Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS071594
McAdams, J.
After a court trial, defendant Wilbert Suber was convicted of voluntary manslaughter, assault with a deadly weapon, and carrying a concealed, loaded firearm. (Pen. Code, §§ 192, subd. (a); 245, subd. (b); 12025, subd. (a)(1); 12031, subd. (a)(1).) The court also found true sentence enhancement allegations based on personal firearm use. (Id., §§ 12022.5, subd. (a); 12022.7, subd. (a).) On appeal, defendant makes three assertions: (1) his jury trial waiver was invalid, because his counsel did not expressly join it; (2) his jury trial waiver was invalid, because the record does not demonstrate that it was knowing, intelligent, and voluntary; and (3) the abstract of judgment must be corrected to reflect the fines actually ordered by the court. The People dispute the first two points, but they concede clerical error in the abstract of judgment.
For reasons explained below, we agree with the People. Accordingly, we will order that the abstract of judgment be modified to reflect the fines actually ordered by the court. As so modified, we will affirm the judgment.
BACKGROUND
In May 2007, defendant shot and killed his daughter’s boyfriend. Defendant’s daughter was injured in the incident, struck in the chest with a bullet that apparently ricocheted.
An amended information filed in August 2007 charged defendant with murder and other crimes arising out of the shooting. (Pen. Code, §§ 187, subd. (a) [count 1, murder]; 192, subd. (a) [count 2, voluntary manslaughter as a lesser included offense]; 664/422 [count 3, attempted criminal threats]; 245, subd. (b) [count 4, assault with a deadly weapon, a semiautomatic firearm]; 12025, subd. (a)(1) [count 5, carrying a concealed weapon in a vehicle]; 12031, subd. (a)(1) [count 6, carrying a loaded, unregistered firearm].) As sentence enhancements, the amended information alleged that defendant personally used a firearm and that he inflicted great bodily injury. (§§ 12022.5, subd. (a); 12022.7, subd. (a).)
Further unspecified statutory references are to the Penal Code.
Pretrial Jury Waiver
At a pretrial hearing held on August 30, 2007, the following colloquy took place:
“[DEFENSE COUNSEL]: Your Honor, we have no objection to filing of the Amended Complaint. The plea is not guilty to all counts; all enhancements are denied; time is not waived. My client does, however, intend to waive jury and request that the matter proceed as a Court trial. [¶] THE COURT: Mr. Suber, do you wish to give up your right to have a jury trial in this case? [¶] THE DEFENDANT: Yes, I do, your Honor. [¶] THE COURT: The People wish to waive as well?. [¶] [THE PROSECUTOR]: We do, your Honor. The one thing I want to make clear here is our plans for the dates … concerned.” After a discussion about trial dates, vacations, and other timing issues, defense counsel indicated agreement that trial “could be recessed. But we are not waiving time for the start date. We expect this trial to be started on September 20.”
In a trial brief filed on September 20, 2007, defense counsel confirmed the jury waiver, saying: “Defendant has waived jury, and the case will proceed to court trial ….”
Conviction
At the conclusion of trial, the court acquitted defendant of murder and attempted criminal threats. (§§ 187, subd. (a); 664/422.) But it convicted him of voluntary manslaughter; assault with a deadly weapon; carrying a concealed weapon; and carrying a loaded firearm. (§§ 192, subd. (a); 245, subd. (b); 12025, subd. (a)(1); 12031, subd. (a)(1).) The court also found true that defendant personally used a firearm and that he inflicted great bodily injury. (§§ 122022.5, subd. (a); 12022.7, subd. (a).)
Sentencing
In December 2007, defendant was sentenced to a total of 10 years in prison.
At the sentencing hearing, the court imposed a restitution fund fine, and a parole revocation fine, which it suspended. (§§ 1202.4, subd. (b); 1202.45.) The court stated that it was imposing “a fine of $200 for each year of incarceration, pursuant [to] 1202.4(b), an additional $200, suspended, pursuant to 1202.45, and $80 court security fee.” The abstracts of judgment – one filed in December 2007 and a second filed in January 2008 – reflect the imposition of fines of $10,000 under each of the two sections.
Appeal
Defendant brought this timely appeal.
As noted above, defendant raises three contentions on appeal: (1) that his jury trial waiver is invalid for lack of express consent by his attorney; (2) that the record fails to demonstrate that his jury waiver was made knowingly, intelligently, and voluntarily; and (3) that the abstract of judgment must be corrected to reflect the fines actually imposed.
DISCUSSION
We consider defendant’s three arguments in turn. As to each, we first describe and then apply the governing principles of law.
I. Validity of Counsel’s Consent to Jury Trial Waiver
In his first argument, defendant challenges the validity of his jury waiver on the ground that his counsel did not expressly consent to it. The People dispute this contention.
A. Legal Principles
The California Constitution, article I, section 16, provides in relevant part: “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.” In effect, this provision requires a waiver by the defendant, with consent by his counsel. (People v. Upshaw (1974) 13 Cal.3d 29, 34 [“defense counsel must consent to the jury waiver”].)
1. The Defendant’s Waiver
“The right to trial by jury in a criminal case is a sacred one and accordingly the method of waiver provided in the Constitution must be strictly followed.” (People v. Pechar (1955) 130 Cal.App.2d 616, 617.) The governing constitutional provision “explicitly requires the defendant’s personal and express waiver in open court.” (People v. Collins (2001) 26 Cal.4th 297, 308.)
The waiver must be made by the defendant personally, because “this inviolate constitutional right” belongs to him. (People v. Garcia (1929) 98 Cal.App. 702, 704.) Furthermore, the defendant’s jury trial waiver must be expressed in the form of words; it “will not be implied from a defendant’s conduct.” (People v. Holmes (1960) 54 Cal.2d 442, 444; accord, People v. Ernst (1994) 8 Cal.4th 441, 445.) The purpose of these requirements is to “protect against inappropriate incursions on a defendant’s exercise or waiver of a fundamental constitutional right, such as that to jury trial ….” (People v. Collins, supra, 26 Cal.4th at p. 307.)
2. Counsel’s Consent
“The defendant’s right to waive trial by jury is not unilateral; the prosecutor and defense counsel must both concur.” (5 Witkin & Epstein, Cal. Criminal Law (3rd ed. 2000) Criminal Trial, § 454, p. 651; Cal. Const., art. 1, § 16; People v. Upshaw, supra, 13 Cal.3d at p. 34.) In other words, “a defendant does not have a constitutional right to waive a jury trial over his counsel’s objections.” (People v. Peace (1980) 107 Cal.App.3d 996, 1007.)
Although the defendant’s waiver must be express, counsel’s consent need not be. “Such waiver may be expressed by any word or act that clearly indicates to the court the wishes of counsel.” (People v. Pughsley (1946) 74 Cal.App.2d 70, 71[conduct by deputy district attorney indicated “that the People waived a trial by jury”].) As stated in Evanson, a case decided in 1968, “it is settled that where an express waiver has been received from the defendant, the acquiescence of defense counsel and the prosecutor will be given effect as implied waivers. It is only the waiver of the defendant himself that must be expressed in language.” (People v. Evanson (1968) 265 Cal.App.2d 698, 701.) Numerous prior appellate decisions are to the same effect. (People v. Marshall (1960) 184 Cal.App.2d 535, 537-538 [defendant personally waived jury trial, no discussion of consent by defense counsel or prosecutor]; Campbell v. Municipal Court (1960) 183 Cal.App.2d 790, 794 [defendant’s unequivocal expression of waiver of jury trial right in presence of counsel, who continued to represent defendant, showed counsel joined in waiver]; People v. Brooks (1957) 154 Cal.App.2d 631, 634 [same]; People v. McCord (1945) 72 Cal.App.2d 223, 226 [same]; People v. Corsalini. (1941) 46 Cal.App.2d 704, 706 [same]; People v. Noland (1939) 30 Cal.App.2d 386, 388-389 [same]; People v. Smith (1945) 71 Cal.App.2d 555, 556 [following express waiver by defendant, joined by prosecutor, defense “counsel’s stipulation that, ‘the only question involved is as to the degree’ ” was clear manifestation of counsel’s consent to jury waiver].)
B. Application
Here, defendant’s trial counsel acquiesced in his client’s explicit jury trial waiver when he advised the trial court that defendant intended “to waive jury and request that the matter proceed as a Court trial.” Counsel indicated no opposition to defendant’s decision to waive a jury, and he later confirmed the waiver in a trial brief filed the following month.
This case is similar to Brooks, where defense counsel stated: “ ‘The defendant desires to waive his right to trial by jury, your Honor.’ ” (People v. Brooks, supra, 154 Cal.App.2d at p. 634.) That statement was held to be a sufficient joinder by counsel in the defendant’s waiver. (Ibid.) As the court said: “Clearly, if the defendant unequivocally expresses his waiver of a jury trial in the presence of his counsel and his counsel thereafter continues to represent him throughout the trial without indicating any objection, then his counsel has in effect joined in the waiver.” (Ibid.)
Under Brooks, the statements made by counsel here are a sufficient indication of his consent to defendant’s jury waiver. Defendant urges us to reject this longstanding authority, arguing that it conflicts with the governing constitutional provision. We are not persuaded by defendant’s arguments.
Contrary to defendant’s contentions, the specific language of the constitutional provision does not dictate any particular mode for counsel’s concurrence. It simply requires “consent … expressed in open court….” (Cal. Const., art. 1, § 16.) In our view, those words do not specify the manner by which consent must be expressed. “The Constitution does not provide how the ‘consent,’ referred to therein shall be expressed, whether in writing, orally, directly, indirectly or otherwise.” (People v. Smith, supra, 71 Cal.App.2d at p. 556; see People v. Pughsley, supra, 74 Cal.App.2d at p. 71.)
Nor do we agree that these cases are wrongly decided. The cited authority represents a long line of cases decided under the identically worded predecessor to the pertinent constitutional provision (Cal. Const., art. I, former § 7). So far as we are aware, there are no cases holding to the contrary. (Cf. People v. Upshaw, supra, 13 Cal.3d at p. 34 [defense counsel objected to waiver]; People v. Peace, supra, 107 Cal.App.3d at p. 1007 [same].)
This long line of cases has not been overruled or disapproved by the California Supreme Court. Nor has it been undermined by language in later California Supreme Court decisions, as defendant contends. Defendant particularly relies on People v. Vera (1997) 15 Cal.4th 269. In that case, our high court observed: “The requirement [of article I, section 16] that a defendant and defense counsel personally and expressly waive the right to jury trial describes the manner in which a criminal defendant who wishes to waive this ‘inviolate’ right may do so, and constitutes the only method by which the constitutional right to jury trial may be waived in a criminal case.” (Id. at p. 278.) As defendant acknowledges, this statement was merely dicta, since Vera involved the right to a jury on a trial concerning prior convictions. (Id. at p. 277.) Furthermore, Vera is distinguishable, since it involved the defendant’s waiver, not his counsel’s. (Id. at p. 274; see People v. Brooks, supra, 154 Cal.App.2d at p. 634.) For all of these reasons, we cannot agree that Vera affected the settled state of the law on this issue.
For similar reasons, we are not persuaded by defendant’s analogy to cases involving fewer than 12 jurors. We recognize that these cases arise under the same provision. “The defendant’s power to entirely waive a jury trial includes the power to waive some aspect of it.” (5 Witkin & Epstein, Cal. Criminal Law, supra, Criminal Trial, § 456, p. 653.) And as stated in the Maes case: “This constitutional requirement is rigidly applied.” (People v. Maes (1965) 236 Cal.App.2d 147, 148.) But as Maes makes clear, the issue in that case was the personal expression in words by the defendant. (Ibid.) In the court’s words: “Consent by counsel is not enough [citation]. Expression of defendant’s consent must be by language, and not merely by conduct [citation].” (Ibid.; see also, e.g., People v. Ames (1975) 52 Cal.App.3d 389, 391-392; People v. Rodriguez (1959) 175 Cal.App.2d 56, 60-61.) These cases concern only the defendant’s waiver; they do not involve counsel’s consent. For that reason, they do not support defendant’s proffered interpretation of article I, section 16, that counsel’s expression of consent must take a certain verbal form.
Nor do policy considerations compel defendant’s interpretation. A criminal defendant is in a different position from his counsel, since it is his constitutional right to jury trial that is at stake. (People v. Garcia, supra, 98 Cal.App. at p. 704.) “The theory is that the guarantee is essentially for the defendant’s benefit, and the defendant may refuse its protection by an effective express waiver, provided that defense counsel and the prosecutor consent.” (5 Witkin & Epstein, Cal. Criminal Law, supra, Criminal Trial, § 452, p. 647.) Sound policy and the goal of protecting fundamental constitutional rights require that courts do not infer a jury waiver from a defendant’s silence. (People v. Holmes, supra, 54 Cal.2d at pp. 443-444.) But the same considerations do not prohibit a court from inferring consent from the conduct of defense counsel in circumstances like those presented here.
In light of the above, we agree with the People that defense counsel’s acquiescence in defendant’s explicit waiver of the right to jury trial must be given the effect of an implied consent.
II. Validity of Defendant’s Jury Trial Waiver
Defendant next argues that his jury waiver was invalid, because the record does not support a finding that it was given knowingly, intelligently, and voluntarily. The People disagree.
A. Legal Principles
As a matter of constitutional imperative, “a defendant’s waiver of the right to jury trial may not be accepted by the court unless it is knowing and intelligent … as well as voluntary….” (People v. Collins, supra, 26 Cal.4th at p. 305.) “It is probably the better practice for the trial judge, by inquiry, to make sure that the defendant understands the right to a jury trial.” (5 Witkin & Epstein, Cal. Criminal Law, supra, Criminal Trial, § 452, p. 648.) But such an inquiry is not required whenever a jury is waived in favor of a full court trial. (People v. Langdon (1959) 52 Cal.2d 425, 432-433; People v. Spates (1959) 53 Cal.2d 33, 35-36; cf. Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605 [requiring advisements and express waivers in “guilty plea and submission cases”].)
Under longstanding California Supreme Court authority, there is “no duty on the trial court to inquire into the waiver of a jury trial by defendant unless the trial judge had some reason … to think that defendant did not understand the nature of the waiver.” (People v. Langdon, supra, 52 Cal.2d at pp. 432-433.) “The trial court in a criminal case is not required to explain to the defendant the nature and consequence of his action in waiving a jury trial where he is … represented by counsel and fails to show that either he or his counsel was misled as to the result which might occur from his waiving a jury trial.” (People v. Golston (1962) 58 Cal.2d 535, 538-539; see also, e.g., People v. Lookadoo (1967) 66 Cal.2d 307, 311.)
B. Application
As defendant observes, “there was no advisement or colloquy whatsoever” when he waived his right to jury trial. Contrary to defendant’s contention, however, that fact alone is no basis for setting aside his waiver. In this case, defendant was represented by counsel at the time that he explicitly waived his constitutional right to a jury. Furthermore, nothing in this record suggests that defendant lacked understanding of what he was doing.
In those respects, this case is factually similar to People v. Langdon, supra, 52 Cal.2d 425. As the court said in that case: “There is nothing in the record to support the proposition that the trial court should have explained to defendant the nature and possible consequence of his action in waiving a jury trial. Defendant was represented by counsel, and he fails to indicate anything in the record to show that either he or his counsel was misled as to the result which might occur from his waiving a jury trial.” (Id. at p. 432.) Under those circumstances, the court has no duty to inquire into the jury waiver. (Id. at pp. 432-433.) “Defendant should not be allowed to waive a jury trial, take his chances before a trial court, and then when he finds himself dissatisfied with the result, be allowed to predicate error upon such technicality or vague possibility of misunderstanding.” (Id. at p. 433; accord, People v. Golston, supra, 58 Cal.2d at p. 539.)
The same holds true here.
III. Error in the Abstract of Judgment
In his final argument on appeal, defendant asserts that the abstract of judgment must be corrected to reflect the fines actually ordered by the court at the December 2007 sentencing hearing. The People concede that the abstracts of judgment do not reflect the court’s decision concerning fines, as expressed orally at the sentencing hearing.
As noted above, when it sentenced defendant, the court imposed a restitution fund fine and a suspended parole revocation fine. (§§ 1202.4, subd. (b); 1202.45.) With respect to the restitution fund fine, the court stated that it was imposing “a fine of $200 for each year of incarceration, pursuant [to] 1202.4(b)….” Since defendant was sentenced to 10 years in prison, the court’s oral order results in a restitution fund fine of $2,000. As for the parole revocation fine, the court ordered “an additional $200, suspended, pursuant to 1202.45….” In contrast to the court’s oral pronouncements, the abstracts of judgment reflect the imposition of fines of $10,000 under each of the two sections.
“When there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.” (People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3.) As more specifically pertinent here, “an abstract of judgment must reflect a restitution fine a sentencing court has orally imposed under section 1202.4, subdivision (b).” (People v. Mitchell (2001) 26 Cal.4th 181, 185-186, discussing People v. Hong (1998) 64 Cal.App.4th 1071, 1080.) Since a parole revocation fine in the same amount must be imposed, the abstract of judgment must reflect that as well. (People v. Smith (2001) 24 Cal.4th 849, 853.)
Applying these principles to the facts before us, we conclude that the People’s concession is well-taken. The abstract of judgment should be corrected to reflect a restitution fund fine in the amount of $2,000, and a suspended parole revocation fine in the same amount.
DISPOSITION
The abstract of judgment is ordered modified to state that the amounts of both the restitution fine (§ 1202.4, subd. (b)), and the suspended parole revocation fine (§ 1202.45), are $2,000. As so modified, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward it to the Department of Corrections.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.