Opinion
A157778
09-27-2021
THE PEOPLE, Plaintiff and Respondent, v. BIRZHAN BAURZHANOVICH AMIROV, Defendant and Appellant.
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 18NF014434A
STREETER, ACTING P. J.
Following a bench trial, a superior court judge found Birzhan Baurzhanovich Amirov guilty of making criminal threats, a felony (Pen. Code, § 422, subd. (a)), and unlawfully carrying a firearm in a vehicle, a misdemeanor (§ 25850, subd. (a)). The judge also found true a sentencing enhancement allegation that Amirov was armed with a deadly weapon during the commission of the offenses (§§ 1203, subd. (e)(1); 12022, subd. (a)(1)).
All further statutory references are to the Penal Code.
Amirov now appeals his conviction, arguing that, in taking his jury waiver in this case, the court failed to take steps to ensure the waiver was knowing, intelligent and voluntary. He also appeals a protective order entered under section 136.2 as a condition of his sentence barring him from having any contact with the victim for three years. Although the Attorney General concedes that section 136.2 does not provide authority for the protective order, we need not reach that issue because the judgment of conviction must be reversed. We agree with Amirov that the jury waiver taken in this case was invalid.
I.
Prior to trial, defense counsel expressed a doubt as to Amirov's competency to stand trial. Amirov was subsequently examined by a psychiatrist, who found him competent to be tried. At a pretrial conference, counsel for Amirov indicated that his client intended to waive his right to jury trial. The exchange between the court and counsel was as follows:
“THE COURT: What is your pleasure in this matter?
“[DEFENSE COUNSEL]: It is going to be a court trial confirmation.
“THE COURT: All right. This is the People v. Amirov. Mr. Amirov is now present in custody. The matter is here for trial.
“[DEFENSE COUNSEL]: As I indicated to Judge Finigan, my client is requesting a court trial, Your Honor, and we're confirming.
“THE COURT: All right. So the matter is confirming for trial. You're ordered to the department of the Presiding Judge at 2:00 p.m. Defendant is ordered present at that time. And he's going to waive jury trial at that time?
“[DEFENSE COUNSEL]: Yes, Your Honor.”
The case was called a second time that afternoon, but Amirov was not present. In his absence, Amirov's counsel again indicated to the court that his client would be requesting a court trial. The exchange was as follows:
“THE COURT: Is [Amirov] going to waive jury? Because that's
“[DEFENSE COUNSEL]: Yes, he is.
“THE COURT: -that's going to determine where everything goes unless-is he going to change his mind
“[DEFENSE COUNSEL]: No.
“THE COURT: -or do you know if he's going to do it?
“[DEFENSE COUNSEL]: No, he's not going to change his mind.
“THE COURT: Okay. So then, what I'm going to do then is put this over until tomorrow morning at 9:00 a.m. in front of Judge Garratt for court trial.”
Amirov appeared for trial the next day and, on the record, waived his right to a jury. The entirety of the exchange in which Amirov's personal, on the record waiver was taken is as follows:
“THE COURT: So, Mr. Amirov, you have the right to have a jury trial. And my understanding is you're waiving that right and wanting a court trial in this matter?
“[MR. AMIROV]: Yes.
“THE COURT: And so this is a court trial.”
The court then asked Amirov's defense counsel, “[Do] you concur in his waiver of jury trial?” Counsel replied, “I do, Your Honor.”
A bench trial ensued. We need not summarize in any detail the evidence at trial. Stated generally, the evidence showed that Amirov hailed a ride with a Lyft driver; began talking to himself during the ride, spitting in the car and otherwise acting strangely; and when the driver objected to the spitting, Amirov threatened the driver's life multiple times. At that point, the driver, suspecting Amirov had a gun, stopped and brought the situation to the attention of a police officer he happened to see nearby. When the officer arrested Amirov, the officer discovered he was carrying a loaded 9mm pistol.
The court found Amirov guilty as charged, denied his request for probation, and sentenced him to an aggregate term of two years four months in state prison. It also imposed “a full no contact order with the victim.” On the written protective order, printed on Judicial Council form CR 161 (“Criminal Protective Order-Other Than Domestic Violence”), the court checked the following box as authority for its order: “Order Under Penal Code, § 136.2.” By its terms, the protective order lasts for three years.
Amirov filed a timely notice of appeal.
II.
A criminal defendant has the constitutional right to a jury trial. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16; People v. Sivongxxay (2017) 3 Cal.5th 151, 166 (Sivongxxay).) The defendant may waive his constitutional right to a jury trial, provided the waiver is “ ‘knowing and intelligent, that is, “ ‘ “made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it, ”' ” as well as voluntary “ ‘ “in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.”' ”' [Citations.] ‘[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.' ” (Sivongxxay, at p. 166.) Our Supreme Court has “persistently declined to mandate any specific admonitions describing aspects of the jury trial right.” (People v. Daniels (2017) 3 Cal.5th 961, 992 (lead opn. of Cuéllar, J.) (Daniels); Sivongxxay, at p. 167 [“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”].)
The substantive standards for determining whether a defendant is making a valid waiver of the right to a jury trial are the same under the federal and California Constitutions. (See People v. Collins (2001) 26 Cal.4th 297, 304-305.) That is, the trial court may not accept the waiver unless it is (1) 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' ”' ” and (2) voluntary, “ ‘ “ ‘in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.' ”' ” (Id. at p. 305, quoting Colorado v. Spring (1987) 479 U.S. 564, 573 [discussing federal standard for waiving Fifth Amendment privilege against self-incrimination]; see Sivongxxay, supra, 3 Cal.5th at p. 166.)
Our task as a reviewing court is to independently examine the record to determine whether the defendant's jury waiver was knowing, intelligent, and voluntary. (See People v. Doolin (2009) 45 Cal.4th 390, 453; People v. Vargas (1993) 13 Cal.App.4th 1653, 1660.) A reviewing court will “uphold the validity of a jury waiver ‘ “if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.”' [Citation.] We do not start with a presumption of validity that may only be rebutted by signs of a defendant's confusion or unwillingness in entering a waiver. Instead, a reviewing court satisfies itself of a legitimate waiver only when the record affirmatively demonstrates it was knowing and intelligent.” (Daniels, supra, 3 Cal.5th at p. 991 (lead opn. of Cuéllar, J.); see People v. Collins, supra, 26 Cal.4th at p. 310.)
Trial courts are not required to follow a rigid formula or use any particular words to ensure that a jury waiver is knowing and intelligent. (Sivongxxay, supra, 3 Cal.5th at pp. 169-170; Daniels, supra, 3 Cal.5th at pp. 992-993 (lead opn. of Cuéllar, J.) [“We continue to eschew any rigid rubric for trial courts to follow in order to decide whether to accept a defendant's relinquishment of this [jury trial] right.”].) “[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; see Sivongxxay, at pp. 166-167.)
While there is not a rigid formula, the record must show sufficient engagement by the court directly with a waiving defendant to demonstrate that a valid waiver was made. “[T]he trial court is not merely a passive receiver of an attempted [jury] waiver.... The court's obligation ‘to advise [the] defendant of his right to [a] jury trial' and to ‘determine impartially whether [the] defendant's waiver of jury trial was knowing, intelligent, and voluntary' is a ‘constitutional procedural duty.' ” (Daniels, supra, 3 Cal.5th at p. 993 (lead opn. of Cuéllar, J.).) “[T]he denial of a defendant's constitutional right to jury trial on a charged offense constitutes structural error that requires reversal without consideration of the strength of the evidence.” (People v. French (2008) 43 Cal.4th 36, 52, fn. 8, italics added; see People v. Ernst (1994) 8 Cal.4th 441, 449.)
Here, we conclude the record is insufficient to support a valid waiver. The trial court took no steps to ensure that Amirov comprehended what a jury trial entailed. (Sivongxxay, supra, 3 Cal.5th at p. 169.) This is a defendant whose mental competency was sufficiently questionable at one point that his counsel declared a doubt as to his competency. Nonetheless, the court failed to ask Amirov any questions designed to probe his comprehension of the waiver, including whether he had an adequate opportunity to discuss his jury waiver decision with his defense counsel, or whether he understood or had any questions about his jury waiver. (Id. at pp. 169-170.) The court also did not ask defense counsel whether he had explained to Amirov any of “the fundamental differences between a jury trial and a bench trial.” (Id. at p. 170.)
The Attorney General asks us to infer from the fact that Amirov's trial counsel relayed his client's intentions to the court that a communication about the nature of the waiver must have taken place. But counsel's understanding of his client's intentions says nothing about the nature of what Amirov may have been told. Under the circumstances, the court itself should have advised Amirov of the four factors that comprise “the basic mechanics of a jury trial” as explained in Sivongxxay: (1) that the 12 jurors making up his jury would be from the community; (2) that he would be able to participate, through his counsel, in selecting the 12 jurors; (3) that the 12 jurors would have to unanimously agree on each charge and enhancement; and (4) that if a defendant waives the right to a jury trial, a judge alone will decide his or her guilt or innocence. (Sivongxxay, supra, 3 Cal.5th at p. 169.) And depending on Amirov's evident level of comprehension of these basics, further explanation may have been necessary. Only by giving Amirov information about that nature of the right being waived, in other words, could a meaningful record be made about whether he understood what he was giving up.
The record in this case is very similar to the records in People v. Jones (2018) 26 Cal.App.5th 420 (Jones) and People v. Blancett (2017) 15 Cal.App.5th 1200. In these cases, as here, the records did not affirmatively show that the defendants' jury waivers were knowing, intelligent, and voluntary. (Jones, at pp. 435-437; Blancett, at pp. 1204-1207.) In both cases, as here, (1) the waiver colloquies were limited to asking the defendants whether they agreed to have, or were “ ‘okay' ” with having, their cases decided by the court rather than a jury; (2) the defendants were not advised of any of the other “ ‘significant attributes' ” or “ basic mechanics' ” of a jury trial; and (3) the trial courts did not ask the defendants whether they had had sufficient opportunities to discuss their jury waivers with their counsel. (Jones, at pp. 428-429, 434, 437; see Blancett, at pp. 1203, 1205-1206; see also Sivongxxay, supra, 3 Cal.5th at pp. 169-170.) Additionally, the defendant in Jones, like defendant here, had no prior experience with the criminal justice system. (Jones, supra, 26 Cal.App.5th at p. 437.) And the circumstances in Blancett, an appeal that arose out of a mentally disordered offender (MDO) proceeding, involved a defendant who, like Amirov, showed clear signs of mental instability. (Blancett, supra, 15 Cal.App.5th at pp. 1204-1207.)
The Attorney General contends, nonetheless, that Amirov's jury waiver was knowing and intelligent because the record demonstrates counsel discussed the option of a court trial with him. At the pretrial hearing, held the day before Amirov's trial, trial counsel told the court that Amirov would be waiving his right to a jury trial and requesting a court trial. From this, the Attorney General argues the following: “[t]he record demonstrates that appellant discussed the option of a court trial with his attorney on multiple occasions and counsel indicated that appellant was ‘not going to change his mind' and withdraw the jury trial waiver.” We are not persuaded.
Although the record showed Amirov may have had some discussion with trial counsel prior to the waiver of jury, and trial counsel indicated to the trial court that Amirov wanted to waive his right to a jury trial, the record does not show whether the attorney ever discussed the nature of a jury trial with his client. (Jones, supra, 26 Cal.App.5th at pp. 423, 435-437.) The court did not ask Amirov any questions when taking his waiver; including whether he had an adequate opportunity to discuss his jury waiver decision with his defense counsel, or whether he understood or had any questions about his jury waiver. (Sivongxxay, supra, 3 Cal.5th at pp. 169-170.) The court also did not ask defense counsel whether he had explained to Amirov any of “the fundamental differences between a jury trial and a bench trial.” (Id. at p. 170.) On this record, we must conclude that the court failed to ascertain whether Amirov's discussion with his attorney sufficiently informed Amirov regarding the nature of the right to a jury trial, and whether further advisements were necessary. (Jones, supra, 26 Cal.App.5th at p. 436 [reversing judgment in part because trial court did not “take steps to ensure [defendant] ‘comprehend[ed] what the jury trial right entails' ”].)
DISPOSITION
The judgment of conviction is reversed, and the cause is remanded for further proceedings consistent with this opinion, including retrial should the prosecution choose to try Amirov again. (Jones, supra, 26 Cal.5th at pp. 437, 443-444 & fn. 15.)
WE CONCUR: BROWN, J., ROSS, J. [*]
[*] Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.