The People v. Guzman CA3

Filed 9/30/13 P. v. Guzman CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Mono) ----

THE PEOPLE, C071557

Plaintiff and Respondent, (Super. Ct. No. MFE06005704) v.

JORGE GUZMAN,

Defendant and Appellant.

Defendant was found in possession of methamphetamine and a stolen laptop in a 2006 traffic stop. He was charged in Mono County with second degree burglary and a warrant for his arrest was issued the following day. Six years later in 2012, he was convicted of receiving stolen property in this case following a court trial. The trial court sentenced defendant to a three-year state prison term concurrent to another prison term in an unrelated case. On appeal, defendant contends: 1) prosecution was barred by the statute of limitations; 2) prosecution was barred under Penal Code section 654 and Kellett v.

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Superior Court (1966) 63 Cal.2d 822; 3) the trial court did not obtain a waiver of defendant’s right to jury trial; and 4) ineffective assistance of counsel. Addressing only the third contention, we reverse the judgment of conviction and remand for further proceedings. BACKGROUND In October 2006, defendant was stopped near Bishop, California for driving over 100 miles per hour. A computer stolen from a resort in Mono County was found in the trunk, along with methamphetamine and indicia of drug sales. After his 2006 arrest in this case defendant was prosecuted in Inyo County for drug possession in an unrelated case in which he pled no contest and was sentenced to six years in state prison on February 8, 2007. On February 9, 2012, defendant, who was then serving a state prison term in an unrelated case from Los Angeles County, sent a demand for trial on the 2006 burglary charge to the Mono County District Attorney. Defendant was transported to Mono County and a preliminary examination on the second degree burglary charge was held on April 10, 2012. The trial court determined there was insufficient evidence to hold defendant over for burglary, but held defendant over on an added count of receiving stolen property. During a pretrial conference, defense counsel told the trial court defendant was prepared to waive his right to a jury trial and have a court trial. The prosecutor and the trial court accepted the waiver. Defendant was present at the hearing; he was not advised of his right to a jury trial and did not give an oral or written waiver of that right. Defendant was subsequently tried and convicted in a bench trial. DISCUSSION Defendant contends his conviction must be reversed because he was tried by the trial court without giving an adequate waiver of his right to a jury trial. The People concede the point. We accept the concession.