Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. YA063505, Eric C. Taylor, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
Eric Glenn Elkins appeals from a judgment entered following a court trial in which he was convicted of narcotics-related offenses. His sole contention on appeal is the trial court abused its discretion in denying his request to withdraw his jury trial waiver. We affirm.
FACUTAL AND PROCEDURAL BACKGROUND
After running a stop sign, Elkins was pulled over by police who detected the odor of marijuana as they approached Elkins’s SUV. Police detained Elkins, searched his SUV, and found 33 baggies of marijuana and two baggies containing rock cocaine. Police also discovered $1,700 in Elkins’s shoes. Elkins waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436, [86 S.Ct. 1602, 16 L.Ed.2d 694]) and admitted the recovered marijuana and rock cocaine belonged to him.
Elkins was charged by information with possession for sale of cocaine base (count 1) and possession of marijuana for sale (count 2). It was further alleged as to both counts that Elkins had served six separate prison terms for felonies.
At the conclusion of the court trial, Elkins was found not guilty of count 1, but guilty of the lesser included offense of possession of cocaine base, and guilty of count 2. Elkins admitted the prior prison term enhancement allegations. The trial court sentenced Elkins to an aggregate state prison term of seven years eight months, consisting of the two-year middle term on count 1, plus eight months or one-third the two-year middle term on count 2, plus five years for the prior prison term enhancements.
Although Elkins twice (in separate proceedings) admitted six one-year prior prison term enhancements as alleged in the information, the People and the court spoke of Elkins having five such enhancements, which implies one of them was dismissed on the People’s motion.
1. The Jury Trial Waiver
After failed plea negotiations, Elkins decided to waive his right to a jury trial after consulting defense counsel who explained “all the options.” The trial court informed Elkins of the rights he was giving up in waiving a jury trial. The court then inquired if Elkins understood and wanted to waive those rights, and Elkins replied, “Yes,” and defense counsel joined. The prosecutor also joined in the waiver. Elkins also understood and expressly waived his right to a jury trial of any sentencing factors. (Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856, 166 L.Ed.2d 856.) The case was continued to the following day.
The next afternoon, over the prosecutor’s objection, Elkins asked to withdraw his jury trial waiver. Defense counsel explained Elkins’s “change of heart” was prompted by discussions with family members, who felt he had made a mistake in waiving his jury trial rights. The trial court responded it was ready to try the case; there was no jury currently available; and two prosecution witnesses were already present. Defense counsel stated Elkins was willing to waive time until the following week. The court observed “the calendar reflects all the other cases that we have to do,” and no facts had been presented to justify the withdrawal of the waiver.
Elkins told the trial court, “. . . I had thought I was completely aware of exactly what was going on, yet and still, by certain things that I may have waived right out of my mouth, it was – as I thought about it and my freedom is at stake, my testimony as far as me pleading guilty or not guilty or vice versa, I’m withdrawing my – I requested to have a jury trial, please. That’s all I’m requesting, to have a jury trial.”
Defense counsel explained Elkins was saying he had made a mistake waiving his jury trial rights and did not understand the consequences of his waiver. Somewhat amazed, the trial court noted, “How could [Elkins] not understand the consequences of the waiver when we went over this ad nauseam yesterday?” The court repeated there was no jury panel available, and a number of jury trials were set to commence the following week. The court further stated, “And you all told me that you were making that waiver as to this courtroom because I didn’t know if we would be engaged or not. To make sure it stayed here, we got engaged by doing a pretrial motion yesterday, a motion to bifurcate.”
Defense counsel argued it was late in the day; the prosecution witnesses were police officers who would have to return the next day anyway; the trial would last for two days at most; and the court could order a jury panel for the following morning. The trial court stated it could not commence a jury trial the following morning because its morning calendar was almost “completely booked” with jury trials for the next 30 days. Defense counsel indicated Elkins had offered to waive time to accommodate the court’s calendar. The prosecutor maintained the two prosecution witnesses, deputy sheriffs, were in court on their day-off and both worked nights. The prosecutor also commented the jury trials to which the court had referred “are mine.” Elkins again spoke to the trial court, saying he wanted to withdraw his waiver because he “was concerned about [his] freedom” and “under a lot of pressure.”
In denying Elkins’ request, the trial court concluded: “Based upon what I’ve read on the law covering this issue, I don’t hear a good reason why the waiver should be withdrawn. We do have witnesses here in court. We do have this time set aside for this particular matter. We could have had a jury here. We could have been picking a jury, but we set this aside; we set this particular time aside to handle this case.”
DISCUSSION
Elkins does not challenge the adequacy of the trial court’s advisement or inquiry with respect to his jury trial waiver. Nor does he contend his waiver was given in haste, or under duress, or was not an informed decision. Rather, Elkins contends the court abused its discretion in denying his request to withdraw his waiver because only one day had elapsed between his jury trial waiver and his request to withdraw it.
“It is well established that a waiver of a jury trial, voluntarily and regularly made, cannot afterward be withdrawn except in the discretion of the court. (People v. Osmon (1961) 195 Cal.App.2d 151, 153, 154; People v. Melton (1954) 125 Cal.App.2d Supp. 901.) Absent special circumstances the court may deny a motion to withdraw such a waiver especially where adverse consequences will flow from the defendant's change of mind. In exercising its discretion the court may consider such matters as the timeliness of the motion to withdraw the waiver, the reason for the requested withdrawal and the possibility that undue delay of the trial or inconvenience to witnesses would result from granting the motion.” (People v. Chambers (1972) 7 Cal.3d 666, 670-671 (Chambers).)
We see no abuse of discretion in the trial court’s decision to deny Elkins’s request to withdraw his waiver. There were no special circumstances here that weighed in favor of granting the withdrawal. The waiver was knowingly made and valid in all respects. The motion was untimely in that it was made on the day set for trial, after the court had ruled on a pretrial motion at the defense request in order to keep the case in that courtroom. The prosecution established a delay would inconvenience its witnesses, deputy sheriffs who were present and waiting to testify.
As for Elkins’s claim his request should have been granted because the time between the waiver and the request to withdraw it was short, in Chambers, the defendant waived a jury trial, but attempted to withdraw the waiver later the same day before trial commenced. The California Supreme Court upheld the denial of the motion to withdraw the jury waiver on grounds the motion to withdraw was untimely and no special circumstances existed that were sufficient to outweigh the delay, inconvenience, and potential prejudice that would result from granting the motion. (Chambers, supra, 7 Cal.3d at p. 671.) Such is the case here. There was no basis for Elkins’s request other than having a change of heart. In sum, no abuse of discretion appears.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., ZELON, J.