Opinion
E072111
05-21-2020
THE PEOPLE, Plaintiff and Respondent, v. PEDRO PAREDES RAMIREZ, Defendant and Appellant.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1605001) OPINION APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Reversed. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Following his waiver of his right to a jury trial, the trial court found defendant and appellant, Pedro Paredes Ramirez, guilty of nine offenses, including several sex offenses, based on his peering into and nighttime entry into several homes and his acts of sexually assaulting occupants of the homes, including several children. The court also found burglary and multiple-victim "One Strike" law allegations true. (§ 667.61, subds. (d)(4), (e)(2), (e)(4).)
The court found defendant guilty of one count (count 1) of aggravated trespass (Pen. Code, § 602.5, subd. (b) ), three counts (counts 2, 3, and 7) of committing a lewd act on a child under age 14 (§ 288, subd. (a)), one count (count 4) of first degree burglary (§ 459) two counts (counts 5 and 8) of assault with intent to commit a sex crime during the commission of a burglary (§ 220, subd. (b)), one count (count 6) of disorderly conduct (§ 647, subd. (i)), and one count (count 9) of committing a forcible lewd act on a child under age 14 (§ 288, subd. (b)). The court found burglary One Strike law allegations true in counts 2, 3, 7 and 9 (§ 667.61, subds. (d)(4), (e)(2)) and also found a multiple victim One Strike law allegation true. (§ 667.61, subd. (e)(4).) Defendant was sentenced to six years plus 89 years to life plus life without the possibility of parole (LWOP).
Undesignated statutory references are to the Penal Code.
Defendant's aggregate sentence is comprised of six years on count 4, the principle count; plus 75 years to life (consecutive terms of 25 years to life each) on counts 2, 3, and 7; plus 14 years to life (consecutive terms of seven years to life each) on counts 5 and 8; plus life without the possibility of parole on count 9. The court also imposed concurrent county jail terms on the counts 1 and 6, defendant's misdemeanor convictions.
In this appeal, defendant claims the judgment must be reversed because his waiver of his right to a jury trial is invalid. He claims the record does not affirmatively show that his jury waiver was knowing, intelligent, and voluntary under the totality of the circumstances. We agree. Thus, we reverse the judgment.
Defendant further claims that insufficient evidence supports his nonforcible lewd act convictions in counts 2 and 3 involving six-year-old E.R. We conclude that sufficient evidence supports these convictions; thus, defendant may be retried on these charges. He may also be retried on all of the other charges, given that he does not challenge the sufficiency of the evidence supporting his convictions on any of those charges.
Defendant also claims, and the People and we agree, that the court's One Strike law finding under section 667.61 subdivision (e)(5), must be reversed because insufficient evidence supports it. In finding the multiple victim allegation true (§ 667.61, subd. (e)(4)), the court said that the multiple victim finding was based on subdivision (e)(4) and (e)(5) (tying and binding of a single victim) of section 667.61. Both subdivisions were pled in the first amended information. The subdivision (e)(5) allegation was apparently pled inadvertently in addition to the multiple victim allegation under subdivision (e)(4). Because insufficient evidence supports the (e)(5) finding, defendant may not be retried on it, although he may be retried on the other One Strike law allegations (§ 667.61, subds. (d)(4), (e)(2) [burglary], (e)(4) [multiple victim]), given that he does not challenge the sufficiency of the evidence supporting the true finding on these allegations.
Because we reverse the judgment, it is unnecessary to address defendant's other two claims of error, namely, that (1) the court violated his due process rights in imposing a $300 restitution fine and $630 in court operations and criminal convictions assessments without holding an ability to pay hearing, and (2) the indeterminate abstract of judgment must be corrected to show that he committed counts 2 and 3 in 2015, not in 2016. If defendant is retried, the court may hold an ability to pay hearing before imposing any restitution fine and assessments, and it may also issue a correct abstract of judgment.
II. FACTUAL BACKGROUND
Over the course of a little over a year, beginning in August 2015, defendant went on a spree of nighttime home invasions and, in the course of those home invasions, committed several sexual assaults. He was arrested on October 10, 2016, shortly after he committed his last two home invasions on October 9, 2016. The prosecution's evidence is summarized post. Defendant did not testify or present any affirmative evidence. A. Defendant Entered C.G.'s Home (August 2015) (Count 1)
Around 4:00 a.m. on August 20, 2015, C.G. was sleeping in her bedroom on Comstock Avenue in Riverside when she awoke to someone pulling her blanket off of her leg. She turned and saw someone running out of her bedroom. She got up and found that the front door to the house was open. Her mother and two children were also in the house.
C.G. looked out of her bedroom window and saw a white vehicle parked across the street. The man she saw in her bedroom got out of the vehicle and walked into her yard. She called the police. As she was calling the police, the man, whom she identified in court as defendant, came to her bedroom window, looked straight at her, and was grunting and fondling his penis. Defendant left after C.G. yelled at him that she was calling the police. C.G. had never seen defendant before. B. Defendant Entered E.R.'s Home and Molested Her (September 6, 2015) (Counts 2 and 3)
Around 5:45 a.m. on September 6, 2015, six-year-old E.R. was asleep in her bedroom when defendant knocked on her bedroom window. Defendant told E.R. he had a surprise for her mother and to open the door. E.R. had never seen defendant before, but she opened the door for him because he told her to. E.R. and her family lived on Picker Street, near Comstock Avenue.
Later on September 6, 2015, E.R. was interviewed by the Riverside County Child Abuse and Assessment Team (RCAT). The recorded RCAT interview and transcript of it were admitted into evidence.
After E.R. let defendant into the house, he hugged her, rubbed her face, and touched her "private" over her clothes. They sat on the living room couch and talked for a few minutes. Next, defendant followed E.R. into her bedroom, although she told him not to. He closed the bedroom door and told E.R. to change into shorts, then told her to change in to a dress that was on the floor. E.R. said no to the dress because she was already putting on shorts. She changed into the shorts behind her bed so defendant would not see her.
After E.R. changed into shorts, defendant pulled her onto his lap, unzipped his pants, and took out his penis. He made E.R. sit on his penis while he touched her legs and her crotch, over her shorts. E.R. felt "super scared." She could feel defendant's penis on her bottom. She jumped off of defendant and tried to get away from him, but he blocked her bedroom door. She managed to get past him and got out of her bedroom. She went to her parents' room and told them that someone had broken into the house. Meanwhile, defendant ran out the house through the front door. He urinated in the front yard, then drove away in a white truck with rails on it. E.R.'s mother called the police.
On October 10, 2016, E.R. identified defendant from a six-person photo lineup as the man who was in her house. But while testifying at trial in November 2018, E.R. identified a person sitting in the gallery, rather than defendant, as the man who was in her house on September 6, 2015. She recalled that the man had a droopy eye, a mustache, and a small beard. She believed he was "Mexican" based on "the way he talked" and his skin tone.
During an RCAT interview on September 6, 2015, E.R. similarly described the man as having one eye that was "down." The police detective who showed E.R. the six-person photo lineup on October 10, 2016, identified defendant at trial as the person E.R. identified in the photo lineup. Following her RCAT interview, E.R. and another witness described the man to a sketch artist who made a drawing of the suspect. C. Defendant Entered N.C. and Y.C.'s Home, Touched N.C., and Masturbated (May 15, 2016) (Counts 4 and 5)
See footnote 3, ante.
N.C. and Y.C. are sisters who lived with their parents and other family members on Crest Avenue, near Comstock Avenue and Picker Street in Riverside. Shortly after 3:00 a.m. on May 15, 2016, N.C. awoke in her bed because defendant was tugging on her underwear, under her shorts, near her inner thigh and vaginal area. N.C. jolted up, and defendant left N.C.'s bedroom, but he did not leave the house. As N.C. was trying to process what had just happened, defendant went across the hall to Y.C.'s room.
A neighbor's video camera recorded a white SUV traveling on Crest Avenue at 3:06 a.m. on May 15, 2016.
Y.C. was asleep in her room and awoke after someone yanked the blankets off of her and touched her right thigh. Defendant was standing with his pants down, masturbating. Thinking that defendant might be her live-in brother-in-law, Y.C asked if it was him. Defendant replied that he was not Y.C.'s brother in-law, tried to grab Y.C., and Y.C. screamed. He then pulled up his pants and bolted out of the front door.
Defendant's English was "broken up," Y.C. could barely understand him, and could see that he did not speak English.
After defendant left her house, N.C. and YC. discovered that two watches and $40 in cash were missing.
Minutes after defendant left N.C and Y.C.'s house, someone matching his description knocked on the bedroom window of a nearby house, shined the flashlight of a cell phone inside where two sisters were sleeping, and masturbated. The next morning, the sisters' father discovered that the screens on the sisters' windows were partly torn off and called the police. Neither sister was able to positively identify defendant as the perpetrator, and he was not charged with any crimes based on this incident. D. Defendant Peered into His Landlord's Window (July 2016) (Count 6)
Around 9:00 p.m. on July 28, 2016, P.G. and his wife, M.G., were leaving their house to run an errand when they saw defendant walking "briskly" away from a neighbor's house. Defendant got into a white SUV with "a light bar at the top," made a U-turn, and drove past P.G. and M.G.
M.G. thought the white SUV matched the description of "something that happened in the months prior" in Riverside that she had learned about on Facebook. P.G. and M.G. followed the SUV, and M.G. took down its license plate number. They lost sight of the SUV, then M.G. saw defendant walking from the front door of another house, cut across the garage door and then walk up where the trash cans were. M.G. called the police. As she was doing so, defendant quickly got back into his SUV and drove away.
P.G. and M.G. lost sight of the SUV and completed their errand. Around 20 to 30 minutes later, they were returning to their house when they noticed the SUV parked in the driveway of a house on Rutland Avenue, which is in the same area as Comstock, Picker, and Crest. Defendant was outside a window of the house, crouched on a stool and staring "straight into the window" with his hands on the sides of his face. M.G. called the police a second time. The house on Rutland was the "third house" that M.G. and P.G. saw defendant "creeping around." Defendant lived in the house on Rutland, and the window he was looking into was the bedroom window of his female landlord. E. Defendant Entered 13-Year-Old L.F.'s Bedroom, Woke Her, and Exposed His Penis (October 9, 2016) (Count 7)
Around 3:15 a.m. on October 9, 2016, 13-year-old L.F. was asleep in her bedroom, with the light on, when she felt a tap on her shoulder. She awoke to see defendant in her bedroom. Meanwhile, L.F.'s mother, T.F., heard noise coming from L.F.'s bedroom, walked in, and saw defendant with his pants open and his penis out. Defendant was wearing black pants and was not wearing a shirt. T.F. screamed, defendant fled through the bedroom window, and sped off in a white or gold SUV. L.F., T.F., and their family lived on Adler Place in Riverside, near the homes of defendant's earlier victims. F. Defendant Forcibly Molested N.G. and Her 12-year-old Daughter, H.G., in Their Home (October 9, 2016) (Counts 8 and 9)
Around 10 minutes after defendant left L.F.'s house on October 9, 2016, he was at another house on nearby Cypress Avenue. N.G. lived in the house with her husband and children, including her 12-year-old daughter, H.G. N.G. was awakened by a strange noise, gathered her children in her room, and barricaded the door with a desk and chair. A moment later, N.G. heard glass breaking and called 911.
Just as N.G. began speaking with the 911 dispatcher, defendant attempted to force his way into N.G.'s room by pushing the door open and wedging his body through the door. N.G. pushed back. As they struggled, N.G. told defendant she would go with him if he left her children alone. N.G. could see that defendant was wearing jeans but was not wearing a shirt.
Defendant reached into the room through the door, placed his hand on N.G.'s buttocks, and penetrated her anus with his finger several times. He had his penis out and was intermittently masturbating. By this time, H.G. joined N.G.'s efforts to fight off defendant. As H.G. did so, defendant touched H.G.'s breasts under her shirt. He also touched H.G.'s face, put his hand in H.G.'s mouth, and H.G. bit his thumb. He finally turned away and left. N.G. saw that he had a hammer on his belt. G. The Police Apprehend Defendant (October 10, 2016)
Around 4:45 a.m. on October 9, 2016, after he left N.G.'s house, defendant approached two women sitting in their front yard on Comstock Avenue. He appeared to be intoxicated and asked the women if they knew a street address. They told him no, and he kept walking toward them. One of the women told him to leave, but he kept getting closer, so the women started yelling. At that point, two young men who lived nearby ran up and said defendant was the man who had been going into people's homes. Defendant ran, the men chased him, and he fled in a white SUV with lights on top.
During the chase, defendant dropped his phone. The police arrived and retrieved defendant's phone. Defendant was arrested on October 10, 2016. The police searched his white SUV and found a hammer in its cargo area. Defendant had numerous scratches on his right arm and torso, a swollen nose, and other injuries.
The police extracted GPS data from defendant's phone, covering the period of January 23, 2016 to October 9, 2016. The GPS data showed that defendant was present at the May 15, 2016 and October 9, 2016 crime scenes. The homes of all of defendant's victims, including defendant's home on Rutland, were located within an area measuring just over one square mile.
III. DISCUSSION
A. The Record Does Not Affirmatively Show That Defendant's Jury Waiver Was Knowing, Intelligent, and Voluntary
Defendant claims the judgment must be reversed because the record does not affirmatively show that his waiver of his right to a jury trial was knowing, intelligent, and voluntary under the totality of the circumstances. We agree.
1. Relevant Background
Defendant was assisted by a Spanish interpreter throughout the proceedings. On November 2, 2018, before trial commenced on November 5, the court accepted defendant's jury waiver. The following colloquy occurred:
"THE COURT: All right. Gentlemen, I'm going to let you get out of here. This matter has—not permanently. I'll have you come back on Monday morning. It's my understanding that the parties have spoken about and, apparently, the defendant has waived his right to a jury trial.
"[THE PROSECUTOR]: He has not waived it yet. He is willing to be.
"THE COURT: He will be.
"[THE PROSECUTOR]: Yes.
"THE COURT: By your agreement, not formally on the record. Understood. . . . [¶] . . . [¶]
"[DEFENSE COUNSEL]: I can take the waiver of the jury trial right now for the record.
"THE COURT: Fine with me. Go right ahead.
"[DEFENSE COUNSEL]: Sir, you understand you have the right to have a jury trial for the charges that you're facing. Do you understand that?
"THE DEFENDANT: Yes.
"[DEFENSE COUNSEL]: Meaning, that 12 people would have to decide your verdict, whether its guilty or not guilty. Do you understand that?
"THE DEFENDANT: Yes, your honor.
"[DEFENSE COUNSEL]: And that's for each and every count and enhancement that you're charged with. Do you understand that as well?
"THE DEFENDANT: Yes.
"[DEFENSE COUNSEL]: Is it your choice to give up that right in order to have a bench trial or court trial to have this judge sitting before you today decide your verdict, whether it's not guilty or guilty, and whether or not the enhancements are true for each and every charge and enhancement? Is that your choice?
"THE DEFENDANT: Yes, sir.
"[DEFENSE COUNSEL]: I join in his waiver, your honor."
2. Applicable Legal Principles
(a) The Right to a Jury Trial
A criminal defendant has a right to a jury trial under the federal Constitution and the California Constitution. (U.S. Const., 6th Amend.; Cal. Const., art. I., § 16; People v. Sivongxxay (2017) 3 Cal.5th 151, 166 (Sivongxxay).) The California Constitution requires the waiver to be made "by the consent of both parties expressed in open court by the defendant and the defendant's counsel." (Cal. Const., art. I., § 16.) California law also requires the waiver to be expressed in the defendant's words and does not allow it to be implied by conduct. (People v. Holmes (1960) 54 Cal.2d 442, 443-444.)
The substantive standards for determining whether a defendant is making a valid wavier 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.) We uphold the validity of a jury waiver " 'if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.' " (People v. Collins, supra, 26 Cal.4th at p. 310, italics added.)
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; People v. Daniels (2017) 3 Cal.5th 961, 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. United States ex rel. McCann (1942) 317 U.S. 269, 278; see Sivongxxay, at p. 166.)
"But the 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.' " (People v. 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.)
(b) The Sivongxxay Court's Decision and Guidance
In Sivongxxay, our Supreme Court concluded that the defendant's jury waiver was knowing and intelligent under the totality of the circumstances. (Sivongxxay, supra, 3 Cal.5th at pp. 166-168.) The defendant stated his jury waiver on the record and did not claim it was coerced or otherwise involuntary. (Id. at p. 166.) Rather, he claimed his jury waiver was not knowing and intelligent because he was a Laotian refugee with no formal education and limited English skills, and he would not have understood what a jury trial entailed unless the trial court or counsel explained it to him. (Ibid.) He complained that, in its waiver colloquy, the trial court did not tell him that a jury must be impartial, that its verdict must be unanimous or that the trial court would have to declare a mistrial if the jury did not reach a verdict. (Id. at pp. 166-167.) The trial court also did not ask the defendant any questions to confirm that he understood how a jury worked or whether he had discussed his jury wavier with his counsel. (Id. at p. 167.)
The Sivongxxay court nonetheless concluded that the record affirmatively showed that the defendant's jury waiver was knowing and intelligent under the totality of the circumstances. (Sivongxxay, supra, 3 Cal.5th at pp. 167-168.) The court noted that the defendant was represented by counsel and was assisted by a translator throughout the trial, and that the defense initiated the request for a court trial. (Id. at p. 167.) In response, the trial court advised the defendant that he had " 'a right to a trial, either by a jury of 12 people selected from [the] community, through a process that [he] would engage in with [his] attorney[], the district attorney and the Court, or a trial in front of a judge, acting alone without a jury.' " (Id. at p. 165.) The trial court further advised the defendant that: " 'The burden of proof remains the same' " in court and jury trials (ibid.) and elaborated that " '[t]he district attorney has the burden to go forth with evidence sufficient to prove [the defendant's] guilt beyond a reasonable doubt. . . . In a court trial, [the judge] alone, would make the decision on whether [the] evidence was sufficient to prove [the defendant's] guilt beyond a reasonable doubt.' " (Ibid.) Finally, the court expressly asked the defendant: " 'Do you give up your right to a jury trial and agree that this Court, alone, will make those decisions?' " (Ibid.) The defendant then acknowledged that he wished to waive his right to a jury trial and allow the court alone to make those decisions. (Id. at pp. 166-167.)
Additionally, the defendant had prior experience with the criminal justice system. (Sivongxxay, supra, 3 Cal.5th at pp. 167.) He pled guilty to three prior offenses in two other states and, in entering one of those prior guilty pleas, signed a waiver that stated he "fully underst[ood]" his right to a jury trial. (Ibid.) Prior case law had acknowledged that a defendant's prior experience with the criminal justice system was relevant to the question of a knowing and intelligent jury waiver. (Id. at pp. 167-168, and case cited.) "Viewed holistically, the circumstances surrounding [the] defendant's jury waiver demonstrate[d] that it was knowing and intelligent." (Id. at p. 168.) The court rejected the defendant's argument that his jury waiver was invalid because he was not advised that a jury must be impartial or that a jury verdict must be unanimous, given the totality of the circumstances surrounding the waiver. (Id. at pp. 168-169.)
The Sivongxxay court recognized that our case law "has eschewed any rigid formula or particular form of words that a trial court must use in taking a jury waiver," but noted that other courts had "offered guidance regarding important components of the waiver colloquy." (Sivongxxay, supra, 3 Cal.5th at p. 169.) The court took the opportunity to "emphasize the value of a robust oral colloquy in evincing a knowing, intelligent, and voluntary waiver of a jury trial" and offered "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." (Ibid.)
The court advised: "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." (Sivongxxay, supra, 3 Cal.5th at p. 169.)
The court also recommended "that the trial judge take additional steps as appropriate to ensure, on the record, that the defendant comprehends what the jury trial right entails. 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." (Sivongxxay, supra, 3 Cal.5th at pp. 169-170.)
3. Analysis
The record here does not affirmatively show that defendant's jury waiver was knowing and intelligent under the totality of the circumstances. As in Sivongxxay, defendant was assisted by defense counsel and a Spanish translator at the time he made his jury waiver, and defense counsel initiated the request for a court trial. (Sivongxxay, supra, 3 Cal.5th at p. 167.) Defense counsel "took" the waiver and the trial court acted only as a passive observer while the waiver was taken.
On April 3, 2018, several months before defendant waived his right to a jury trial on November 2, 2018, defendant made a Marsden motion to replace his appointed counsel, but the motion was denied. (People v. Marsden (1970) 2 Cal.3d 118.)
Before defendant made his jury waiver, his counsel only advised him about one of the four "basic mechanics" of a jury trial, namely, that it would mean that the court, rather than a jury of 12 people, would determine whether he was guilty of the charges and enhancements. (Sivongxxay, supra, 3 Cal.5th at p. 169.) According to the record, this is all defendant was ever told or knew about a jury trial before he made his jury waiver.
The record does not show that defendant was told about any of the other "basic mechanics" of a jury trial, namely, that (1) the 12 jurors would be from the community; (2) he would be able to participate, through his counsel, in selecting the 12 jurors; or (3) the 12 jurors would have to unanimously agree on each charge and enhancement. (Sivongxxay, supra, 3 Cal.5th at p. 169.) As defendant also points out, the record does not show that he was ever told that, in a jury trial, the 12 jurors would have to determine every fact necessary for a conviction; that the 12 jurors could only return guilty verdicts and true findings based on proof beyond a reasonable doubt; and that the judge, not the 12 jurors, would sentence him.
Further, the trial court took no steps to ensure that defendant comprehended what a jury trial entailed. (Sivongxxay, supra, 3 Cal.5th at p. 169.) The court did not ask defendant any questions, 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 defendant any of "the fundamental differences between a jury trial and a bench trial." (Id. at p. 170.)
Nor did the trial court consider any of defendant's "individual circumstances" and whether those circumstances indicated that his jury waiver might not be knowing and intelligent. (Sivongxxay, supra, 3 Cal.5th at p. 170.) As defendant points out, he was unable to communicate in English, had little education, immigrated to the United States from Mexico in 2014—one to two years before the charged offenses occurred in 2015 and 2016—and had no prior experience with the criminal justice system. (Cf. Sivongxxay, at p. 167.)
Neither the information, filed in July 2017, nor the probation report, filed in January 2019, shows that defendant had a prior criminal history. A first amended information was filed on the first day of trial, November 5, 2018, and it, too, does not indicate that defendant had a prior criminal history.
For all of these reasons, the record does not affirmatively show that defendant's jury waiver was knowing and intelligent, that is, made " ' " 'with a full awareness both of the nature of the right and the consequences of the decision to abandon it.' " ' " (People v. Collins, supra, 26 Cal.4th at pp. 305, 310.) Nor does the record show that the waiver was voluntary " ' " 'in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.' " ' [Citations.]" (Id. at p. 305, italics added.)
Contrary to defendant's arguments, we do not find it significant to the validity of defendant's jury waiver that (1) several months before trial, on April 3, 2018, defendant made an unsuccessful Marsden motion to replace his appointed counsel (fn. 8, ante) or that (2) on the first day of trial, November 5, 2018, a first amended information was filed, adding the multiple victim One Strike law allegation. (Pen. Code, § 667.61, subd. (e)(4).) Nothing about the fact the Marsden motion was made, or what was said during the motion, indicates that defense counsel did not discuss the implications of defendant's jury waiver with defendant. Rather nothing in the record shows that defense counsel specifically discussed any of those implications with defendant. Nor, as defendant argues, is the filing of the first amended information, "further evidence that the [jury] waiver was taken without [his having] an adequate understanding of the charges." Like the Marsden motion, the filing of the first amended information tells us nothing concerning what defendant understood or was told concerning the charges and enhancement allegations, or any potential additional charges or enhancement allegations, at the time he made his jury waiver.
It is particularly significant that (1) defendant had no prior history or experience with the criminal justice system and had never before waived his right to a jury trial; and (2) neither defense counsel nor the trial court ever advised defendant that a jury would be comprised of 12 individuals from the community, or that defendant could participate in jury selection through his defense counsel. The absence of these factors distinguishes this case from Sivongxxay. (Sivongxxay, supra, 3 Cal.5th at p. 169.)
It is also significant that the record does not affirmatively show that defendant and his counsel ever discussed the "basic mechanics" of a jury trial, or the "fundamental differences" between a court trial and a jury trial before defendant made his jury waiver. (Sivongxxay, supra, 3 Cal.5th at pp. 169-170; cf. People v. Roles (2020) 44 Cal.App.5th 935, 950-951 [Finding jury waiver valid where, although the court did not advise defendant of "the nature of his right to a jury trial," record showed defendant and his counsel had " 'extensive' " prior discussions about court and jury trials, and the defendant had prior experience with criminal justice system.].)
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 (Blancett). In these cases, as here, the records did not affirmatively show that the defendants' jury waivers were knowingly, 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, 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.) Similarly, the record in Blancett did not show that the defendant, a mentally disordered offender facing his first civil commitment proceeding, was "legally sophisticated" or knew he was entitled to a jury trial. (Blancett, supra, 15 Cal.App.5th at p. 1206.) B. Substantial Evidence Supports Defendant's Convictions in Counts 2 and 3
In counts 2 and 3, the court found defendant guilty of committing two lewd acts on six-year-old E.R. on September 6, 2015. (§ 288, subd. (a).) Defendant claims insufficient evidence supports these convictions. Specifically, he claims E.R.'s pretrial identification of him from a six-person photo lineup is insufficient to show that he was the perpetrator of these crimes. We disagree.
1. Relevant Background
In testifying at trial in November 2018, E.R. did not identify defendant as the man who came into her house and molested her on September 6, 2015. Rather, she identified a person sitting in the gallery. She recalled, however, that the man had a droopy eye, a mustache, and a small beard. She believed he was "Mexican" based on "the way he talked [and] his skin tone." But on October 10, 2016, just over a year after the incident occurred, E.R. identified defendant from a six-person photo lineup or array, saying "it looks like him, but he changed his mustache." The detective who showed E.R. the photo array testified that E.R. took "30 seconds to a minute" to look at the six photos before she identified defendant.
During an RCAT interview on September 6, 2015, E.R. similarly described the man as having one eye that was "down." The police detective who showed E.R. the six-person photo lineup on October 10, 2016, identified defendant at trial as the person E.R. identified in the photo lineup. Following her RCAT interview, E.R. and another witness described the man to a sketch artist who made a drawing of the suspect.
2. Analysis
In considering a claim that insufficient evidence supports a criminal conviction, our standard of review is well settled. That is, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty of the challenged conviction beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) Our standard of review is the same to the extent the judgment may be based on circumstantial evidence. That is, we determine whether the entire record contains sufficient substantial evidence to support the trier of fact's findings. (See People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
The sufficiency of a pretrial, out-of-court identification to support a conviction is likewise determined under the substantial evidence test—that is, in light of all of the evidence in the entire record. (People v. Cuevas (1995) 12 Cal.4th 252, 257, 260-261, 265-266.) " 'The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on " 'isolated bits of evidence.' " [Citation.]' " (People v. Johnson (2019) 32 Cal.App.5th 26, 57.)
For several reasons, defendant claims E.R.'s pretrial photo identification of him is insufficient to show that he was the perpetrator of the two lewd act crimes against E.R. on September 6, 2015. First, he argues, E.R.'s photo identification of him was not made close in time to the incident; it was made over one year later. This "lengthy lapse of time" he argues, "weakens the evidentiary value of the identification." (See People v. Cowger (1988) 202 Cal.App.3d 1066, 1071["[A] prompt identification shortly after the commission of a crime will be more accurate than a belated identification days or weeks later."].) Second, he argues, E.R.'s photo identification of him was not a "positive identification." Instead, he argues, it was "a statement of both similarity and some dissimilarity—i.e., that the photograph 'looks like him, but he changed his mustache.' " Third, he argues, the "first time that E.R actually saw defendant . . . she testified that she was certain that [the perpetrator] was someone else," i.e., a person sitting in the gallery, rather than defendant. Fourth and lastly, he points out that, when questioned at trial about her pretrial photo identification, E.R. could not recall identifying anyone from the photos she had been shown, and she did not confirm that the photo she chose was the perpetrator.
We conclude that E.R.'s photo identification of defendant, together with additional circumstantial evidence, is sufficient to support the court's implicit determination that defendant was the person who perpetrated the two lewd acts, charged in counts 2 and 3, against E.R. on September 6, 2015. In addition to her October 10, 2016, photo identification of defendant as a person who "look[ed] like" the perpetrator but had "changed his mustache," E.R. consistently described the perpetrator, during her September 6, 2015 RCAT interview and in testifying at trial in November 2018, as appearing to be "Mexican" based on his manner of speech and skin tone, and as having a "droopy" or "down" eye, a mustache, and a small beard. E.R. also gave a detailed description of the perpetrator to a sketch artist on September 6, 2015, and the sketch artist's drawing of the perpetrator closely resembled defendant.
Additionally, the modus operandi of defendant's crimes against E.R.—he came into her home in the middle of the night and committed lewd acts—was the same modus operandi he used to commit the other charged crimes against his other victims. Those other crimes occurred in the same general area as E.R.'s home over more than a one-year period, beginning in August 2015 and ending on October 9, 2016, when defendant was finally apprehended. E.R.'s mother also testified that, later on September 6, 2015, E.R. told her mother that the perpetrator left in a white truck—the same type of vehicle that other witnesses saw defendant saw driving.
Defendant's arguments challenge the probative value and therefore the sufficiency of E.R.'s pretrial photo identification to support the conclusion that he was the perpetrator of counts 2 and 3. But based on the entire record, the court reasonably could have concluded that all of the evidence, including but not limited to E.R.'s photo identification, was sufficient to show beyond a reasonable doubt that defendant was the perpetrator. Because sufficient evidence supports defendant's convictions in counts 2 and 3, defendant may be retried on these charges. (Jones, supra, 26 Cal.App.5th at p. 437.) C. Insufficient Evidence Supports the True Finding on the Section 667 .61, Subdivision (e)(5), One-Strike Law Allegation
Defendant claims and the People agree that the court's true finding on the One Strike law allegation under section 667.61, subdivision (e)(5), must be reversed because insufficient evidence supports it. We agree.
Indeed, in finding the multiple victim allegation true (§ 667.61, subd. (e)(4)), the court said that its multiple victim finding was based on subdivision (e)(4) and (e)(5) of section 667.61.
Section 667.61, subdivision (e)(4), applies to multiple victim cases, that is, when "[t]he defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) [including lewd acts (§ 288, subd. (a)) and forcible lewd acts (§ 288, subd. (b))] against more than one victim." (§ 667.61, subd. (e)(4).) Section 667.61, subdivision (e)(5), applies when "[t]he defendant engaged in the tying or binding of the victim or another person in the commission of the present offense." (§ 667.61, subd. (e)(5).)
As the parties agree, no evidence showed that defendant engaged in the tying or binding of any of his victims or other persons in his commission of the lewd acts and forcible lewd acts in this case. It appears that the court's section 667.61, subdivision (e)(5) finding occurred simply because subdivision (e)(4) and (e)(5) of section 667.61 were pled in the first amended information under the multiple victim allegation, which read, "It is further alleged that in the present case and cases defendant committed a qualifying sex offense against more than one victim as listed in . . . section 667.61, subdivision (e)(4) & (5)." (Added italics.)
Thus, the section 667.61, subdivision (e)(5) allegation was apparently pled inadvertently and erroneously, in addition to the multiple victim allegation under subdivision (e)(4). Because insufficient evidence supports the true finding on the section 667.61, subdivision (e)(5) allegation, defendant may not be retried on it, but he may be retried on the burglary and multiple victim One Strike law allegations (§ 667.61, subds. (d)(4), (e)(2), (e)(4)), given that he does not challenge the sufficiency of the evidence supporting the true findings on those One Strike law allegations. (See People v. Morgan (2007) 42 Cal.4th 593, 613.)
IV. DISPOSITION
The judgment is reversed. Defendant may not be retried on the One Strike law allegation under section 667.61, subdivision (e)(5). He may, however, be retried on all of the charges (counts 1 through 9), and on the other One Strike law allegations (§ 667.61, subds. (d)(4), (e)(2) [burglary] and (e)(4) [multiple victim]) alleged in the first amended information filed on November 5, 2018.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: McKINSTER
Acting P. J. MENETREZ
J.