury or impose a punishment of confinement in state prison for
a term of life without the possibility of parole.‖
       The defendant in Hovarter read the first sentence of the second paragraph
of section 190.4, subdivision (b) as imposing upon the court a mandatory duty to
empanel a new jury for a penalty phase retrial. (Hovarter, supra, 44 Cal.4th at
p. 1025.) We disagreed with this interpretation, determining that ―[b]ecause the
default position in criminal cases is a trial by jury, with a jury trial waiver the
exception, the first paragraph of section 190.4, subdivision (b) must be read to
mean that, despite the fact an accused waived his right to a jury for the guilt phase,
the trial court must presume the defendant wants a jury to try the penalty phase
unless a jury is again waived. In other words, as an added protection for criminal
defendants, a single jury trial waiver given early in the trial process is insufficient;
a defendant must reaffirm his waiver for the penalty phase. This view of section
190.4, subdivision (b) explains why the first paragraph includes an explicit
mention of waiver. [¶] The meaning of the second paragraph dovetails with the
first: If a jury was not waived for the penalty phase of trial, it shall be presumed
the defendant also desires a jury for any retrial of that phase. This presumption,
however, can — as in all situations in which the jury trial right attaches — be
overcome with a knowing and intelligent waiver, personally given in open court.‖
(Id., at pp. 1026-1027.)
       Defendant construes our analysis in Hovarter, supra, 44 Cal.4th 983, as
announcing a rule that the trial court must reaffirm the defendant‘s jury trial
waiver at the outset of the penalty phase of all capital trials, regardless of whether
an initial jury waiver entered prior to the guilt phase incorporated an adequate
waiver of the jury trial right for the penalty phase. This view misreads Hovarter.
There, our discussion of the inadequacy of ―a single jury waiver given early in the
trial process‖ presupposed a jury waiver as to the guilt phase only. (Id., at

                                           49
pp. 1026-1027.) When a pretrial jury waiver encompasses the penalty phase of a
trial, as the waiver here did, there is no need for reaffirmation of the waiver as
extending to the penalty phase before that later stage of trial proceedings.
       The more relevant precedent here is Diaz, supra, 3 Cal.4th 495, which held
that a pretrial waiver of the right to a jury trial sufficed to waive a jury trial on a
special circumstance allegation and penalty determination where ―the trial court
explained to defendant that the waiver of his right to trial by jury applied to all
aspects of [the defendant‘s] special circumstances case, from beginning to end.‖
(Id., at p. 565; see id., at pp. 570-571.) Similarly, here the trial judge expressly
distinguished between the guilt and penalty phases of a capital trial in his
advisement prior to taking defendant‘s jury waiver, and asked defendant whether
he agreed to waive his ―right to a jury trial and agree that this Court, alone, will
make those decisions.‖ (Italics added.) The trial court‘s advisement was
sufficient to make defendant ―aware that the waiver applie[d] to each of these
aspects of trial.‖ (Id., at p. 565.) No reaffirmation of the waiver before the start of
the penalty phase was required in Diaz; nor was it here.

            2. Consideration of Aggravating Evidence
       Defendant contends the trial court erroneously considered three types of
aggravating evidence at the penalty phase. He asserts these errors violated his
rights under state law as well as the Eighth and Fourteenth Amendments to the
federal Constitution, and that, considered individually or cumulatively, they
require reversal.

                a. Prior Criminal Activity Involving Use of Force
       At the penalty phase, the prosecution may present evidence showing ―[t]he
presence . . . of criminal activity by the defendant which involved the use or
attempted use of force or violence or the express or implied threat to use force or



                                           50
violence.‖ (§ 190.3, factor (b).) ―The prosecution bears the burden of proving the
factor (b) other crimes beyond a reasonable doubt.‖ (People v. Moore (2011) 51
Cal.4th 1104, 1135.) As relevant here, the term ―criminal activity‖ does not
require that defendant was actually convicted. ―However, no evidence shall be
admitted regarding other criminal activity by the defendant which did not involve
the use or attempted use of force or violence or which did not involve the express
or implied threat to use force or violence.‖ (§ 190.3.) Moreover, ―the term
‗criminal activity‘ includes only conduct that violates a penal statute.‖ (People v.
Kipp (2001) 26 Cal.4th 1100, 1133.) Yet ―the proper admission of evidence under
factor (b) is not based on the abstract, definitional nature of the offense, but on the
conduct it involves.‖ (People v. Delgado (2016) 2 Cal.5th 544, 583; see also
People v. Thomas (2011) 52 Cal.4th 336, 363.)
       ―The question whether the acts occurred is . . . a factual matter . . . but the
characterization of those acts as involving an express or implied use of force or
violence, or the threat thereof, would be a legal matter properly decided by the
court.‖ (People v. Nakahara (2003) 30 Cal.4th 705, 720; see also People v.
Delgado, supra, 2 Cal.5th at pp. 588-590.) Similarly, ―whether the prosecution‘s
proposed evidence in aggravation was an actual crime‖ is a legal question.
(People v. Taylor (2010) 48 Cal.4th 574, 656.)

                    i. Possession of Metal Object
       First, defendant argues that the trial court erroneously considered evidence
that he possessed a metal object while in jail. The prosecution contended that the
item was a ―dirk or dagger or sharp instrument‖ that defendant was prohibited
from possessing while in confinement. (§ 4502, subd. (a).) Defendant argues,
however, that the evidence introduced at the penalty phase failed to establish that




                                          51
the item was sharp, and therefore his possession of the object should not have been
considered in aggravation under section 190.3, factor (b).
       As background, Terry Bardwell, a correctional officer at the Fresno County
Jail, testified at the penalty phase that she inspected defendant‘s property upon his
arrival at the jail. Officer Bardwell ―found — we consider it contraband, which
would be a shank. Umm, it was approximately five-and-a-half inches long and
one inch in width.‖ She wrote in her incident report that the object was made of
metal. She discarded the object because it ―was not of evidentiary value.‖ On
cross-examination, Bardwell conceded that she could not remember whether the
object was sharpened, nor did she record anything in her report other than its size
and material.
       Defense counsel moved to strike Bardwell‘s testimony on the ground that
there was insufficient evidence that the object had been sharpened to establish a
violation of section 4502, subdivision (a). The trial court denied the motion,
explaining, ―I think it‘s admissible. It‘s contraband. It is contraband because it is
an item that can be used as a weapon. So there‘s case law that says even if there‘s
a reasonable inference that the item seized was in fact a tattoo needle and not a
stabbing utensil, that it still is admissible as a weapon because it can be used as a
weapon. Might have been a shoe horn, about five-and-a-half inches long, inch
wide.‖ Later, the trial court mentioned the shank when determining that a death
sentence was justified, stating, ―The incidents in jail following Mr. Sivongxxay‘s
arrest have been considered: threats to correctional officers after discipline was
meted out or explained; the presence of a shank, which under jail rules was a
weapon, and as an inmate can be considered by the Court as including a threat of
violence.‖
       In asserting that the trial court erred in considering possession of the item
among the circumstances in aggravation, defendant emphasizes that although

                                          52
Officer Bardwell described the item as a ―shank,‖ she acknowledged on cross-
examination that she could not recall if it was sharp. Under the circumstances,
defendant argues, ―this small piece of metal of unknown characteristics cannot
qualify as a sharpened or stabbing instrument under section 4502 as a matter of
law.‖
        We need not decide whether the trial court erred in considering the
evidence regarding the ―shank‖ in aggravation, however, because even if we were
to assume that defendant has correctly identified error, the mistake was harmless.
Our determination whether state law error at the penalty phase prejudiced the
defendant turns on whether ―there is a reasonable (i.e., realistic) possibility that the
[sentencer] would have rendered a different verdict had the error or errors not
occurred.‖ (People v. Brown (1988) 46 Cal.3d 432, 448.) ― ‗When evidence has
been erroneously received at the penalty phase, this court should reverse the death
sentence if it is ―the sort of evidence that is likely to have a significant impact on
the [sentencer‘s] evaluation of whether defendant should live or die.‖ ‘ ‖ (People
v. Hamilton (2009) 45 Cal.4th 863, 917.) Here, we have a clear indication of the
sentencer‘s decisionmaking process because the trial court stated on the record the
aggravating and mitigating evidence it considered in reaching its decision.
        Defendant‘s ―long pattern of violent crime against many, many victims‖
served as the organizing theme behind the trial court‘s summary of aggravating
evidence. As the trial court put it, ―[h]is life of victimization carried through from
the first act of violence in Washington State until the ultimate death of Henry
Song.‖ Within that framework, defendant‘s postarrest conduct was an
afterthought; it involved no acts of physical violence, and thus no victims, but only
the threat of violence. The trial court‘s lack of emphasis on the metal object
mirrors the prosecution‘s use of that evidence: It was only one of nine incidents
introduced under section 190.3, factor (b), and it merited only a brief mention in

                                          53
the prosecutor‘s penalty phase closing argument. To the extent the trial court
placed any weight on defendant‘s conduct in custody and the future dangerousness
it might have portended, the properly admitted evidence that defendant threatened
a correctional officer, discussed post, conveyed that same theme. Thus, even
assuming the trial court erred in considering evidence of the metal object, its error
does not require reversal of the death sentence.

                    ii. Statements to Correctional Officer
       Defendant also challenges the admission of evidence under section 190.3,
factor (b) that he threatened a correctional officer at the Fresno County Jail.
       Eulalio Gomez, a correctional officer at the jail, testified that following an
altercation between defendant and other inmates, defendant was moved to
isolation. Officer Gomez was assigned the task of telling defendant that he was
being removed from the general population and explaining the reasons why.
Gomez testified that when he informed defendant that he was being placed in
isolation, ―[h]e became very hostile towards me. He began threatening me.‖
Specifically, defendant said to him, ― ‗I see you all the time in the streets, I‘ll
remember you,‘ ‖ and he repeated that statement several times. Gomez explained
that defendant ―faced towards me, his hands clenched and very hostile, yelling at
me and approximately three feet away from me.‖ Gomez described this as a
―combative stance, being a stance that would create an opinion or a belief that this
person was going to attack you, assault you.‖ However, defendant did not touch
Gomez, nor did Gomez ask defendant what he meant by ― ‗I see you all the time in
the streets, I‘ll remember you.‘ ‖
       The prosecutor sought to admit this evidence under section 190.3, factor (b)
―as a violation of section 69 of the Penal Code.‖ Defense counsel objected,
suggesting that defendant‘s comments represented a ―communications problem‖



                                           54
rather than a threat. The trial court decided that it would ―probably just hear
[Gomez‘s testimony] and see whether it amounts to a threat in my mind.‖ The
trial court apparently concluded that the evidence was admissible because in
explaining its decision to sentence defendant to death, it said it had considered as
aggravating evidence ―threats to correctional officers after discipline was meted
out or explained.‖
       On appeal, defendant contends that his conduct did not constitute criminal
activity, and was therefore inadmissible, because it did not violate section 69. In
relevant part, section 69 makes it a criminal offense to ―attempt[], by means of any
threat or violence, to deter or prevent an executive officer from performing any
duty imposed upon such officer by law.‖ We have explained that a ―threat,
unaccompanied by any physical force, may support a conviction‖ under this part
of section 69, but that to ―avoid the risk of punishing protected First Amendment
speech . . . the term ‗threat‘ has been limited to mean a threat of unlawful violence
used in an attempt to deter the officer.‖ (In re Manuel G. (1997) 16 Cal.4th 806,
814-815.) ―The central requirement . . . is an attempt to deter an executive officer
from performing his or her duties imposed by law; unlawful violence, or a threat
of unlawful violence, is merely the means by which the attempt is made.‖ (Id., at
p. 815.) Accordingly, a violation of section 69 through a threat ―requires a
specific intent to interfere with the executive officer‘s performance of his duties.‖
(People v. Gutierrez (2002) 28 Cal.4th 1083, 1153 (Gutierrez).) ―[A] present
ability to carry out threats is not required if . . . the target of the threat could
reasonably fear retaliatory action on some future occasion.‖ (People v. Hines
(1997) 15 Cal.4th 997, 1060 (Hines).)
       In arguing that his conduct did not constitute a violation of section 69,
defendant points to cases where the Attorney General declined to contest
admissibility, where our observations about section 69 appeared in dicta, or that

                                            55
are clearly distinguishable for other reasons. (See People v. Rodrigues (1994)
8 Cal.4th 1060, 1169-1170 [although ―defendant verbally abused [correctional
officer] and threatened to ‗kick [his] ass,‘ ‖ Attorney General declined to argue on
appeal that this constituted a criminal threat]; People v. Tuilaepa (1992) 4 Cal.4th
569, 590 [noting defendant‘s reliance on the ―general notion that abusive and
even threatening language does not violate a penal statute‖]; People v. Pinholster
(1992) 1 Cal.4th 865, 961-962 [defendant‘s statement to sheriff in county jail that
―if he were not sent to state prison he would ‗go out on the streets and do
something to get back in‘ ‖ was ―arguably inadmissible‖], disapproved on another
ground in People v. Williams (2010) 49 Cal.4th 405, 459; People v. Silva (1988)
45 Cal.3d 604, 636 [where defendant told officer that ―he would kill the first
police officer to step inside his cell if he was not permitted to visit with his wife,‖
Attorney General conceded erroneous admission but argued it was harmless];
People v. Coleman (1988) 46 Cal.3d 749, 787-788 [though it was ―not clear‖ that
defendant‘s threat to correctional officer constituted criminal activity, defendant‘s
claim was forfeited because he failed to object].) Defendant fails to identify any
case squarely holding that statements akin to those he made to Officer Gomez fall
outside the scope of section 69.
       As defendant recognizes, ―threats must be placed and understood in their
context.‖ (People v. Iboa (2012) 207 Cal.App.4th 111, 119.) Here, the trial court
could have reasonably inferred from defendant‘s comments that he sought to use a
threat of future violence ―to interfere with [Officer Gomez]‘s performance of his
duties‖ (Gutierrez, supra, 28 Cal.4th at p. 1153), namely, Gomez‘s task of telling
defendant he had been reassigned to an isolation unit. When Gomez explained
that defendant was being moved to isolation, defendant repeatedly yelled the ―I‘ll
remember you‖ statement while standing three feet away from Gomez with his
fists clenched in a ―combative stance‖ that Gomez perceived as ―very hostile.‖

                                          56
Defendant thereby ―underscored his words with action,‖ and ―[h]is conduct gave
context to his threatening speech.‖ (Iboa, supra, at p. 120; see ibid. [concluding
that defendant‘s ―threatening statements, combined with his physical conduct of
pacing, clenching his fists, showing off his gang tattoos, and aggressively
approaching [a firefighter], constituted the type of threat of unlawful violence
section 69 prohibits‖]; see also Hines, supra, 15 Cal.4th at pp. 1059-1060 [where
defendant told correctional officer attempting to restrain him that the officer
―would be sorry [he] ever saw‖ him, ―the jury could reasonably infer that the
purpose of this threat was to prevent [the officer] from restraining defendant‖].)
Accordingly, the trial court did not err in admitting and considering defendant‘s
statements under section 190.3, factor (b) as a violation of section 69.

               b. Escape from Custody
       Defendant contends the trial court erred in considering his status as a prison
escapee under section 190.3, factor (a), which allows the prosecution to present
evidence regarding ―[t]he circumstances of the crime of which the defendant was
convicted in the present proceeding.‖
       In its opening statement and again in closing argument at the penalty phase,
the prosecution noted that defendant escaped on February 26, 1996, from a
Washington State prison where he was serving a 55-month sentence for first
degree robbery. Defendant had introduced evidence of the escape during the guilt
phase in an attempt to rebut Mounsaveng‘s allegation that defendant threatened
him in December 1995 and January 1996. The prosecution invoked this evidence
at the penalty phase to show that defendant began his Fresno crime spree ―just five
months after his escape from Washington State Prison, which demonstrates . . .
Mr. Sivongxxay‘s lack of willingness to learn from his prior punishment, and
shows his incarceration did not change his violent character.‖ The prosecutor‘s



                                         57
penalty phase closing argument referenced People v. Turner (1990) 50 Cal.3d 668
and People v. Johnson (1992) 3 Cal.4th 1183 (Johnson), in which we held that
evidence that a defendant had been released from felony incarceration shortly
before the commission of charged crimes was admissible under section 190.3,
factor (a). (Turner, at pp. 713-714; Johnson, at p. 1243 [―[t]hat defendant
committed [the present] crimes only six days after his release from prison on a
prior homicide conviction supports the inference that incarceration had failed to
change his violent character. The jury could properly consider this inference in
determining his sentence‖].)
       In announcing its sentencing decision, the trial court here said that although
it was ―not considering any circumstances of his escape itself,‖ it had considered
the fact that defendant committed the charged crimes ―while he was on escape
status as a previously convicted felon.‖
       Defendant attacks the trial court‘s consideration of his escape status
because, in his words, ―[t]he walkaway was simply unrelated to the circumstances
of the capital crime.‖ We need not decide whether this is correct, or whether a
sufficient connection existed between the escape and the circumstances of the
capital crime here for evidence of defendant‘s status as an escapee to be
considered under section 190.3, factor (a). Defendant failed to raise a timely
objection to admission and consideration of this evidence. The claim is therefore
forfeited. (People v. Lewis (2006) 39 Cal.4th 970, 1052; Johnson, supra, 3 Cal.4th
at p. 1243.)20

20     Defendant asserts that the prejudice from the multiple evidentiary errors he
perceives to have occurred at the penalty phase must be assessed cumulatively.
Since we have identified and assumed only one error as to which a claim on
appeal has not been forfeited, and have concluded that the assumed error was
harmless, no further review of prejudice is necessary.



                                           58
           3. Miscellaneous Challenges to the Death Penalty
       Defendant raises numerous challenges to the constitutionality of the death
penalty. He acknowledges that we have previously rejected each of these
contentions. We do so again here, as detailed below.
       Section 190.2 is not impermissibly vague, nor is it overbroad in a manner
that fails to meaningfully narrow the class of murderers eligible for the death
penalty. (People v. Myles (2012) 53 Cal.4th 1181, 1224-1225.)
       Section 190.3, factor (a), which permits the sentencer to consider the
―circumstances of the crime,‖ is not impermissibly vague or overbroad. (People v.
Mills (2010) 48 Cal.4th 158, 213 (Mills).)
       Section 190.3, factor (b) does not violate the Fifth, Sixth, Eighth or
Fourteenth Amendments to the federal Constitution in allowing the sentencer to
consider previously unadjudicated criminal activity. (People. v. Jones (2013) 57
Cal.4th 899, 980.)
       Section 190.3‘s use of the terms ―extreme‖ and ―substantial‖ does not erect
unconstitutional barriers to the sentencer‘s consideration of mitigating evidence.
(People v. Valdez (2012) 55 Cal.4th 82, 180 (Valdez).)
       Section 190.3, factor (i) does not violate the Eighth or Fourteenth
Amendments to the federal Constitution by permitting the sentencer to consider
the defendant‘s age at the time of the crime. (Mills, supra, 48 Cal.4th at p. 214.)
       Section 190.3, factor (k) is not unconstitutionally vague. (Weaver, supra,
53 Cal.4th at p. 1092.)
       The relative culpability of codefendants is not a constitutionally required
mitigating factor. (People v. Maciel (2013) 57 Cal.4th 482, 549.)
       California‘s sentencing statute sets forth a constitutionally adequate burden
of proof concerning the aggravating factors and the sentencer‘s ultimate decision.
(People v. Banks (2014) 59 Cal.4th 1113, 1207 (Banks).)


                                         59
       The instructions and standards relevant to the sentencing decision are not
impermissibly vague or ambiguous on any of the following grounds: CALJIC No.
8.88 uses the phrases ―so substantial‖ and ―warrants‖ (Valdez, supra, 55 Cal.4th at
p. 180); CALJIC No. 8.88 fails to explain that the sentencer‘s ultimate
determination is whether death is the appropriate penalty (Valdez, at p. 179);
section 190.3 fails to guide the sentencer‘s discretion (People v. Booker (2011) 51
Cal.4th 141, 196); CALJIC No. 8.88 fails to state that life without possibility of
parole is mandatory if the aggravating factors do not outweigh the mitigating
factors (People v. Gamache (2010) 48 Cal.4th 347, 407); and the sentencer is not
instructed to presume that life without possibility of parole is the appropriate
sentence (Valdez, at p. 179).
       The trial court was not required to make written findings before reaching its
sentencing decision. (People v. Mendoza (2011) 52 Cal.4th 1056, 1097.)
       Neither the Eighth Amendment nor the Fourteenth Amendment to the
federal Constitution, nor international law, mandates the use of intercase
proportionality review. (Banks, supra, 59 Cal.4th at p. 1207.) Nor does the
California death penalty sentencing scheme violate equal protection for failing to
provide certain procedural safeguards present in noncapital cases; as we have
explained, ―[t]he two groups of defendants are not similarly situated.‖ (People v.
Johnson (2016) 62 Cal.4th 600, 657.)
       Finally, we once again reject the contention that California‘s use of the
death penalty, at all or as actually implemented in this state, violates international
law and the Eighth Amendment. (People v. Johnson, supra, 62 Cal.4th at p. 658.)




                                          60
                             III. CONCLUSION
     We affirm the judgment in its entirety.
                                               CANTIL-SAKAUYE, C. J.
WE CONCUR:

WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
KRUGER, J.




                                      61
          CONCURRING AND DISSENTING OPINION BY LIU, J.

       In California, not all first degree murders are punishable by death or by life
imprisonment without the possibility of parole. The gateway to these sanctions is
the finding of a ―special circumstance,‖ a circumstance that sets the murder apart
from other murders and makes it eligible for the law‘s most severe penalties.
(Pen. Code, § 190.2; see People v. Memro (1985) 38 Cal.3d 658, 703 (Memro)
[― ‗The fact or set of facts to be found in regard to the special circumstance is no
less crucial to the potential for deprivation of liberty on the part of the accused
than are the elements of the underlying crime . . . .‘ ‖].) The special circumstance
allegation in this case was that the murder was committed during the commission
of a robbery. (Pen. Code, § 190.2, subd. (a)(17)(A); all undesignated statutory
references are to this code.)
       A criminal defendant is constitutionally entitled to a jury trial on the truth
of a special circumstance allegation. (See Ring v. Arizona (2002) 536 U.S. 584,
609; People v. Prieto (2003) 30 Cal.4th 226, 256–257.) A defendant may waive a
jury trial, but as a constitutional matter, a trial court may not accept a voluntary
waiver ―unless it 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.‘ ‖ ‘ ‖ (People v. Collins (2001) 26 Cal.4th 297, 305
(Collins); see Moran v. Burbine (1986) 475 U.S. 412.) In addition, the Penal Code
provides: ―The trier of fact shall make a special finding that each special
circumstance charged is either true or not true. . . . [¶] If the defendant was
convicted by the court sitting without a jury, the trier of fact shall be a jury unless
a jury is waived by the defendant and by the people, in which case the trier of fact
shall be the court.‖ (§ 190.4, subd. (a) (section 190.4(a)).) In Memro, we held that
under section 190.4(a) ―an accused whose special circumstance allegations are to
be tried by a court must make a separate, personal waiver of the right to a jury
trial.‖ (Memro, supra, 38 Cal.3d at p. 704.) In this case, defendant Vaene
Sivongxxay was denied a jury trial on the special circumstance allegation in
violation of these constitutional and statutory guarantees. This unlawful denial of
a jury trial is a structural error requiring automatic reversal.
       Today‘s opinion concludes otherwise. The court reprints Sivongxxay‘s
waiver colloquy in its entirety (maj. opn., ante, at pp. 10–12) and acknowledges
that ―[t]here was no specific reference in the waiver colloquy to the need to
adjudicate the special circumstance allegation; the term ‗special circumstance‘ was
never mentioned at all‖ (id. at p. 30). Yet the court finds no constitutional
violation, reasoning that Sivongxxay‘s assent to a jury trial waiver on ―all issues‖
meant he understood he was waiving a jury trial on the special circumstance
allegation. (Id. at p. 25.) This is a remarkably loose interpretation of what it
means to make a ―knowing and intelligent‖ waiver. (Collins, supra, 26 Cal.4th at
p. 305.) How can it be said that Sivongxxay waived a jury trial on the special
circumstance allegation ― ‗ ― ‗with a full awareness both of the nature of the right
being abandoned and the consequences of the decision to abandon it‘ ‖ ‘ ‖ (ibid.,
italics added) when the special circumstance ―was never mentioned at all‖ (maj.
opn., ante, at p. 30) in the waiver colloquy?
       Sivongxxay‘s waiver was also deficient under section 190.4(a) because he
made no separate waiver of a jury trial on the special circumstance allegation. On
this point, the court agrees; it concludes that the waiver colloquy lacked the

                                            2
―precision‖ and ―specificity‖ required by the statute. (Maj. opn., ante, at p. 30.)
But the court goes on to find this error harmless on the ground that Sivongxxay
has not shown a reasonable probability that he ―would have chosen a jury trial for
the special circumstance allegation had the trial judge avoided [the] error.‖ (Id. at
p. 45.) This latter holding may understandably cause a bit of whiplash: The court,
having found error under the statute, excuses the error through reasoning that
defeats the statute‘s very purpose.
       Section 190.4(a) provides that even if a defendant waives a jury trial on
other aspects of a capital case, the trier of fact on the special circumstance
allegation ―shall be a jury‖ unless the defendant executes a separate waiver.
(§ 190.4(a); see Memro, supra, 38 Cal.3d at p. 704.) The Legislature, recognizing
the gravity of a special circumstance allegation, expressly mandated a jury trial
unless the defendant forgoes it specifically through a separate waiver. What is left
of this requirement if, upon proof of a violation, the burden is on the defendant to
show he would have wanted a jury trial had the trial court not violated the statute?
Here, as in People v. Blackburn (2015) 61 Cal.4th 1113, 1131 (Blackburn) and
People v. Tran (2015) 61 Cal.4th 1160, 1169 (Tran), ―[t]he statute does not
require the defendant to affirmatively show he or she wanted a jury trial; a jury
trial is the default procedure absent a personal waiver.‖ When a statute expressly
guarantees a jury trial on a specific matter unless the defendant waives a jury trial
on that matter, the deprivation of a jury trial without a waiver on that matter is a
―miscarriage of justice‖ that requires automatic reversal. (Cal. Const., art. VI,
§ 13; see Blackburn, at p. 1136; Tran, at p. 1169.)
       From today‘s opinion, one would not get the sense that the jury trial
guarantees in federal and state law ―reflect a fundamental decision about the
exercise of official power — a reluctance to entrust plenary powers over the life
and liberty of the citizen to one judge or to a group of judges.‖ (Duncan v.

                                           3
Louisiana (1968) 391 U.S. 145, 156.) I would not have thought that such a
fundamental right — what Justice Scalia called ―the spinal column of American
democracy‖ (Neder v. United States (1999) 527 U.S. 1, 30 (conc. & dis. opn. of
Scalia, J.)) — could be so easily relinquished or, more accurately, wrested from a
criminal defendant by the very institution whose potential for overreach the right
is meant to protect against. ―The guarantees of jury trial in the Federal and State
Constitutions reflect a profound judgment about the way in which law should be
enforced and justice administered. . . . Fear of unchecked power, so typical of our
State and Federal Governments in other respects, found expression in the criminal
law in this insistence upon community participation in the determination of guilt
or innocence.‖ (Duncan, at pp. 155–156.) Today‘s decision breaks faith with this
constitutional judgment and undermines an important safeguard of California‘s
death penalty scheme.
       For these reasons, and because Sivongxxay‘s jury trial waiver as to the
penalty phase was also invalid, I respectfully dissent from the court‘s affirmance
of the special circumstance finding and the death judgment.
                                           I.
       In addressing Sivongxxay‘s constitutional claim before his statutory claim,
today‘s opinion inverts the usual order of analysis. (See, e.g., People v. Brown
(2003) 31 Cal.4th 518, 534; People v. Duarte (2000) 24 Cal.4th 603, 610.)
Perhaps this is because the court‘s overall approach to the jury trial waiver on the
special circumstance allegation flows from its conviction that the waiver was
knowing and intelligent. This conviction, however, finds no support in the law or
the record before us.
       The court cites People v. Berutko (1969) 71 Cal.2d 84 (Berutko) for the
proposition that a defendant who ― ‗waives a jury trial . . . is deemed to have
consented to a trial of all of the issues in the case before the court sitting without a

                                           4
jury.‘ ‖ (Id. at p. 94.) Under Berutko, the court says, the finding that
Sivongxxay‘s guilt phase waiver was ―knowing and intelligent is sufficient in
itself to defeat defendant‘s contention that his waiver did not meet constitutional
standards with regard to the special circumstance allegation.‖ (Maj. opn., ante, at
p. 22.) But a glance at Berutko makes clear that this is a stretch.
        Although the court implies that Berutko set forth a ―general rule‖ of
constitutional law (maj. opn., ante, at pp. 21–22, fns. 5, 7), that case did not
address any constitutional issue concerning the jury trial waiver. Instead, Berutko
addressed the scope of a jury trial waiver in the context of a specific statute,
former section 969 1/2 (now section 969.5), which provided that ― ‗the question
whether or not [the defendant] has suffered such previous conviction must be tried
by a jury impanelled for that purpose, unless a jury is waived, in which case it may
be tried by the court.‘ ‖ (Berutko, supra, 71 Cal.2d at p. 94.) The statutory nature
of Berutko‘s holding was confirmed in Memro, where we found Berutko
―inapposite‖ to interpreting section 190.4. (Memro, supra, 38 Cal.3d at p. 702,
fn. 52.) Berutko never discussed whether the jury trial waiver in that case was
knowing or intelligent as a constitutional matter. (See Loeffler v. Target Corp.
(2014) 58 Cal.4th 1081, 1134 [― ‗ ―cases are not authority for propositions not
considered‖ ‘ ‖].) Indeed, Berutko‘s entire analysis of the waiver issue consisted
of just three sentences: The first said, ―This contention is without merit,‖ and the
other two quoted Court of Appeal opinions addressing jury trial waivers only in
the context of prior conviction allegations. (Berutko, at p. 94.) Berutko is not
authority for a ―general rule‖ applicable to a special circumstance allegation in a
capital trial.
        The real heart of the court‘s analysis is its claim that ―the specific
advisements the trial court provided to defendant before taking his waiver,
together with the other surrounding circumstances, confirm that defendant

                                            5
knowingly and intelligently relinquished his right to a jury trial for this
allegation.‖ (Maj. opn., ante, at p. 23.) The court asserts: ―The trial court‘s
advisement conveyed that defendant had a right to a jury trial with regard to all
issues as to which an adverse determination could expose him to the death penalty
— which included the special circumstance allegation — and that with his waiver,
defendant would be giving up that right.‖ (Id. at p. 25, italics added.)
       Let us compare this assertion, particularly the italicized phrase, with the
waiver colloquy: ―THE COURT: Mr. Mounsaveng, Mr. Sivongxxay, you each
have a right to a trial, either by a jury of 12 people selected from this community,
through a process that you would engage in with your attorneys, the district
attorney and the Court, or a trial in front of a judge, acting alone without a jury.
[¶] The burden of proof remains the same. The district attorney has the burden to
go forth with evidence sufficient to prove your guilt beyond a reasonable doubt.
Then, and only then, would we get to a penalty phase. [¶] In a court trial, I would
hear the evidence. I, alone, would make the decision on whether that evidence
was sufficient to prove your guilt beyond a reasonable doubt. [¶] In the event I
made such a finding, as to either or both of you, we would then proceed to a
penalty phase, where the district attorney would present aggravation evidence.
Through your — you, through your attorney, would have a right to present
mitigation evidence, and it would fall upon me to make the decision as to the
appropriate punishment, which could result in a death penalty sentence. [¶] Do
you give up your right to a jury trial and agree that this Court, alone, will make
those decisions . . . ? [¶] . . . [¶] THE COURT: Mr. Sivongxxay? [¶] THE
DEFENDANT SIVONGXXAY: Yes. [¶] THE COURT: Ms. Detjen? [¶] MS.
DETJEN: Yes, Your Honor, the People waive the jury trial. [¶] THE COURT:
All right. We‘ll show a jury waiver on all issues . . . .‖



                                           6
       Today‘s opinion acknowledges, as it must, that ―[t]here was no specific
reference in the waiver colloquy to the need to adjudicate the special circumstance
allegation; the term ‗special circumstance‘ was never mentioned at all.‖ (Maj.
opn., ante, at p. 30.) What, then, is the basis for the assertion that ―[t]he trial
court‘s advisement conveyed that defendant had a right to a jury trial with regard
to all issues as to which an adverse determination could expose him to the death
penalty — which included the special circumstance allegation — and that with his
waiver, defendant would be giving up that right‖? (Id. at p. 25, italics added.)
Simply put, there is none.
       The court relies on People v. Diaz (1992) 3 Cal.4th 495 (Diaz), but that
case is easily distinguished. The colloquy in Diaz expressly mentioned the special
circumstance. (Id. at p. 564 [trial judge asked Diaz whether he understood that his
waiver applied to ― ‗both phases . . . of the special circumstanceS case‘ ‖].)
Further, the record showed that Diaz told the court he had discussed the matter
― ‗quite thoroughly‘ ‖ with his attorney. (Id. at p. 565.) The case before us does
not involve ―similar facts.‖ (Maj. opn., ante, at p. 26.)
       The court says that to distinguish Diaz from this case is to endorse ―the
proposition that the judge was constitutionally bound to utter the phrase ‗special
circumstance‘ at some point in the waiver colloquy with defendant.‖ (Maj. opn.,
ante, at pp. 26–27.) I agree that a trial judge need not recite any ― ‗ ―talismanic
phrase‖ ‘ ‖ (id. at p. 27) when discussing a special circumstance jury waiver. But
it is unusual, to say the least, to explain a thing without naming the thing being
explained. This is especially true here in light of our recognition that the special
circumstance is a ―unique‖ feature of California‘s capital scheme. (People v.
Bacigalupo (1993) 6 Cal.4th 457, 468 (Bacigalupo); see People v. Garcia (1984)
36 Cal.3d 539, 552 [―special circumstances are sui generis — neither a crime, an
enhancement, nor a sentencing factor‖].) As noted, the ultimate test is whether a

                                            7
waiver was 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.) The point of a waiver colloquy, however phrased, is
to inform the defendant that he is entitled to a jury trial on a separate allegation
that makes him eligible for the death penalty. The trial court‘s failure in this case
to even mention the special circumstance allegation is surely probative of whether
Sivongxxay‘s jury waiver on that allegation was knowing and intelligent.
       The court says that focusing ―on perceived deficiencies in the judge‘s
advisements to defendant‖ ignores other relevant circumstances, such as
―defendant‘s prior criminal history, other events before and after the waiver was
entered, and the fact that defendant was represented by counsel.‖ (Maj. opn., ante,
at pp. 23–24, fn. 8.) But these other considerations do not tend to show that
Sivongxxay‘s special circumstance jury waiver was knowing and intelligent. Why
is Sivongxxay‘s criminal history relevant when he has never been subject to
California‘s ―unique‖ capital scheme? (Bacigalupo, supra, 6 Cal.4th at p. 468.)
And what ―other events before and after the waiver was entered‖ is the court
referring to?
       As for the fact that Sivongxxay was represented by counsel, our cases have
found this relevant when the record indicates that counsel discussed the
implications of the waiver decision with the defendant. (See People v.
Cunningham (2015) 61 Cal.4th 609, 636 (Cunningham) [upholding waiver where
defendant ―confirm[ed] he had discussed the issue with his counsel, who
concurred in the waiver‖]; People v. Weaver (2012) 53 Cal.4th 1056, 1070–1071
[upholding waiver where defense counsel ―stated that he, the other defense
attorney, defendant, and defendant‘s father had discussed the matter together the
day before for about two hours, and that the attorney believed waiving a jury was
in defendant‘s best interest‖]; People v. Scott (1997) 15 Cal.4th 1188, 1208 (Scott)

                                           8
[upholding waiver where ―[d]efense counsel stated that he and defendant had
discussed the matter, and both agreed that the waiver was in defendant‘s best
interests ‗in terms of trial tactics‘ ‖]; Diaz, supra, 3 Cal.4th at p. 565 [upholding
waiver where defendant ―told the court that he had discussed the matter ‗quite
thoroughly‘ with his counsel‖]; People v. Robertson (1989) 48 Cal.3d 18, 36
(Robertson) [upholding waiver where defendant ―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‖]; People v.
Deere (1985) 41 Cal.3d 354, 357, 359 [defense counsel ―explained at length to the
court why he permitted his client . . . to waive a penalty jury‖ and affirmed that
―defendant ‗knows what would happen if the case went to jury trial‘ ‖].) Nothing
in the record here indicates that Sivongxxay discussed the nature or consequences
of his jury waiver with his attorney.
       The court adds that Sivongxxay‘s ―failure to express any surprise or
confusion regarding the judge‘s assertion that the waiver applied to ‗all issues‘
represents a relevant consideration in ascertaining the nature and extent of his
waiver.‖ (Maj. opn., ante, at p. 14, fn. 2.) But if Sivongxxay had expressed
surprise or confusion, presumably the trial judge or counsel would have clarified
the issue, and we would not be here discussing it on appeal. In essence, the court
would require the record to affirmatively demonstrate that Sivongxxay did not
know he was entitled to a jury trial on the special circumstance allegation. That is
not what the law requires, and for good reason: Where a defendant claims he did
not understand the nature of his jury trial right and the consequences of waiving it,
it makes no sense to say the defendant can prevail only if the record shows that he
did not know what he did not know.
       In sum, the waiver colloquy did not mention the special circumstance
allegation, and nothing else shows that Sivongxxay understood the nature of the

                                           9
allegation before he waived his right to a jury trial. On this record, I do not see
how the court can conclude that Sivongxxay waived a jury trial on the special
circumstance allegation ― ‗ ― ‗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.) Sivongxxay was denied a jury trial on the
special circumstance allegation in violation of the federal and state Constitutions.
                                           II.
       Notwithstanding its constitutional holding, today‘s opinion concludes that
the trial court, in proceeding to a bench trial on the special circumstance
allegation, violated section 190.4(a) by failing to take ―a ‗separate‘ waiver‖ with
the ―specificity‖ required by the statute. (Maj. opn., ante, at p. 30.) But the court
holds that the error does not require automatic reversal. To obtain relief, the court
says, Sivongxxay must demonstrate a reasonable probability that he would have
chosen a jury trial on the special circumstance allegation if the trial court had
sought a separate waiver. (Id. at p. 33.) The court concludes that Sivongxxay has
not carried this burden and therefore finds the error harmless. (Id. at pp. 44–45.)
       At the outset, it bears mention that no party mentioned this theory of
harmless error in the principal briefs. Sivongxxay maintained that the statutory
error is structural; the Attorney General argued only that any error was harmless
because, given the overwhelming evidence in support of the robbery-murder
allegation, a jury would have found the allegation to be true. It was not until well
after oral argument, when this court vacated submission and invited supplemental
briefing on the theory adopted today, that the Attorney General embraced it.
Although this court is not limited to the parties‘ arguments in conducting harmless
error review (Cal. Const., art. VI, § 13), the fact that no party thought to advance
the court‘s theory suggests its novelty.



                                           10
       (As an aside, I find it troubling that the Attorney General‘s supplemental
brief contends — at the eleventh hour, with no explanation for its belated epiphany
— that our precedent ―virtually compels‖ the harmless error analysis in today‘s
opinion. The absence of any explanation risks the perception that the Attorney
General‘s new contention is opportunistic or that his initial briefing, having missed
a theory ―virtually compel[led]‖ by our precedent, was of questionable
competence. Neither does wonders for the government‘s credibility. (See People
v. Eubanks (1996) 14 Cal.4th 580, 589 [the prosecutor ― ‗ ―is in a peculiar and
very definite sense the servant of the law‖ ‘ ‖ and must exercise his or her
functions ― ‗with the highest degree of integrity and impartiality‘ ‖]; Corrigan, On
Prosecutorial Ethics (1986) 13 Hastings Const. L.Q. 537, 537 [―the integrity of
the prosecutor‖ ―lies at the heart of our criminal justice system and is the
foundation from which any prosecutor‘s authority flows‖].) This is not the first
time this concern has arisen in recent years. (See People v. Grimes (2016) 1
Cal.5th 698, 720 [Attorney General did not argue harmless error in her briefing
but then, without explanation, argued harmless error after this court requested
supplemental briefing]; People v. Aranda (2012) 55 Cal.4th 342, 367, fn. 13; id. at
p. 379 (conc. & dis. opn. of Liu, J.) [Attorney General conceded in her answer
brief that instructional error required reversal but then, without explanation,
switched her position after this court requested supplemental briefing].))
       In any event, the court‘s theory of harmless error does not withstand
scrutiny. The reasoning of our recent decisions in Blackburn, supra, 61 Cal.4th
1113, and Tran, supra, 61 Cal.4th 1160, makes clear that a violation of section
190.4(a) is structural error. In Blackburn, we interpreted the statutory scheme
governing involuntary commitment proceedings for mentally disordered offenders.
Under section 2972, subdivision (a), a hearing to extend an offender‘s
commitment beyond the termination of parole ―shall be by jury unless waived by

                                          11
both the person and the district attorney.‖ Although Blackburn‘s lawyer had
submitted a request for a bench trial, we concluded that the trial court erred in
failing to elicit a personal jury trial waiver from Blackburn. (Blackburn, at
p. 1130.) This error, we said, ―defies ordinary harmless error analysis. To
speculate about whether a defendant would have chosen a jury trial if he or she
had been in a position to make a personal choice would pose insurmountable
difficulties, as would an inquiry into what effect, if any, that choice would have
had on the outcome of the trial. . . . ‗[W]here a case improperly is tried to the
court rather than to a jury, there is no opportunity meaningfully to assess the
outcome that would have ensued in the absence of the error.‘ [Citation.]
Accordingly, we treat a trial court‘s failure to obtain a required personal jury trial
waiver as tantamount to the denial of a jury trial, and as such, it constitutes a
‗miscarriage of justice‘ under California Constitution, article VI, section 13.
[Citations.]‖ (Blackburn, at p. 1134.)
       Importantly, we observed that the Court of Appeal in Blackburn had said
―the trial court could ‗reasonably expect counsel to discuss all pertinent matters
that will arise or that have arisen in pretrial hearings, including the right to a jury
trial and whether to have one.‘ The Court of Appeal added that ‗this was not the
first extension of defendant‘s MDO commitment, and the record does not suggest
that defendant was unaware of his right to a jury trial notwithstanding the lack of a
judicial advisement. Nor does the record suggest that defendant was unaware that
counsel intended to waive a jury and had done so or that defendant wanted a jury
trial and objected (or would have objected) to counsel‘s waiver.‘ ‖ (Blackburn,
supra, 61 Cal.4th at p. 1130.) Despite these circumstances, however, we declined
to place the burden on the defendant to show he wanted a jury trial: ―The statute
does not require the defendant to affirmatively show he or she wanted a jury trial;
a jury trial is the default procedure absent a personal waiver.‖ (Id. at p. 1131.)

                                           12
Our decision in Tran reached the same holding on the same reasoning with respect
to the jury trial guarantee of section 1026.5, subdivision (b)(4), which governs a
commitment extension proceeding for a person who pleaded not guilty by reason
of insanity. (Tran, supra, 61 Cal.4th at p. 1169.)
       In the case before us, section 190.4(a) guarantees a jury trial on a special
circumstance allegation even if the defendant waives a jury for other phases of the
trial: ―If the defendant was convicted by the court sitting without a jury, the trier
of fact [on the special circumstance allegation] shall be a jury unless a jury is
waived by the defendant and by the people, in which case the trier of fact shall be
the court.‖ In Memro, we made clear that section 190.4(a) mandates a jury trial on
a special circumstance allegation unless the defendant makes ―a separate, personal
waiver.‖ (Memro, supra, 38 Cal.3d at p. 704.) The court today holds that a
defendant is not entitled to a jury trial on a special circumstance allegation, even if
he has made no separate waiver, unless he can affirmatively show on the record
that he wanted a jury trial. This holding inverts the rule stated in section 190.4(a):
Whereas the statute requires a jury trial unless the record shows the defendant did
not want one, the court allows the denial of a jury trial unless the record shows the
defendant did want one. Here, as in Blackburn and Tran, a jury trial is the default
procedure mandated by statute. Here, as in Blackburn and Tran, a defendant is
entitled to a jury trial without an affirmative showing that he wanted one. And
here, as in Blackburn and Tran, a trial court‘s failure to obtain a valid waiver
before conducting a bench trial is a structural error requiring automatic reversal.
       The court purports to distinguish Blackburn and Tran on the ground that the
trial court in those cases did not obtain any waiver of a jury trial, whereas the trial
court in this case did obtain a jury trial waiver as to the guilt and penalty phases.
(Maj. opn., ante, at pp. 40–41.) Here, according to today‘s opinion, the trial court
committed ―an error in advisement.‖ (Id. at pp. 33, 35, 38.) This characterization

                                          13
of the error leads the court to rely on case law holding that errors in advisement do
not warrant reversal unless the defendant can show he would have made a
different choice had he been properly advised. (Id. at pp. 33–38.)
       Taking this reasoning on its own terms, I find it telling that the court does
not bother to spell out what constituted the ―error in advisement‖ here. Were the
court to do so, it would have to acknowledge that the waiver colloquy, culminating
in the trial court‘s acceptance of ―a jury waiver on all issues,‖ nowhere advised
Sivongxxay that the waiver covered the special circumstance allegation. But this
would run directly counter to the court‘s earlier determination that ―[t]he trial
court‘s advisement conveyed that defendant had a right to a jury trial with regard
to all issues as to which an adverse determination could expose him to the death
penalty — which included the special circumstance allegation — and that with his
waiver, defendant would be giving up that right.‖ (Maj. opn., ante, at p. 25.) How
can the court find ―an error in advisement‖ arising from the trial court‘s failure to
mention the special circumstance allegation and yet rely on what ―[t]he trial
court‘s advisement conveyed‖ to show that Sivongxxay knowingly and
intelligently waived a jury trial on the special circumstance allegation? Although I
recognize there is an analytical distinction between the statutory and constitutional
validity of a trial court‘s advisement in this context, the distinction is narrow to the
point of nonexistent on the facts here.
       As to the applicability of harmless error analysis, to describe the error here
as ―an error in advisement‖ is a euphemistic play on words. Sivongxxay was
―misadvised‖ only in the sense that the trial court told him nothing at all that
would have informed him that his jury trial waiver on ―all issues‖ covered the
special circumstance allegation. Against the backdrop of a statute requiring a
separate waiver, this is tantamount to a complete failure to obtain a proper jury
trial waiver on the special circumstance allegation. Sivongxxay did not suffer a

                                          14
mere error in advisement; he suffered an unlawful deprivation of the jury trial
guaranteed by section 190.4(a).
       The circumstances here do not resemble the contexts in which we have
―assess[ed] whether a defendant would have made a different decision absent an
error in advisement.‖ (Maj. opn., ante, at p. 33.) In People v. Martinez (2013) 57
Cal.4th 555, People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, and In re
Alvernaz (1992) 2 Cal.4th 924, this court evaluated whether a defendant would
have accepted a plea deal had the trial court or counsel properly advised the
defendant of the consequences. In People v. Sanchez (1995) 12 Cal.4th 1, we held
that a defendant‘s jury trial waiver was valid despite the trial court‘s failure to
inform him of the potential maximum and minimum terms of imprisonment. And
U.S. v. Williams (7th Cir. 2009) 559 F.3d 607 held that under the federal plain
error standard, a district court‘s failure to conduct a proper colloquy before taking
a jury trial waiver does not warrant reversal unless the defendant can show he
would have chosen a jury trial had he been properly advised. All of these cases
presented scenarios in which an error in advisement occurred in the course of the
defendant‘s actual decision to waive a particular right. None involved a scenario
in which trial court error resulted in no actual decision by the defendant to waive a
particular right. It is one thing for a reviewing court to assess how an error might
have affected a waiver decision that the defendant actually made; it is quite
another for a reviewing court to imagine what decision the defendant would have
made if he had been given an opportunity to make a decision at all.
       The more pertinent authority is Fortune v. U.S. (D.C. 2013) 59 A.3d 949
(Fortune). There the trial court held a jury trial for each of defendant‘s offenses
except for his felon in possession charge, which proceeded to a bench trial even
though the defendant had not entered a jury waiver. (Id. at p. 954.) District of
Columbia Code section 16–705, subdivision (a) provides that where a defendant is

                                          15
constitutionally entitled to a jury, a ―trial shall be by jury, unless the defendant in
open court expressly waives trial by jury and requests trial by the court, and the
court and the prosecuting officer consent thereto.‖ On appeal, the court explained
that ―the importance of the right to a jury trial, the explicit statutory command in
this jurisdiction that trial shall be by jury absent an express waiver by the
defendant in open court, and the relative inability of a reviewing court to engage in
review of whether the error affected the defendant‘s rights, all counsel in favor of
holding that the failure to make the prescribed determination of waiver is a
structural error, one that obviates the need for further inquiry into whether the
defendant‘s substantial rights were affected by the error.‖ (Fortune, at pp. 956–
957.) In reaching this conclusion, the court ―reject[ed] as speculative the
government‘s argument that ‗[q]uite obviously, [Mr. Fortune] was aware that he
was entitled to have a jury trial.‘ The record does not tell us what Mr. Fortune did
or did not know, and we decline to ascribe knowledge to Mr. Fortune based on the
representations of his counsel or the procedural posture of his case.‖ (Id. at p. 955,
fn. 5.)
          Today‘s opinion says Fortune is distinguishable because it involved ―an
error of constitutional dimensions.‖ (Maj. opn., ante, at p. 41.) But Fortune did
not address constitutional error; it addressed ―the trial court‘s error in failing to
seek a waiver of the jury trial‖ in accordance with procedures mandated by a
specific statute and by judicially articulated rules pursuant to the statute. (Fortune,
supra, 59 A.3d at p. 955; see id. at p. 957 [describing the error as ―the failure to
make the prescribed determination of waiver‖].) The court in Fortune declined to
look behind the statutory error to ask whether the defendant would have waived a
jury trial if the trial court had followed the appropriate waiver procedure. The
same approach applies here.



                                           16
       At the core of today‘s decision is the court‘s intuition that there is no basis
to think Sivongxxay, having waived a jury trial on the charged crimes and penalty,
would not have waived a jury trial on the special circumstance allegation as well.
(Maj. opn., ante, at pp. 44–45.) But suppose counsel had advised Sivongxxay not
to waive a jury trial on the special circumstance allegation. If Sivongxxay then
claimed ineffective assistance of counsel, would we be prepared to say there was
― ‗no rational tactical purpose‘ ‖ for the choice? (People v. Weaver (2001) 26
Cal.4th 876, 926.) Our general reluctance to second-guess defense tactics is one
reason why it makes no sense ―[t]o speculate about whether a defendant would
have chosen a jury trial if he or she had been in a position to make a personal
choice.‖ (Blackburn, supra, 61 Cal.4th at p. 1134.)
       More fundamentally, the Legislature has determined that in the context of a
capital trial, waiver of a jury trial as to some determinations should not be
understood to imply waiver of a jury trial as to others. Section 190.4(a) makes
clear that even ―[i]f the defendant was convicted by the court sitting without a
jury,‖ the trier of fact on the special circumstance allegation ―shall be a jury unless
a jury is waived.‖ And section 190.4, subdivision (b) (section 190.4(b)) says that
even ―[i]f [the] defendant was convicted by the court sitting without a jury[,] the
trier of fact at the penalty hearing shall be a jury unless a jury is waived . . . .‖ In
the face of these statutory commands, we should not indulge in ―two-out-of-three‖
reasoning to excuse a failure to take a separate jury trial waiver on the special
circumstance allegation, just as we would not indulge such reasoning to excuse a
failure to take a separate jury trial waiver on the penalty determination. With all
that is at stake in a capital trial, the Legislature saw fit to require a degree of
precision in eliciting the defendant‘s choices as to whether a judge or a jury should
decide the issues at each step of the proceeding. This court should faithfully
enforce the Legislature‘s directive.

                                            17
       Today‘s harmless error analysis changes the rules governing a capital
defendant‘s right to a jury trial on a special circumstance allegation. Despite the
plain language of section 190.4(a) and our decision in Memro, it does not really
matter whether the trial court takes a separate jury trial waiver; that is now a mere
technicality. What ultimately matters is whether the defendant has made a record
showing that he wanted a jury trial on the special circumstance allegation. To be
sure, the premise of harmless error doctrine is that ―few if any trials are entirely
free from error, and an appellate court would impair the basic functioning of the
criminal justice system if it were to reverse a conviction whenever some slight
misstep occurred.‖ (People v. Jackson (2014) 58 Cal.4th 724, 789–790 (conc. &
dis. opn. of Liu, J.).) But even if most types of error can be harmless, we must be
cautious in deploying this doctrine because ―to say that a conviction may stand in
spite of underlying error is at odds with the norm of legality that justifies the
state‘s imposition of criminal punishment in the first place. A declaration that an
error is harmless is, in essence, a conclusion that even though a legal right has
been violated, there will be no remedy for that violation.‖ (Id. at p. 790.) Here,
the court‘s particular form of harmless error inquiry does not merely foreclose a
remedy; it negates the legal right itself.
       Because there was no valid jury trial waiver under section 190.4(a), the true
finding on the special circumstance allegation and the death judgment should be
reversed.
                                             III.
       I also disagree with the court‘s conclusion that Sivongxxay knowingly and
intelligently waived his right to a jury trial on the penalty determination. The trial
court advised Sivongxxay that upon a finding of guilt, ―we would then proceed to
a penalty phase, where the district attorney would present aggravation evidence.
Through your — you, through your attorney, would have a right to present

                                             18
mitigation evidence, and it would fall upon me to make the decision as to the
appropriate punishment, which could result in a death penalty sentence.‖
       Sivongxxay was not advised that a jury must achieve unanimity in order to
render a penalty verdict. The significance of this omission must be considered in
light of the jury‘s function at the penalty phase. 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.‖ (People v. Brown (1988) 46 Cal.3d 432, 448; see People v. Manriquez
(2005) 37 Cal.4th 547, 589 [― ‗ ―the sentencing function is inherently moral and
normative, not factual‖ ‘ ‖].) This inherently ― ‗moral endeavor‘ ‖ (People v.
Moon (2005) 37 Cal.4th 1, 40), which is designed ― ‗to maintain a link between
contemporary community values and the penal system‘ ‖ (Woodson v. North
Carolina (1976) 428 U.S. 280, 295), renders a defendant‘s decision to waive a
jury trial at the penalty phase particularly consequential.
       The crux of the waiver decision is whether to submit the life-or-death
penalty decision to a judge for his or her sole determination or to 12 lay jurors of
differing backgrounds who must unanimously agree on a death sentence before it
may be imposed. The importance of jury unanimity in the normative
determination of the appropriate penalty has a character distinct from the
importance of jury unanimity in the factual adjudication of guilt. Other courts
have recognized as much. In Commonwealth v. O’Donnell (Pa. 1999) 740 A.2d
198, the trial court had made clear during its penalty phase waiver colloquy that
the defendants were ―entitled to a jury trial in the death penalty phase‖ and that
they had the right to present evidence ―in mitigation of the application of the death
penalty.‖ (Id. at p. 212.) The Pennsylvania high court nonetheless found the
defendants‘ jury trial waiver constitutionally inadequate, principally because the

                                          19
trial court had not explained that a sentencing jury must be unanimous in its
verdict: ―Given the unique role a sentencing jury plays in the penalty phase of a
capital case [citation], it . . . seems appropriate for any colloquy preceding a trial
court‘s acceptance of a capital defendant‘s waiver to a penalty-phase jury to
inform the defendant of the requirement under Pennsylvania law that a penalty-
phase jury render a unanimous verdict. The defendant should be asked, in other
words, whether he understands that, if elected, a twelve member jury would be
required to unanimously agree that a sentence of death is appropriate before
imposing such a verdict on a defendant.‖ (Id. at p. 213; see also State v. Martinez
(N.M. 2002) 43 P.3d 1042, 1048–1049 [―As a matter of pure probability, the
requirement of jury unanimity means that while a defendant who is sentenced by a
judge has only one chance of avoiding the death penalty, a defendant who is
sentenced by a jury has twelve. [Citation.] We agree with Defendant that a
waiver of the right to be sentenced by a jury cannot be considered knowing and
intelligent unless the defendant is aware of this critical aspect.‖]; Miller v. Beard
(E.D.Pa. 2016) 214 F.Supp.3d. 304, 358 [granting habeas corpus relief to
defendant whose waiver of a penalty phase jury was not knowing and voluntary
because trial court failed to explain state unanimity requirements for sentencing
juries].)
       In this case, not only did the trial court give no advisement concerning
unanimity; the record also contains no indication that Sivongxxay discussed the
waiver with counsel or that the trial court, prosecutor, or defense counsel ever
asked Sivongxxay whether he understood the nature of the right he was giving up.
Further, because capital sentencing is the only context in which California law
authorizes a jury to decide the appropriate punishment for a criminal offense,
Sivongxxay‘s prior convictions for noncapital offenses in other jurisdictions



                                           20
provide no basis to infer that he understood the significance of a waiver of his
right to a jury trial at the penalty phase.
       The circumstances in this case differ markedly from those in which we
have found a knowing and intelligent penalty phase waiver. In People v. Weaver
(2012) 53 Cal.4th 1056, 1076, the trial court was ―exceptionally careful in taking
defendant‘s jury waiver‖; the court accepted a written penalty phase waiver form
and asked defendant to reaffirm his waiver before the start of the penalty phase. In
Scott, the trial court ―explained the nature of a penalty trial,‖ including the jury
unanimity requirement; the defendant confirmed he had discussed the waiver with
counsel; and both the prosecutor and trial court described in detail the penalty
phase procedure. (Scott, supra, 15 Cal.4th at p. 1208.) In Diaz, the trial court
explained the jury unanimity requirement; ―defendant acknowledged that he had
thoroughly discussed the jury waiver with his attorney‖; and ―when the court
asked whether he had any questions regarding the waiver, or wished to discuss it
further with counsel, defendant answered in the negative.‖ (Diaz, supra, 3 Cal.4th
at p. 571.) And in Robertson, the trial court explained the jury unanimity
requirement, and the defendant‘s ― ‗length[y]‘ ‖ consultation with counsel ―over
the course of several days‖ allowed us to infer that counsel properly advised the
defendant of the nature of a penalty phase jury and the consequences of waiver.
(Robertson, supra, 48 Cal.3d at pp. 36–37 & fn. 5.)
       We have never upheld a penalty phase jury trial waiver on a record of
advisement as thin as the one here. The record does not show that Sivongxxay
waived his right to a jury trial on the penalty determination ― ‗ ― ‗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.) Because
Sivongxxay was unconstitutionally denied a jury trial at the penalty phase, the
penalty judgment cannot stand.

                                              21
       Finally, the penalty phase waiver has an additional infirmity: The waiver
colloquy suggested, contrary to section 190.4(b), that Sivongxxay had no separate
right to a jury trial at the penalty phase if he elected a bench trial at the guilt phase.
After briefly describing how a jury is selected and stating that the district attorney
has the burden to prove guilt beyond a reasonable doubt, the trial court said: ―In a
court trial, I would hear the evidence. I, alone, would make the decision on
whether that evidence was sufficient to prove your guilt beyond a reasonable
doubt. [¶] In the event I made such a finding, . . . we would then proceed to a
penalty phase . . . . [A]nd it would fall upon me to make the decision as to the
appropriate punishment, which could result in a death penalty sentence.‖ (Italics
added.) The italicized language conveyed that in the event that a bench trial
resulted in a finding of guilt, the prerogative to decide the appropriate punishment
would remain with the court.
       Yet section 190.4(b) makes clear that ―[i]f defendant was convicted by the
court sitting without a jury[,] the trier of fact at the penalty hearing shall be a jury
unless a jury is waived . . . .‖ It is not uncommon for capital defendants who opt
for a bench trial on guilt to have a jury trial on the penalty determination. (See,
e.g., Cunningham, supra, 61 Cal.4th at pp. 616–617; People v. Mai (2013) 57
Cal.4th 986, 993–994.) The trial court‘s advisement erroneously implied that the
jury trial waiver was an all-or-nothing decision; at the very least, it did not make
clear that Sivongxxay had the right to a jury trial on penalty even if he chose to
waive a jury trial on guilt. Today‘s opinion says ―[w]e do not believe that the
colloquy is reasonably susceptible to this interpretation.‖ (Maj. opn., ante, at
p. 48, fn. 19.) But what other reasonable interpretation is there? The court has
no answer, let alone an answer more plausible than Sivongxxay‘s straightforward
interpretation. As with the trial court‘s violation of section 190.4(a), the failure to
elicit a separate waiver as to the penalty determination as required by section

                                           22
190.4(b) resulted in a complete deprivation of a jury trial, warranting automatic
reversal.
                                         IV.
       I agree with the court‘s conclusion that Sivongxxay‘s guilt phase waiver
was valid, and I agree with the court‘s guidance on advisements that trial judges
should give when eliciting jury trial waivers in the future. (Maj. opn., ante, at
p. 17.) But I do not think we should rely on Sivongxxay‘s ―prior experience with
the criminal justice system‖ as evidence that he was familiar with the right to a
jury trial. (Id. at p. 14.) We have no record of what advisements he received
before entering the Oregon pleas, and the written waiver he signed in Washington
State merely said he understood he had ―the right to a speedy and public trial by an
impartial jury,‖ not that he understood what that right entailed. Nor is there any
indication that he discussed his prior waiver decisions with counsel. (Cf. U.S. v.
Shorty (9th Cir. 2013) 741 F.3d 961, 968; State v. Baker (Ariz.Ct.App. 2007) 170
P.3d 727, 730.)
       In sum, I join today‘s affirmance of Sivongxxay‘s convictions, but I would
reverse the special circumstance finding and the judgment of death.
                                                  LIU, J.




                                         23
      CONCURRING AND DISSENTING OPINION BY CUÉLLAR, J.

         A special circumstance allegation is the means by which the trier of fact
determines whether a first degree murder trial will continue to a penalty phase, at
which the convicted murderer‘s fate — death or life imprisonment without the
possibility of parole — will be decided. The federal Constitution guarantees a
defendant the right to have a jury decide the truth of the special circumstance
allegation. (See Ring v. Arizona (2002) 536 U.S. 584, 589.) California law
likewise mandates that the trial of the special circumstance allegation shall be by
jury, unless the right is waived separately and personally by the defendant and the
People. (Pen. Code, § 190.4, subd. (a); all subsequent statutory references are to
this code.) In this case, defendant was never advised of his separate right to have a
jury decide the truth of the special circumstance allegation. Nor did he ever waive
this right. Nonetheless, the trial court proceeded to resolve the special
circumstance in a bench trial and, after a penalty phase, to sentence defendant to
death.
         Despite these omissions, what the majority concludes is that defendant
knowingly and intelligently waived his right to have a jury decide the truth of the
special circumstance allegation, and the court‘s failure to elicit a ― ‗separate
waiver‘ ‖ of that right was harmless. (Maj. opn., ante, at p. 30.) Unlike the
majority, I do not believe we can meet our obligation to safeguard the right to a
jury trial while minimizing — let alone ignoring — the failure to obtain
defendant‘s waiver of his right to a jury trial on the special circumstance
allegation. (See Ring v. Arizona, supra, 536 U.S. at p. 612 (conc. opn. of Scalia,
J.) [―[O]ur people‘s traditional belief in the right of trial by jury is in perilous
decline. That decline is bound to be confirmed, and indeed accelerated, by the
repeated spectacle of a man‘s going to his death because a judge found that an
aggravating factor existed. We cannot preserve our veneration for the protection
of the jury in criminal cases if we render ourselves callous to the need for that
protection by regularly imposing the death penalty without it.‖].) Under the
federal Constitution and state law, the failure to obtain a jury waiver requires
reversal of the robbery-murder special-circumstance finding and the death
judgment. I concur in the judgment to the extent it affirms defendant‘s
convictions for murder, robbery, and attempted robbery, but otherwise respectfully
dissent.
                                            I.
       Crowded dockets, constrained budgets, and overwhelming caseloads for
public attorneys create undeniable pressure to speed criminal cases along. A jury
trial may be the hallmark of our criminal justice system — and the quintessential
event that continues to grab the attention of movie and television viewers — but it
is also the most burdensome and inefficient means of resolving a criminal
accusation. So it is no surprise that over 95 percent of felony cases are resolved
before trial. (Judicial Council of Cal., 2016 Court Statistics Rep., Statewide
Caseload Trends 2005-2006 Through 2014-2015 (2016) p. 47.)
       Even when cases go to trial, judges and attorneys are well aware that not all
trials are created equal. A bench trial offers considerable savings of time and
resources. Lawyers in a bench trial sidestep the need to spend time selecting a
jury, presenting opening statements, addressing legal issues at sidebar, crafting
jury instructions and limiting instructions, and waiting in suspense for the outcome

                                            2
of a jury‘s deliberation. A bench trial also obviates the need to worry about the
risk of a mistrial if the jury is divided or subject to improper influences. Indeed,
one study of courts in California and two other states found that the median length
of criminal jury trials was roughly three times that of criminal bench trials. (Nat.
Center for State Courts, On Trial: The Length of Civil and Criminal Trials (1988)
pp. 8-9.)
       This backdrop helps explain why the Legislature in 1977 erected –– and the
voters in 1978, although repealing the statute, retained –– an elaborate procedural
framework protecting a capital defendant‘s right to a jury trial at each stage of the
proceeding. In restoring the death penalty following its invalidation by this court
and the United States Supreme Court, the Legislature and the voters took special
care to ensure that a jury trial would be had at each phase of the death penalty trial
unless the defendant personally and with specificity waived it: ―If the defendant
was convicted by the court sitting without a jury, the trier of fact [on the truth of
each alleged special circumstance] shall be a jury unless a jury is waived by the
defendant and by the people.‖ (§ 190.4, subd. (a), italics added.) Likewise, ―[i]f
the defendant was convicted by a plea of guilty, the trier of fact [on the truth of
each alleged special circumstance] shall be a jury unless a jury is waived by the
defendant and by the people.‖ (Ibid., italics added.) And even if the defendant
was convicted of murder and any special circumstance found true in a bench trial,
―the trier of fact at the penalty hearing shall be a jury unless a jury is waived by
the defendant and the people . . . . If the defendant was convicted by a plea of
guilty, the trier of fact shall be a jury unless a jury is waived by the defendant and
the people.‖ (Id., subd. (b), italics added.) Thus, a capital defendant will have a
jury decide the truth of any special circumstance allegations and the appropriate
penalty, despite having waived a jury in prior proceedings, unless ―by the consent



                                           3
of both parties expressed in open court by the defendant and the defendant‘s
counsel‖ a jury is waived. (Cal. Const., art. I, § 16.)
       Nothing about this scheme indicates or even suggests a tether between the
right to have a jury decide the truth of a special circumstance allegation and a
defendant‘s right to a jury trial on guilt or innocence of the underlying offenses, or
any other right. To the contrary: Even if the defendant waived a jury at the guilt
phase (or pleaded guilty), the law requires a jury to decide the truth of the special
circumstance, unless the defendant waives that right. The separate nature of the
jury trial right articulated in section 190.4 places it outside ―the general rule‖ (maj.
opn., ante, at p. 21, fn. 5) on which the majority relies — i.e., that a jury waiver is
deemed to be consent ― ‗ ―to a trial of all issues in the case before the court sitting
without a jury.‖ ‘ ‖ (Id. at p. 21, quoting People v. Berutko (1969) 71 Cal.2d 84,
94 (Berutko).) In Berutko, we analyzed three statutes governing the right to a jury
trial for a prior conviction allegation. In stark contrast to section 190.4, not one of
these statutes created an independent right to a jury notwithstanding the
defendant‘s waiver of a jury with respect to the underlying substantive offense.1

1       Former section 969 1/2 (now section 969.5) then provided in pertinent part
that ― ‗the question whether or not he has suffered such previous conviction must
be tried by a jury impanelled for that purpose, unless a jury is waived, in which
case it may be tried by the court‘ ‖ (Berutko, supra, 71 Cal.2d at p. 94, quoting
former § 969 1/2, added by Stats. 1935, ch. 203, § 1, p. 862); former section 1025
then provided in pertinent part that ―the question whether or not he has suffered
such previous conviction must be tried by the jury which tries the issue upon the
plea of not guilty, or in case of a plea of guilty, by a jury impaneled for that
purpose, or by the court if a jury is waived‖ (Stats. 1951, ch. 1674, § 88, p. 3844);
and section 1158 provided, as it does today, that ―[w]henever the fact of a previous
conviction of another offense is charged in an accusatory pleading, and the
defendant is found guilty of the offense with which he is charged, the jury, or the
judge if a jury trial is waived, must unless the answer of the defendant admits such
previous conviction, find whether or not he has suffered such previous
conviction.‖
                                                           (Footnote continued on next page.)


                                           4
In rejecting Berutko‘s contention that his general jury waiver encompassed only
the substantive offenses and did not extend to the prior conviction allegation, we
concluded that ― ‗[t]he whole spirit and intent of these statutes appear to be that a
prior conviction charge is to be determined solely as one of the issues in the trial
for the new offense.‘ ‖ (Berutko, at p. 94.) Section 190.4, on the other hand, is
not premised on the idea that the truth of the special circumstance allegation or the
choice of penalty is merely one among the many issues in a ― ‗one trial‘ ‖ system.
(People v. Jarmon (1992) 2 Cal.App.4th 1345, 1354.) No matter which decision
maker a defendant chooses for the guilt phase, the trier of fact shall be a jury when
it comes to the special circumstance allegation or the penalty determination, unless
a jury is waived. (§ 190.4, subds. (a), (b).) Accordingly, a jury waiver directed at
the guilt phase of a capital trial does not suffice to waive jury trial for the special
circumstance or the penalty. (See generally People v. Redwine (1958) 166
Cal.App.2d 371, 376 [―waiver of the right of trial by jury should be strictly
construed in favor of the preservation of the right‖].)
        This is what we made clear in Memro, supra, 38 Cal.3d 658 as to the
special circumstance allegation. We held that section 190.4, subdivision (a)


(Footnote continued from previous page.)

        Although section 190.1, subdivision (a) does state that (except for the prior
murder special circumstance) ―[i]f the trier of fact finds the defendant guilty of
first degree murder, it shall at the same time determine the truth of all special
circumstances charged,‖ we have previously explained that a broad reading of this
provision ―would render the jury trial guarantee in section 190.4, subdivision (a)
meaningless in many special circumstance cases.‖ (People v. Memro (1985) 38
Cal.3d 658, 702 (Memro).) Indeed, section 190.1, subdivision (a) plainly has no
application any time the trier of fact at the guilt phase and the special circumstance
phase are different, since it would be impossible for ―the trier of fact‖ in such a
situation to determine guilt of first degree murder and the truth of any special
circumstances ―at the same time.‖ (See Memro, at p. 701.)



                                            5
requires ―that an accused whose special circumstance allegations are to be tried by
a court must make a separate, personal waiver of the right to a jury trial.‖
(Memro, at p. 704, italics added.) We distinguished Berutko‘s general rule and the
prior conviction statutes on which it relied, and for good reason. The prior
conviction statutes reflected an entirely different ― ‗spirit and intent‘ ‖ than what
could be gleaned from the ―separate jury waiver . . . necessary for special
circumstance allegations in death penalty legislation.‖ (Memro, at p. 702, fn. 52.)
Under the death penalty scheme, a separate waiver requires a showing that ―the
defendant is aware that the waiver applies to each of these aspects of trial‖ (People
v. Diaz (1992) 3 Cal.4th 495, 565 (Diaz)) — i.e., guilt and special circumstances
— as well as proof that the ―waiver of the jury-trial right on a special circumstance
actually cover[s] the special circumstance.‖ (People v. Wrest (1992) 3 Cal.4th
1088, 1105.)
       No such waiver occurred here. (Maj. opn., ante, at pp. 29-30.) So it is
quite puzzling that even as the majority concedes the lack of a waiver, it
nonetheless concludes defendant knowingly and intelligently waived his federal
constitutional right to have a jury decide the truth of the special circumstance
allegation. What makes a jury waiver knowing and intelligent is that it was ―made
with full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it.‖ (Moran v. Burbine (1986) 475 U.S.
412, 421; accord, People v. Weaver (2012) 53 Cal.4th 1056, 1071-1072 [applying
this standard to a jury waiver].) In this case, though, nothing made defendant
aware that he had the right to a jury trial on the truth of the special circumstance
allegation. Indeed, defendant was given the misimpression that his capital trial
would consist only of an initial guilt phase, during which the court ―would make
the decision whether that evidence was sufficient to prove your guilt beyond a
reasonable doubt,‖ and ―[t]hen, and only then, would we get to a penalty phase.‖

                                           6
He was never informed that if the prosecutor established his guilt beyond a
reasonable doubt, the trier of fact would then, and only then, consider the truth of
the special circumstance allegation, nor did anyone ever refer to a ―special
circumstance‖ or other type of ―allegation‖ whose truth would make him eligible
for the death penalty. And of course, defendant was never informed that his
waiver encompassed the right to a jury trial on such an allegation.
       Recognizing the colloquy‘s inadequacies, the majority deploys vague
references invoking ―other events before and after the waiver was entered‖ (maj.
opn., ante, at p. 24, fn. 7) as evidence of what it repeatedly — and inaccurately —
calls a ―comprehensive‖ jury waiver. (Id. at pp. 21, 23, fn. 7, 26.) The record‘s
deficiencies are not so easily evaded. Defendant‘s out-of-state convictions for
robbery and unauthorized use of a vehicle provide no basis for inferring that he
understood his trifurcated right to a jury under California‘s death penalty scheme
in general or his right to have a jury decide the truth of the special circumstance in
particular. (See People v. Brown (Ill. 1996) 661 N.E.2d 287, 301 [―The record
reveals . . . that the defendant had no previous experience which involved a death
penalty hearing and, thus, there is no basis to presume that the defendant
understood that he had the right to a jury for death sentencing and, in particular,
that he had this right even if he chose a bench trial‖].)
       The majority also purports to rely on silence –– specifically, the
defendant‘s silence in response to the trial court‘s assertion that ―[w]e‘ll show a
jury waiver on all issues, confirm the matter for January the 11th.‖ (See maj. opn.,
ante, at p. 14 & fn. 2.) Given the trial court‘s erroneous description of the ―issues‖
to be tried as consisting solely of a guilt phase and a penalty phase, however, it is
difficult to comprehend how the trial court‘s summary could somehow have
expanded the preceding waiver to encompass the special circumstance allegation.
In any event, silence here is the problem, not the solution: It is well-established

                                           7
under the California Constitution that neither silence nor acquiescence implies a
waiver of the right to a jury trial. The defendant must instead expressly waive the
right. (People v. Ernst (1994) 8 Cal.4th 441, 445.) Accordingly, cases from
jurisdictions allowing counsel to waive jury on the defendant‘s behalf shed no
light on the issue before us. (See U.S. v. Boynes (4th Cir. 2008) 515 F.3d 284, 287
[defendant ―insisted‖ on waiving jury and explained to counsel why he ―would
have a better chance‖ with a judge]; U.S. v. Page (5th Cir. 1981) 661 F.2d 1080,
1083; [defendant conferred with counsel ―at length‖ and made a ―considered,
tactical decision that a bench trial would be to [his] advantage‖]; State v. Baxter
(Mo. 2006) 204 S.W.3d 650, 654 [where counsel waived jury, and the prosecutor
announced ―in open court that there was an agreement that the charges would be
reduced in exchange for a waiver,‖ ―[t]here is no reason to require that the judge
question the defendant on the record . . . .‖].)
       The only exchange involving defendant — and the one on which the
majority is therefore forced to place principal reliance — is defendant‘s assent to
the trial court‘s final question at the pretrial waiver hearing: ―Do you give up your
right to a jury trial and agree that this Court, alone, will make those decisions
. . . ?‖ (Quoted by maj. opn., ante, at p. 24.) But where no one — not the trial
court, not the prosecutor, and not defense counsel — ever mentioned that a trial
would also occur on the truth of the special circumstance and that he was being
asked to waive his right to a jury trial at such a proceeding, it is difficult to credit
the majority‘s contention that the ―advisements the trial court provided to
defendant before taking his waiver, together with the other surrounding
circumstances, confirm that defendant knowingly and intelligently relinquished his
right to a jury trial for this allegation.‖ (Id. at p. 23.) In short, the majority fails to
identify anything in the record supporting its conclusion that defendant was aware
of the nature of the right he was abandoning or the consequences of abandoning it.

                                             8
       Those consequences depend in part on a given jurisdiction‘s law. The
majority‘s approach, for example, seems to track Ohio’s death penalty scheme,
which provides for an all-or-none waiver of what the statute treats as a unitary jury
trial right: The sentencer will be ―the trial jury and the trial judge, if the offender
was tried by jury,‖ but otherwise must be ―the panel of three judges that tried the
offender upon the offender‘s waiver of the right to trial by jury.‖ (Ohio Rev. Code
Ann. § 2929.03(C)(2)(b).) Thus, under Ohio law, the ―[t]he waiver of the right to
trial by jury in a capital case applies to both the guilt phase and the penalty phase
of the trial.‖ (State v. Foust (Ohio 2006) 823 N.E.2d 836, 852.)
       But Ohio law is materially different from California‘s, which maintains a
jury trial as the default even if the defendant has waived jury at a previous phase
of the trial. (See People v. Hovarter (2008) 44 Cal.4th 983, 1027.) So Foust
sheds no light on what constitutes a knowing and intelligent waiver in the context
of the California death penalty scheme. If we are going to look beyond California
for insight, we should instead train attention on statutory schemes resembling our
own –– such as those in Illinois and Pennsylvania. In People v. Brown, supra, 661
N.E.2d 287 (Brown) and Commonwealth v. O’Donnell (Pa. 1999) 740 A.2d 198
(O’Donnell), the Supreme Courts of Illinois and Pennsylvania each held that a jury
waiver at the initial phase of a death penalty trial did not constitute a knowing and
intelligent waiver of a jury at the penalty phase. (Brown, at pp. 298-299;
O’Donnell, at pp. 212-214.) Like California — and unlike Ohio — Illinois and
Pennsylvania provide for a jury trial at the penalty phase even if the defendant was
convicted at a bench trial. (See 720 Ill. Comp. Stat. 5/9-1(d) [―The proceeding
shall be conducted: [¶] . . . [¶] (2) before a jury impanelled for the purpose of the
proceeding if: [¶] A. the defendant was convicted upon a plea of guilty; or [¶] B.
the defendant was convicted after a trial before the court sitting without a jury
. . . .‖]; 42 Pa. Cons. Stat. § 9711(b) [―If the defendant has waived a jury or

                                           9
pleaded guilty, the sentencing proceeding shall be conducted before a jury
impaneled for that purpose unless waived by the defendant with the consent of the
[prosecution]‖].) Both state supreme courts construed their statutory schemes to
require a jury trial at the penalty phase unless the defendant specifically waived
that right. (Brown, at p. 298 [―The statute further provides that the death
sentencing proceeding may be conducted before the trial judge alone only if the
defendant ‗waives a jury for the separate proceeding‘ ‖]; O’Donnell, at p. 211 [the
statute ―clearly indicates that if the defendant has waived a jury trial in the guilt
phase, as Appellant did here, the defendant is still entitled to have a jury determine
his sentence unless he specifically waives that right without objection by the
Commonwealth‖].) Although neither court then believed that the defendant had a
federal constitutional right to a jury trial at the penalty phase (see Spaziano v.
Florida (1984) 468 U.S. 447, 464-465, overruled by Hurst v. Florida (2016) ___
U.S. ___, ___ [136 S.Ct. 616, 623]), they nonetheless imposed a requirement that
the jury waiver be knowing, intelligent, and voluntary. (Brown, at p. 298;
O’Donnell, at p. 212.)
       These state supreme courts held that a jury waiver made without specifying
what was being waived was insufficient. In the Illinois case, the defendant was
advised –– and indicated he understood –– that he would lose his ― ‗constitutional
right to a jury trial in this case, and this case will then be heard and decided by
this court without a jury[].‘ ‖ (Brown, supra, 661 N.E.2d at p. 297.) In finding the
waiver was neither knowing nor intelligent as to the penalty phase, the Supreme
Court of Illinois stated that it was ―incumbent upon the trial judge to admonish the
defendant in order to clarify the scope of his intended jury waiver,‖ and that ―at a
minimum the trial judge should have advised the defendant of his right to a jury
for sentencing.‖ (Id. at p. 299.) Similarly, the Supreme Court of Pennsylvania
found an inadequate waiver when the record failed to show that the defendant

                                           10
understood she ―ha[d] the right to be sentenced by a penalty-phase jury‖ and was
―devoid of any inquiry indicating that [she] had sufficient knowledge of what, in
fact, she was waiving.‖ (O’Donnell, supra, 740 A.2d at p. 213; accord, Taylor v.
Horn (3d Cir. 2007) 504 F.3d 416, 449 [―we cannot presume, based on a silent
record, that he knowingly and voluntarily waived his state law right to a penalty
phase jury‖].)
       Here, of course, defendant had a federal constitutional right to require that a
jury decide the truth of the special circumstance. (People v. Weaver, supra, 53
Cal.4th at p. 1074; see Ring v. Arizona, supra, 536 U.S. at p. 589.) So the failure
to obtain a knowing and intelligent jury waiver — or any waiver at all — with
respect to the special circumstance was federal constitutional error. But Brown
and O’Donnell are otherwise similar to this case in all important respects: The
trial court record failed to show that defendant understood the proceedings would
require a separate phase, during which his eligibility for the death penalty would
be determined; that he was aware he had a right to a jury at that phase of the trial;
or that he was aware he was waiving jury trial as to that part of the proceedings.
Indeed, the existence of the special circumstance was never mentioned. That
makes for quite a contrast with Diaz –– on which the majority misplaces reliance
— where the defendant (who was charged with 12 multiple-murder special
circumstances) acknowledged that his waiver ―applied to ‗both phases . . . of the
special circumstances case‘ ‖ (Diaz, supra, 3 Cal.4th at p. 564) and stated that ―he
had discussed the matter ‗quite thoroughly‘ with his counsel‖ (id. at p. 565).
       It should be crystal clear that no decision by this court or the high court has
ever found a knowing and intelligent waiver of the trifurcated right to a jury
without proof that the defendant was aware of his right to a jury trial at each of the
three stages. We distort the meaning of the words ―knowing‖ and ―intelligent‖
when we find such a waiver even where the defendant fails to grasp that he has a

                                          11
right to have a jury decide the truth of the separate allegation that will render him
eligible for the death penalty.
       The gist of defendant‘s claim is that the record fails to show he was aware
of his right to a jury trial on this phase of the trial or that he waived it. State v.
Williams (Or.Ct.App. 2005) 104 P.3d 1151 presents an analogous situation.
Williams similarly was unaware that he had the right to a jury finding of the facts
that could trigger an enhanced sentence; his trial had predated Blakely v.
Washington (2004) 542 U.S. 296, which held that a criminal defendant has a
federal constitutional right to have a jury find the facts that could subject him to a
sentence greater than the statutory maximum. The Williams court reasoned that no
waiver could be implied in those circumstances unless the record showed that the
defendant was aware both of ― ‗the right to have a jury determine the aggravating
factors‘ ‖ and that ― ‗he was waiving that right.‘ ‖ (Williams, at p. 1152; accord,
People v. French (2008) 43 Cal.4th 36, 48 [because the defendant entered his plea
pre-Blakely, his jury waiver on the substantive offense ―did not encompass his
right to a jury trial on any aggravating circumstances‖]; State v. Schofield (Me.
2005) 895 A.2d 927, 930-931.) Unlike the majority, I see no meaningful
distinction in the fact that Williams was unaware of his jury trial right because of
an intervening change in the law, while defendant was unaware of his jury trial
right because it was never mentioned anywhere in the colloquy. (Cf. maj. opn.,
ante, at p. 22, fn. 7.) In neither situation does the record show that ―the defendant
‗knows what he is doing and his choice is made with eyes open.‘ ‖ (Iowa v. Tovar
(2004) 541 U.S. 77, 88.)
       From all these reasons I draw an unremarkable conclusion. A defendant
does not knowingly and intelligently waive his federal constitutional right to have
a jury determine the truth of a special circumstance allegation where there is
nothing in the record to indicate that the defendant was aware of the right to have a

                                            12
jury determine the truth of the special circumstance or that the defendant intended
to waive that right.
                                          II.
       Even if considered solely as an error under state law, though, the trial
court‘s decision to conduct a bench trial on the special circumstance allegation
requires reversal of the special circumstance and the death judgment. As the
majority readily concedes (maj. opn., ante, at p. 28), there was no ―separate,
personal waiver‖ of defendant‘s right to have a jury determine the truth of the
special circumstance allegation as required by section 190.4, subdivision (a).
(Memro, supra, 38 Cal.3d at p. 704.)
       How should we measure the effect of that error? We typically interpret the
miscarriage of justice provision of our state Constitution (Cal. Const., art. VI,
§ 13) to require a party challenging the judgment to demonstrate that ―it is
reasonably probable that a result more favorable to the appealing party would have
been reached in the absence of the error.‖ (People v. Watson (1956) 46 Cal.2d
818, 836.) But not always. Certain errors — such as the erroneous denial of a
jury trial — can constitute a miscarriage of justice and thus require reversal of the
judgment ―without inquiry into the strength of the evidence in a particular case.‖
(People v. Blackburn (2015) 61 Cal.4th 1113, 1133 (Blackburn).) Rightly so,
because such errors deny ― ‗an orderly legal procedure, in which the substantial
rights belonging to defendants shall be respected. For example, if a court should
undertake to deny 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.‘ ‖ (Id. at p. 1139, quoting People v. O’Bryan (1913) 165
Cal. 55, 65-66.)



                                          13
       We recently examined the effect of the failure to obtain a valid jury waiver
in the context of a trial to extend the civil commitment of a mentally disordered
offender (MDO) (Blackburn, supra, 61 Cal.4th 1113) and a person originally
committed after pleading not guilty by reason of insanity (NGI) to a criminal
offense (People v. Tran (2015) 61 Cal.4th 1160). The MDO and NGI
commitment statutes, like section 190.4, subdivision (a), provide that ―[t]he trial
shall be by jury unless waived by both the person and the [People].‖ (§§ 1026.5,
subd. (b)(4), 2972, subd. (a), italics added.) In neither case, however, had the trial
court advised the committee of his right to a jury trial or elicited a personal jury
waiver from the committee. (Blackburn, at pp. 1123-1125; Tran, at pp. 1166-
1168.) We held that the failure to obtain the statutorily required jury trial waiver
qualified as a structural defect in the proceedings that could not be cured by resort
to harmless error analysis. (Blackburn, at pp. 1133-1136; Tran, at pp. 1169-1170.)
       In words that have special force here, we declared that ―[i]f the case now
before us were a criminal matter involving the invalid waiver of a state or federal
constitutional jury trial right, there could be no doubt that the error would
constitute a ‗miscarriage of justice‘ requiring reversal without regard to the
strength of the evidence.‖ (Blackburn, supra, 61 Cal.4th 1133; see People v.
Ernst, supra, 8 Cal.4th at p. 443 (Ernst) [―a judgment in a criminal case resulting
from a court trial must be reversed if the defendant did not expressly waive the
right to a trial by jury‖].) We then reasoned that ―[t]he failure to obtain a valid
jury trial waiver‖ — regardless of whether the source of the jury trial right was
constitutional or merely statutory — ―defies ordinary harmless error analysis.‖
(Blackburn, at p. 1134.) Indeed, ―[t]o speculate about whether a defendant would
have chosen a jury trial if he or she had been in a position to make a personal
choice would pose insurmountable difficulties . . . . Accordingly, we treat a trial
court‘s failure to obtain a required personal jury trial waiver as tantamount to the

                                          14
denial of a jury trial, and as such, it constitutes a ‗miscarriage of justice‘ under
California Constitution, article VI, section 13.‖ (Ibid.; see People v. Holmes
(1960) 54 Cal.2d 442, 444.)
       Our sister courts are in accord. (Fortune v. U.S. (D.C. 2009) 59 A.3d 949,
956-957 [―the importance of the right to a jury trial, the explicit statutory
command in this jurisdiction that trial shall be by jury absent an express waiver by
the defendant in open court, and the relative inability of a reviewing court to
engage in review of whether the error affected the defendant's rights, all counsel in
favor of holding that the failure to make the prescribed determination of waiver is
a structural error‖]; State v. Williams, supra, 104 P.3d at p. 1153 [―We cannot
assume that defendant, by waiving a jury trial on the burglary charge, intended to
waive the right to have a jury determine the facts required for imposition of an
enhanced dangerous offender sentence‖].)
       Despite widespread agreement that harmless error analysis does not apply
— chiefly because it is impossible to reconstruct what choice a defendant would
have made when he was never actually presented with the choice — the majority
nonetheless contends that the trial court‘s failure to obtain a jury waiver covering
this critical stage of a death penalty proceeding is always harmless, unless the
defendant can demonstrate a reasonable probability he would not have waived jury
trial if actually offered the opportunity to do so. (Maj. opn., ante, at pp. 44.) To
subject the failure to elicit a defendant‘s waiver of his jury trial right to
retrospective speculation of what the defendant would have decided is to dilute the
importance of a right with abiding structural significance. So it is not surprising
that the majority is unable to cite even a single case holding that this harmless
error analysis applies when, as here, a defendant has properly preserved his claim
that he never waived his right to a jury trial. The majority relies instead on cases



                                           15
— easily distinguishable from this one — where the defendant waived a jury, but
claimed his jury waiver was a product of a misadvisement.
       In U.S. v. Williams (7th Cir. 2009) 559 F.3d 607, for example, the
defendant knew he had a right to a jury trial and twice waived it in open court.
The Seventh Circuit determined that the defendant had not preserved his claim that
the trial court erred in failing to secure a written jury waiver and to mention
certain advisements. (Id. at pp. 607-609.) Only then did the court conclude that
the defendant had failed to discharge his burden under plain error review to
establish prejudice. (Id. at p. 613.) In State v. Keller (Iowa 2009) 760 N.W.2d
451, the defendant executed a written jury waiver, but any oral colloquy went
unreported. The court concluded that counsel‘s failure to ensure that the
advisements were made on the record was not prejudicially ineffective. (Id. at pp.
452-453; accord, People v. Maxwell (Ill. 1992) 592 N.E.2d 960, 974 [the
defendant executed a written jury waiver and waived jury trial in open court;
counsel‘s erroneous view about the admissibility of other-crimes evidence was
―irrelevant‖ to her advice to the defendant about the jury waiver; and even if
counsel were ineffective, ―[i]t is clear in this case that defense counsel would have
offered the same recommendation‖ regardless of the evidence‘s admissibility];
Commonwealth v. Houck (Pa. 2008) 948 A.2d 780, 788 [the defendant executed a
written jury waiver and waived jury trial in open court; he was not entitled to relief
on his claim of misadvisement because he failed ―to demonstrate that his . . .
understanding of the length of the potential sentence was a material factor in
making the decision to waive a jury trial‖]; Commonwealth v. Mallory (Pa. 2008)
941 A.2d 686, 697 [the defendants ―explicitly waived their rights to a jury, in
writing, on the record‖ but claimed their attorneys were ineffective in failing to
arrange an oral colloquy].)



                                          16
       Notice how in each of these cases, the defendant actually waived jury trial.
The question was simply whether some deficiency in the advisement might have
affected a decision the defendant had already made. Here, though, defendant
never waived his right to a jury trial on the special circumstance allegation.
Without a waiver, ―it is impossible for [a defendant] to establish what he would
have done at the time,‖ and thus one ―can only speculate now about what he would
have done then.‖ (State v. Little (Minn. 2014) 851 N.W.2d 878, 885, fn. 3; accord,
State v. Hauk (Wis.Ct.App. 2002) 652 N.W.2d 393, 403-404 [distinguishing
between the situation ―when a defendant has waived the right to a jury but the
colloquy was deficient‖ and the situation ― ‗where a defendant has not made a
waiver that is personal and otherwise valid in terms of statutory and case law‘ ‖].)
In the absence of a waiver, ―[t]here is no object, so to speak, upon which harmless-
error scrutiny can operate.‖ (Sullivan v. Louisiana (1993) 508 U.S. 275, 280.)2
       In part because defendant actually waived jury trial in all these situations,
the analysis in these misadvisement cases did not demonstrate that harmless error
analysis was possible — instead of merely conveying that the applicable doctrine

2       Notice how precisely the opposite is true of the failure to readvise an
unrepresented defendant, who has already knowingly and voluntarily waived
counsel, of the right to counsel at the time of arraignment under section 987,
subdivision (a). A reviewing court can easily determine whether the failure to
readvise a defendant about the right to counsel and to obtain a renewed waiver of
that right was prejudicial where (1) a magistrate has already advised the defendant
about the right to counsel and cautioned the defendant about the pitfalls of self-
representation at the preliminary hearing as well as trial, and (2) the defendant
expressed an understanding of the risks and a desire nonetheless to proceed
without the assistance of counsel throughout the proceedings. (People v. Crayton
(2002) 28 Cal.4th 346, 364-366.) That‘s a far cry from what occurred here,
though. Defendant was never advised of — and never waived — his right to have
a jury determine the truth of the special circumstance allegation in the first place.
Nor does he claim that he ought to have been readvised of his jury trial right
before the trial court began the special circumstance phase.



                                         17
for examining the claim (whether plain error or ineffective assistance of counsel)
required it in the situations before the court. Indeed, in U.S. v. Williams, supra,
559 F.3d 607, which reviewed a challenge to the jury waiver only for plain error,
the court readily admitted there was ―no way to assess [the defendant‘s] mental
state on this record‖ and that ―the burden of production and persuasion [for plain
error] dictates the outcome.‖ (Id. at p. 613; cf. State v. Little, supra, 851 N.W.2d
at pp. 883-884 [finding plain error in the trial court‘s failure to obtain a personal
jury waiver after the charging document was amended, rendering it unnecessary to
decide whether the error was structural].) In Commonwealth v. Mallory, supra,
941 A.2d at page 698, the court explained that ―[w]hen a presumptively-valid
waiver is collaterally attacked under the guise of ineffectiveness of counsel, it
must be analyzed like any other ineffectiveness claim,‖ including an assessment of
whether the defendant suffered prejudice from counsel‘s deficient performance.
(See Strickland v. Washington (1984) 466 U.S. 668, 694; cf. In re Alvernaz (1992)
2 Cal.4th 924, 937 [requiring prejudice for an ineffective assistance claim arising
from misadvisement relating to a plea bargain]; Taylor v. Horn, supra, 504 F.3d at
p. 450 [requiring prejudice for an ineffective assistance claim arising from a
failure to waive jury at a penalty trial].)3
       In contrast, here the trial court failed entirely ―to obtain a valid jury
waiver.‖ (Blackburn, supra, 61 Cal.4th at p. 1134.) Never before have we
examined whether the defendant would have waived the right to a jury had he
actually been offered the opportunity to choose. In Ernst, for example, the

3      The high court granted certiorari last fall to decide whether a defendant
asserting ineffective assistance of counsel that results in structural error must
establish prejudice from the ineffectiveness. (Commonwealth v. Weaver (Mass.
2016) 54 N.E.3d 495, cert. granted sub nom. Weaver v. Massachusetts (2016) ___
U.S. ___ [137 S.Ct. 809].)



                                           18
defendant was present in court when his attorney announced ― ‗we‘re prepared to
waive a jury as to both phases of the trial [guilt and sanity] at this time, and my
client is prepared to go on the record to that effect‘ ‖; when his attorney
subsequently stated that ― ‗We are prepared to waive jury as to both issues‘ ‖; and
when the trial court declared ― ‗Jury waived by both sides. It‘s been done. [¶] Is
this going as a nonjury case?‘ ‖ and ―[b]oth sides responded affirmatively.‖
(Ernst, supra, 8 Cal.4th at p. 444.) We unanimously rejected the People‘s
invitation to examine the totality of the circumstances and ―find, under that test,
that defendant validly waived his right to a jury trial despite his failure to do so
expressly.‖ (Id. at p. 448.) Similarly, in People v. Collins (2001) 26 Cal.4th 297,
where we found a jury waiver involuntary because the trial court had advised the
defendant he would receive ― ‗some benefit‘ ‖ by forgoing a jury trial, we did not
inquire whether the defendant would have waived jury trial in the absence of the
unspecified benefit. (Id. at p. 302, italics omitted.) In both instances, the failure to
obtain a proper jury waiver was structural error that defied harmless error analysis.
(Ernst, at pp. 448-449; Collins, at pp. 310-313.) The same is true here.
       Practical considerations also distinguish the misadvisement cases from the
situation now before us. In the misadvisement context, we assign the burden to
demonstrate prejudice to the defendant because of the ease by which a defendant
might assert, after the fact, that virtually any kind of misadvisement induced the
defendant‘s jury waiver (or plea), and the difficulty in refuting such a claim. (See
In re Alvernaz, supra, 2 Cal.4th at p. 938; accord, Commonwealth v. Houck, supra,
948 A.2d at pp. 788-789.) But the issue here is more subtle: not whether
defendant would have made the same choice had he been properly advised, but
what choice he might have made had he actually been offered the opportunity to
choose. Just as we do not inquire (after the fact) whether a defendant would have
entered a plea to an offense for which the defendant was never asked to enter a

                                          19
plea, we do not inquire (after the fact) whether a defendant would have waived
jury trial when the defendant was never presented with the opportunity to waive it.
       The majority finds it significant — in fact, determinative — that defendant
entered some kind of jury waiver, and seeks to relegate the remainder of
defendant‘s claim to a dispute about the adequacy of the advisement he received.
(Maj. opn., ante, at p. 40.) But the defect here goes well beyond merely an error
in the advisement. This is not a situation like Berutko, where the defendant was
unaware that his jury waiver as a matter of law included a waiver of jury as to the
prior conviction allegation. The jury waiver here did not, as a matter of law,
include a waiver of his right to a jury trial as to the special circumstance. Under
California law, the right to a jury trial for the special circumstance is divisible
from the other jury trial rights — and unless there is ―a ‗separate, personal‘ waiver
of the right to a jury for a special circumstance allegation, above and beyond the
standard guilt phase and penalty phase waiver‖ (maj. opn., ante, at p. 28), the
defendant is entitled to a jury trial on the special circumstance allegation.
(§ 190.4, subd. (a).) Thus, despite a waiver of jury at the guilt phase, ―the trial
court must presume the defendant wants a jury‖ to try the subsequent phases of a
capital trial. (People v. Hovarter, supra, 44 Cal.4th at p. 1026, italics added.) The
majority‘s harmless error test, which places the burden on a defendant who has
waived a jury at the guilt phase to show that he would not have waived jury trial at
a subsequent phase, improperly nullifies the effect of that presumption.
       The majority also contends that nothing in the language, structure, or
context of section 190.4, subdivision (a) would support the conclusion that the
failure to obtain a separate, personal waiver constitutes structural error. (Maj.
opn., ante, at pp. 32.) I disagree. In four different sentences, section 190.4
emphatically declares that the trier of fact ―shall be a jury, unless a jury is
waived,‖ notwithstanding a waiver of jury (or entry of a plea) at a prior phase.

                                           20
Moreover, the language guaranteeing a jury trial for the special circumstance
allegation tracks almost verbatim the language guaranteeing a jury trial for the
penalty determination. (Compare § 190.4, subd. (a) with id., subd. (b).) There is
thus no indication that the Legislature in 1977, or the voters in 1978, wanted to
extend a lesser form of protection to the jury trial right for special circumstances
than to the jury trial right for the penalty determination. Surely the majority does
not mean to suggest that the failure to obtain a capital defendant‘s jury waiver for
the penalty trial would necessarily be harmless under section 190.4, unless the
defendant could demonstrate that he would not have waived jury trial had he been
offered the opportunity.
       The language used in section 190.4 also differs substantially from those
statutory provisions supporting the general rule ― ‗that where a defendant waives a
jury trial he is deemed to have consented to a trial of all of the issues in the case
sitting before the court sitting without a jury.‘ ‖ (Maj. opn., ante, at p. 21; cf.
People v. Vera (1997) 15 Cal.4th 269, 277 [applying the general rule ―[w]here the
whole cause — substantive offenses and sentencing allegations — is tried in a
unitary proceeding . . . .‖ (italics added)].) By creating a completely different
structure for the death penalty law — one much more protective of a defendant‘s
right to a jury trial — the Legislature and the voters signaled that a defendant‘s
right to a jury trial for the special circumstance and penalty phases merited more
respect than a defendant‘s right to a jury trial on a mere sentencing allegation or
enhancement. A rule rendering the failure to elicit a separate, personal jury waiver
invariably harmless on appeal would plainly undermine the statute‘s purpose.
       What section 190.4 does is set an exacting standard for the waiver of a jury
at each step of a death penalty proceeding –– and for good reason. Protecting the
constitutional right to a jury trial in a death penalty proceeding is the responsibility
of this court. So is ensuring that statutory protections for that right enacted by the

                                           21
Legislature and the voters are effective, and enforced. As the majority falls short
in this task, I respectfully dissent from the judgment affirming the special
circumstance finding and the death judgment.
                                                  CUÉLLAR, J.




                                         22
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Sivongxxay
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S078895
Date Filed: June 19, 2017
__________________________________________________________________________________

Court: Superior
County: Fresno
Judge: Gene M. Gomes

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Douglas Ward,
Deputy State Public Defender, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief
Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Sean M.
McCoy, Ryan B. McCarroll and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Douglas Ward
Deputy State Public Defender
P.M.B. #199, 350 Bay Street
San Francisco, CA 94133
(415) 494-9252

Lewis A. Martinez
Deputy Attorney General
2550 Mariposa Mall, Room 5090
Fresno, CA 93721
(559) 477-1677




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