People v. Hernandez CA2/6

Filed 2/18/25 P. v. Hernandez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B331829 (Super. Ct. No. 2021014197) Plaintiff and Respondent, (Ventura County)

v.

ANGELITA HERNANDEZ,

Defendant and Appellant.

Angelita Hernandez appeals following a bench trial at which the court found her guilty of receiving stolen property over $950 (Pen. Code, § 496, subd. (a).)1 Appellant admitted special allegations of a prior strike (§ 667, subd. (c)(1), (e)(1)), a prior serious or violent felony requiring prison (§ 1170, subd. (h)(3)), and ineligibility for probation (§ 1203, subd. (e)(4)). The court sentenced appellant to two years, eight months in prison.

1 Undesignated statutory references are to the Penal Code.

Appellant contends her jury trial waiver was not voluntary, knowing, or intelligent. We will reverse because we conclude appellant’s waiver was not knowing and intelligent. FACTUAL AND PROCEDURAL BACKGROUND The jury waiver colloquy in this case transpired as follows: “The Court: Matter has been sent here for jury trial. Had a brief discussion with counsel in chambers. I think it appears that your client is willing to waive jury; is that correct? “[Appellant’s Counsel]: That’s correct, your Honor. “The Court: [Appellant], you have a right to have a jury trial by 12 people from the community, the right to cross-examine and confront witnesses, the right not to testify, and the right to present your own evidence. Do you understand those rights? “[Appellant]: Yes, sir. “The Court: Willing to give up those rights? “[Appellant]: Yes, sir. “The Court: Do you have questions? “[Appellant]: Not at this time. Thank you. “The Court: We will show jury trial has now been waived. “[Appellant’s Counsel]: Counsel joins in the waiver. “The Court: Counsel joins in the waiver.” The court then proceeded to motions in limine. DISCUSSION We conclude that, under the totality of the circumstances, appellant’s jury trial waiver was not knowing and intelligent. (People v. Sivongxxay (2017) 3 Cal.5th 151, 166 (Sivongxxay).) The federal and state constitutions afford defendants the right to a jury trial. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16.) However, 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.)