Opinion
C041214.
7-30-2003
THE PEOPLE, Plaintiff and Respondent, v. CHARLEY JONES, JR., Defendant and Appellant.
Defendant Charley Jones, Jr. was found guilty by the trial court of penetration of an unconscious victim and unlawful sexual intercourse with a minor. (Pen. Code, §§ 289, subd. (d), 261.5, subd. (c)). The trial court found defendant had five prior serious felony convictions. Defendant was sentenced to two concurrent terms of 25 years to life in prison.
Further undesignated statutory references are to the Penal Code.
On appeal, defendant argues the trial court erred because it did not permit him to withdraw his jury trial waiver because the waiver was not knowing, intelligent, or voluntary. He further argues that even if the waiver was voluntary and intelligent, the trial court abused its discretion in denying his request to withdraw the waiver. We conclude the trial court did not abuse its discretion in refusing to permit defendant to withdraw his jury trial waiver.
BACKGROUND
Because the issues on appeal do not concern the facts of the crimes, we do not recount them in detail. The evidence in support of the verdict establishes defendant committed two sexual acts on a 15-year-old-girl, the daughter of a roommate, while the victim was medicated. The victim awoke while defendant was on top of her. A medical evaluation confirmed the victim had been injured and molested. Defendant admitted to a detective he had digitally penetrated the victim.
Following defendants arrest, a series of informations was filed. On November 27, 2001, the third amended information included six substantive charges, including rape of an unconscious person (§ 261, subd. (a)(4)), sexual penetration of an unconscious person (§ 289, subd. (d)), lewd conduct on a 15-year-old by a perpetrator more than 10 years older (§ 288, subd. (c)(1)), sexual penetration of a minor under 18 (§ 289, subd. (h)), unlawful sexual intercourse with a minor more than three years younger (§ 261.5, subd. (c)), and sexual battery (§ 243.4, subd. (d)(1)). Defendant was also charged with five prior serious felony convictions. (§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).) Defendants motion to set aside the third information was denied December 3, 2001.
The serious felony convictions found true at trial were four 1983 robberies from San Joaquin County and one 1984 robbery from San Mateo County. (§ 211.)
On December 18, 2001, before Judge King, defense counsel announced:
"Your Honor, at this time its our position, we would like to waive trial by jury, and would prefer to have a trial by Court with this Court. Additionally, there is some new evidence that my office has just been provided with that Ive not had the opportunity to review with my client; therefore, were asking that the matter be continued in order to give us time to review that and possibly do some retesting. Wed ask perhaps for February 21st. [P] Time will be waived.
Defendant does not argue that the jury waiver was specific to Judge King and did not seek to withdraw his waiver as to Judge Murray.
"THE COURT: First of all, [the prosecutor], as to the waiver of jury trial, youre joining in that?
"[THE PROSECUTOR]: Yes.
"THE COURT: And do you have any objection that the trial date be reset?
"[THE PROSECUTOR]: No, sir.
"THE COURT: All right. [Defendant], youre the one in custody. And Im going to advise you of two rights that you have: The first right that you have, sir, is to have the jury trial that we have set for tomorrow. Do you understand that, sir?
"THE DEFENDANT: Yes, sir.
"THE COURT: Im sorry. What did you say?
"THE DEFENDANT: I said, Yes, sir. [P] . . . [P]
"THE COURT: Just relax. Now, . . . your attorney tells me you wish to waive or give up your right to have the jury trial, and have the matter heard by the Court. Is that correct?
"THE DEFENDANT: Yes, sir.
"THE COURT: [Defense counsel], you join in that waiver?"
"[DEFENSE COUNSEL]: Yes, your Honor."
The case was set for trial February 21st and defendant waived his right to a speedy trial.
The trial court further stated:
"THE COURT: All right. I accept the Defendants time wavier. I find it to be free and voluntary. I also will accept the Defendants waiver of the jury trial. I find that also to be free and voluntary. [P] [Defense counsel] joins in both the jury waiver and the time waiver. . . ."
The case was set for trial on February 21, 2002.
According to the clerks minutes, on February 20 a fourth amended information was filed, alleging only two substantive counts plus the five serious felony prior convictions. On February 21, before Judge Watkins, the prosecutor requested a continuance and defense counsel did not oppose a continuance. According to the clerks minutes, defendant himself agreed to a continuance to March 14, 2002.
On March 14, 2002, before Judge Murray, defense counsel sought to have defendant arraigned on the fourth amended information, and informed the trial court defendant "was withdrawing that previous waiver." Defense counsel announced defendant was "requesting a jury trial."
The prosecutor informed the court that the People filed the fourth amended information because there had been an "informal agreement" between herself and defense counsel that the prosecution would reduce the number of charges if defendant waived a jury. The prosecutor advised the court she would file a fifth information. The prosecutor argued defendants jury waiver had been knowing, intelligent and voluntary, the witnesses had shown up three separate times, and the victim was traumatized.
Defense counsel argued the continuances were due to lack of necessary witnesses and testing. Defense counsel opined defendant was entitled as a "basic right" to withdraw his jury trial waiver which was a "substantial right," in face of the "minor inconvenience of a setting of a jury trial."
The trial court stated defendant would be correct except that defendant was trying to withdraw his waiver on the morning of trial, months after initially given, and asked for a reason for the delay. Defense counsel said defendant was "concerned," noting that each time defendant showed up there were more charges. When the trial court pointed out that the fourth amended information included fewer charges, defense counsel stated that defendant "feels that in some manner his rights are being violated. And he believes since he is facing such substantial charges, he would feel more comfortable with a Trial by Jury [sic]."
The trial court ruled:
"It appears to the Court that the Defendant is simply trying to delay the proceedings. He originally sought to waive his right to Trial by Jury [sic] in December. The Court accepted that waiver. The Court made findings that that waiver was free and voluntary, knowing and intelligent. [P] That Defendant then had the matter set for trial, February the 21st. At that time the People made a motion to continue. The Defendant gave no indication that he was seeking to withdraw his waiver of right to Trial by Jury [sic] at that time. [P] We are now at the morning of trial, and the Defendant now seeks to withdraw his waiver of right to Trial by Jury [sic]. There is no indication that there is any good cause or any particular reason for it. It appears to the Court that the Defendant is simply trying to delay the proceedings."
The defense then protested that "part of the agreement in waiving the Trial by Jury [sic] was that the People would dismiss the charges." However, when asked whether the defendant acknowledged that there was an agreement to file a fourth amended information and whether the current information complied with the agreement, defense counsel said it did not.
After the trial court denied defendants request to proceed with a jury on the fourth amended information, defendant agreed to be arraigned on the fourth information.
After the trial, Judge Murray stated he had been unaware that there had been any informal agreement between counsel concerning the filing of an amended information and that his decision to deny defendants motion to withdraw his jury waiver was based on the record — particularly because there had been an intervening court appearance. In any event, Judge Murray added that his decision to deny the jury waiver would have been the same. In response, defense counsel stated:
"That was not an inducement to my client to waive the jury. That was something that the Prosecutor indicated to me she would do if the jury was waived, based on our considerations of a Court trial and jury trial, not the Prosecutors."
DISCUSSION
I.
Defendant first argues the trial court was "required" to allow defendant to withdraw his jury trial waiver because the "record" shows the waiver was constitutionally defective because it was not knowing, voluntary, and intelligent. We find the record to the contrary. In any event, any error by the trial court is waived because defendant did not raise this ground in the trial court.
We recognize that a right to a jury trial is fundamental under federal and state constitutional law. (Sullivan v. Louisiana (1993) 508 U.S. 275, 281-282 [124 L. Ed. 2d 182, 190- 191, 113 S. Ct. 2078].) Article I, section 16 of the California Constitution confers upon a defendant in a criminal prosecution the right to a trial by jury. (People v. Ernst (1994) 8 Cal.4th 441, 444-445, 881 P.2d 298.)
Defendant now complains that, on the face of it, his jury trial waiver does not pass constitutional muster as knowing and intelligent due to a lack of explanation of his right to a jury or any detailed questioning by the trial court. But defendant did not seek to withdraw his jury waiver on any constitutional grounds. Defense counsel raised no challenge to his waiver as constitutionally infirm because defendant did not understand any constitutional dimensions or was unaware of the ramifications of his waiver. When expressly asked for the reasons defendant wanted to withdraw his waiver, defense counsel cited no facts or circumstances that had rendered the waiver involuntary.
Moreover, trial counsel was counsel on December 18, 2001. Trial counsel suggested the waiver. Trial counsel joined in the waiver. The trial courts inquiry of defendant was express and direct. Defendants waiver was express and personal and the trial court expressly found the waiver to be free and voluntary.
Defendants current position that the "record" demonstrated the infirmity of the jury trial waiver ignores reality. Judge King was the judge at the entry of the jury trial waiver and Judge Murray was the judge at trial. At the time of the request to withdraw the jury waiver, as defendant points out in his reply brief, there is no indication the transcript of the jury waiver had been prepared. Other than the clerks minutes and the personal memories of counsel, we are at a loss to determine what "record" defendant is now relying upon that was before Judge Murray. If defendants waiver was not knowing and intelligent, it was defense counsels burden to demonstrate its deficiencies.
CSR Sherrie Benson was the court reporter on December 18, 2002, and certified the transcript on May 22, 2002.
Defendant also fails to explain how his waiver could be seen as involuntary. A waiver of a fundamental right may be termed involuntary if it is not the product of a free and deliberate choice, but rather is the result of intimidation, coercion or deception. (People v. Collins (2001) 26 Cal.4th 297, 305.) It is settled that a waiver of jury trial is involuntary if a trial court induces a jury trial waiver by promising "some benefit" to the defendant. (Id., at p. 300.) In contrast to the inducement to the jury trial waiver rendering Collinss plea involuntary, defendant specifically insisted there was no inducement of the jury waiver by any agreement with the prosecutor.
It was the prosecutor who announced that there had been an "informal agreement" between the prosecution and defense that the prosecution would reduce the charges to two in return for a jury waiver. Defense counsel referred to an agreement by the prosecutor to dismiss charges, but insisted it did not induce the jury waiver.
No other factor demonstrating any coercion or inducement rendering the plea involuntary appears. Therefore, such an argument must fail.
II.
Defendant finally argues that, even if there were no legally infirm grounds requiring the withdrawal of the waiver, the trial court abused its discretion by refusing to do so. We disagree.
It is settled that a jury trial waiver may not be withdrawn, when voluntarily and regularly made, except in the discretion of the trial court. (People v. Chambers (1972) 7 Cal.3d. 666, 670- 671, 102 Cal. Rptr. 776, 498 P.2d 1024.) Absent special circumstances, the court may deny a motion to withdraw such a waiver especially where adverse consequences will flow from the defendants 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. (Ibid.) On appeal, the trial courts denial of a request for relief of jury waiver cannot be reversed in the absence of proof of abuse of discretion. (Gonzales v. Nork (1978) 20 Cal.3d 500, 507, 143 Cal. Rptr. 240, 573 P.2d 458.)
We see no special circumstances supporting the request to withdraw the waiver and conclude it was baseless, untimely, and would have resulted in unwarranted inconvenience to a minor witness. Defendant failed to specify any reasons for the withdrawal. Defendant had let three months go by without expressing any change of heart. Defendant did not make any request to withdraw his waiver until the witnesses were available on the day set for trial. The prosecutor noted that the witnesses, including an adolescent sexual assault victim, had been called in three times. Defendant was the only defense witness.
The trial court found defendants motion was for purposes of delay. We cannot say the trial court abused its discretion in making that finding under the circumstances before it.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P.J., KOLKEY, J.