Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. FCR220857
RIVERA, J.
Anthony Marques Fikes appeals from a judgment of conviction upon a court trial finding him guilty of second degree robbery (Pen. Code, § 211). He contends that the judgment must be reversed because he did not waive his right to a jury trial. The Attorney General concedes the error. We reverse.
All further statutory references are to the Penal Code.
I. FACTUAL BACKGROUND
Defendant has a history of mental illness. On December 28, 2004, a criminal complaint was filed charging him with second degree robbery. The charge stemmed from an incident on December 24, 2004, when defendant hit a woman several times and took her purse. On February 9, 2005, the court suspended criminal proceedings and ordered an evaluation pursuant to section 1368 to determine defendant’s competency to stand trial. Defendant was found incompetent and was committed to the Napa State Hospital.
On October 27, 2005, the court found that defendant was competent within the meaning of section 1367 and reinstated criminal proceedings. The preliminary hearing was held on December 29, 2005, and defendant was held to answer to one count of second degree robbery. The court thereafter granted defendant’s motion to continue the matter based on his counsel’s concerns about defendant’s mental health. The court suspended proceedings again on May 19, 2006, based on defense counsel’s doubt as to defendant’s competency.
On June 15, 2006, the court found defendant competent to stand trial. Defense counsel informed the court that defendant had already waived a jury trial. The court set the matter for a court trial.
The trial was held on July 28, 2006, and defendant was convicted of the robbery charge. The court imposed a paper commitment pursuant to section 1170, subdivision (a)(3) as defendant’s credits of 764 days exceeded the two-year term imposed.
II. DISCUSSION
Defendant contends that his conviction must be reversed because he was denied his right to a jury trial. As the record reflects that defendant never expressly waived his right to a jury trial, we agree that defendant is entitled to a reversal.
The record demonstrates that on June 15, 2006, when the matter was set for trial, defense counsel twice informed the court that defendant had already waived a jury trial. At no point, however, did the court obtain an express jury trial waiver from defendant.
“A defendant in a criminal prosecution has a right to a trial by jury under both the federal Constitution [citation] and our state Constitution [citation]. [Citations.] The California Constitution permits the defendant and the prosecution to waive their right to a jury and elect a court trial, but specifies the following manner for doing so: ‘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, italics added.)” (People v. Ernst (1994) 8 Cal.4th 441, 444-445 (Ernst).)
Here, the Attorney General concedes and the record indicates that there was no express waiver by defendant of his right to a jury trial. As defendant was tried by the court without an express waiver of his right to have the case tried by a jury, he was denied his right to a jury trial and the resulting judgment must be reversed. (Ernst, supra, 8 Cal.4th at p. 448.) It is well settled that the denial of the right to a jury trial is a “ ‘ “structural defect[]” in the judicial proceedings’ that, by its nature, results in . . . a ‘miscarriage of justice.’ ” (Id. at p. 449.)
III. DISPOSITION
The judgment is reversed.
We concur: REARDON, Acting P. J., SEPULVEDA, J.