California Court of Appeal Jan 23, 2015 No. D064644Unpublished
Filed 1/23/15 P. v. Aldridge CA4/1
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assault with a caustic chemical (bleach) (count 3: § 244); and (4) misdemeanor
vandalism (count 4: § 594, subds. (a), (b)(2)(A)). The court also found to be true a
sentence enhancement allegation that Aldridge personally used a deadly weapon (§
12022, subd. (b)(1)), a knife, in the commission of count 1.
In September 2013 the court sentenced Aldridge in that case to a total state prison
term of four years eight months, consisting of the middle term of three years for her
conviction of count 1, plus one year for the true finding on the count 1 deadly weapon
allegation, plus eight months (one-third the middle term) for her conviction of count 3.
In the same sentencing proceeding, in People v. Aldridge (Super. Ct. San Diego
County, 2013, No. SCE323810), the court revoked the probation Aldridge had been
granted less than a year earlier after she pleaded guilty to two counts of stalking (§ 646.9,
subds. (a), (b)) the same two people─her husband, Jonathan Aldridge (hereafter her
husband) and his girlfriend, Pashion Ferrara ─she victimized in the current offenses. The
1 Although the trial court minutes, the abstract of judgment and the notice of appeal identify defendant as "Tammie Terrell Wicker," it was determined below that her true name is "Tammie Terrell Aldridge." We refer to her by her true name.
2 All further statutory references are to the Penal Code unless otherwise specified. 2
court imposed the low term of 16 months on one of the stalking charges and two years on
the other, for a total of three years four months, to be served concurrently with the
sentence imposed for the current offenses.
Aldridge appeals, contending (1) the court violated her federal and state
constitutional rights to a jury trial and to due process by abandoning its neutral role and
improperly inducing her to waive her right to a jury trial through the implied promise of a
benefit in exchange for her jury trial waiver; and (2) the court erred in ordering her to pay
a penalty assessment in conjunction with the restitution fine it imposed under section
1202.4, subdivision (b) (hereafter section 1202.4(b)). The Attorney General
acknowledges the court improperly imposed the penalty assessment.
For reasons we shall explain, we strike the imposition of the penalty assessment in
case No. SCD247909, but affirm the judgment in all other respects.
FACTUAL BACKGROUND3
On June 17, 2012, Aldridge first learned of her husband's relationship with
Ferrara. On May 4, 2013, Aldridge stabbed her husband in his left forearm with a knife,
and threw the contents of a cup─a liquid that smelled like bleach─into his face, causing
his eyes to burn. Aldridge stabbed the tires of her husband's car.
3 As Aldridge does not challenge the sufficiency of the evidence in the current case (SCD247909), and most of the underlying facts in this case are not relevant to the two issues raised in this appeal, our summary of the factual background is very brief. 3
DISCUSSION
I. JURY TRIAL WAIVER
Aldridge first contends the court violated her federal and state constitutional rights
to a jury trial and to due process by abandoning its neutral role and improperly inducing
her to waive her right to a jury trial through the implied promise of a benefit in exchange
for her jury trial waiver. We reject this contention.
A. Background
The People filed a pretrial motion seeking admission of evidence of Aldridge's
prior acts of domestic violence. The motion detailed her violent and persistent
harassment of her husband and Ferrara and members of Ferrara's family.
At a hearing in this matter the court noted on the record that "there [had been]
some talk in chambers that [Aldridge] might want to consider waiving the jury trial."
The court told Aldridge she had the right to waive the jury trial, that only she could waive
it, and that, if she waived a jury trial, "it would be a bench trial and I would sit as judge
and jury so you need to think about what you want to do in that regard if you want to go
ahead with trial."
The court reminded Aldridge that she had rejected the People's offer to plead
guilty to something less than the crimes charged against her, and the offer had since been
revoked so her only option was to plead to all charges or go to trial. The court then asked
Aldridge, "So do you think . . . you want to resolve it or do you want to have myself [sic]
or a jury try the case?" Aldridge tried to hand the court a letter, but the court informed
her it could not receive communications directly from her without discussing the matter
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with her attorney. Defense counsel said, "It's not okay with me, Your Honor. I haven't
seen it yet."
Aldridge then told the court her attorney was "not trying to help [her]." The court
then held a brief Marsden4 hearing and, in a ruling Aldridge does not challenge on
appeal, denied her request for new appointed counsel.
When proceedings resumed in open court following the Marsden hearing, the
court indicated to Aldridge that the case had been assessed by several judges, the
prosecutor, and her defense attorney. The court said, "[If] it was blatantly not worthy of
being in court, it would probably have been thrown out by now." The court indicated that
the crimes she was accused of committing, including stabbing someone and throwing a
caustic chemical at him, were serious charges that involved "fairly egregious facts" and
were not simply going to be "drop[ped]." Aldridge interjected, "He was choking me, I
had to get him off." The court responded, "But you have to think, do you want a jury to
hear all that, which is going to sound terrible to hear all that stuff, or do you want a judge
to hear it . . . ?" The court reminded Aldridge she was running out of time to "settle" the
case, if that was what she desired to do, and he urged her to consider the matter over the
lunch hour.
When the hearing resumed following the lunch recess, Aldridge told the court in
the presence of her counsel that she wanted a bench trial. The following exchange then
took place between the court and Aldridge:
4 People v. Marsden (1970) 2 Cal.3d 118. 5
"[The court]: All right, so it is your desire to have a bench trial. Is that correct?
"[Aldridge]: Yes.
"[The court]: So it's your desire[.] [Y]ou know you have the constitutional right under both the California and United States Constitution to a jury trial by a jury of your peers? [¶] You understand that, correct?
"[Aldridge]: Yes.
"[The court]: But it's your desire to waive your right to a jury trial, and have the court decide the case otherwise known as a bench trial where the judge sits as judge of the law, and judge of the facts. Is that what you want to do?
"[Aldridge]: Yes.
"[The court]: So you want to waive your right to a jury, is that correct?
"[Aldridge]: Yes.
"[The court]: Okay. Then that's what we'll do."
B. Applicable Legal Principles
The California Supreme Court has explained that "[t]he Sixth Amendment, made
applicable to the states . . . by the Fourteenth Amendment of the federal Constitution,
confers upon a defendant in a criminal prosecution the right to a trial by jury. [Citations.]
The right to a trial by jury is recognized to be a 'fundamental constitutional right.'
[Citations.] Similarly, 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. Collins (2001)
26 Cal.4th 297, 304 (Collins).) A defendant's waiver of the right to jury trial may not be
accepted by the court unless it is "knowing" and "intelligent," that is, made with full
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awareness both of the nature of the right being abandoned and the consequences of the
decision to abandon it, and made voluntarily in the sense that it was the product of a free
and deliberate choice rather than intimidation, coercion, or deception. (Id. at p. 308.) In
the process of obtaining a defendant's waiver of his or her constitutional right to a jury
trial, the trial court may not act "in a manner that [is] at odds with its judicial obligation
to remain neutral and detached in evaluating the voluntariness of the waiver." (Id. at p.
309.)
In a criminal prosecution, a defendant's waiver of the right to a jury trial is not
effective unless defense counsel consents to the waiver. (Cal. Const., art. I, § 16 ["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."].)
Defense counsel's consent to the defendant's waiver of the right to a jury trial may
be express or implied. (19A Cal.Jur.3d (2009) Criminal Law: Rights of the Accused,
§ 267, p. 493.) Furthermore, where the trial court has received from the defendant an
express verbal waiver of his or her right to trial by jury and defense counsel states
nothing regarding the waiver, defense counsel's acquiescence will be given effect as an
counsel and/or the prosecutor state nothing in regard to the waiver, 'the acquiescence of
defense counsel and the prosecutor will be given effect as implied waivers.'"]; accord,
People v. Evanson (1968) 265 Cal.App.2d 698, 701 (Evanson) ["[I]t is settled that where
an express waiver has been received from the defendant, the acquiescence of defense
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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."].)
C Analysis
In support of her claim of constitutional error, Aldridge complains that the court
described allegations against her as "fairly egregious facts" and that the court asked her,
"[D]o you want a jury to hear all that, which is going to sound terrible to hear all that
stuff, or do you want a judge to hear it . . . ?" Citing Collins, supra, 26 Cal.4th 297, she
asserts that, "[i]n doing so, the court crossed the line and abandoned the neutral and
detached role which is the essence of a judge," and it improperly sought to persuade her
to waive her right to a jury trial.
We reject Aldridge's claim of constitutional error. The record shows that
Aldridge, who was represented by counsel, made an informed, intelligent, and voluntary
decision to waive her constitutional right to a jury trial. The remarks by the court to
which she takes exception do not show the court improperly sought to persuade her to
waive her right to a jury trial by implicitly promising her some benefit in exchange for
that waiver. The court's remarks were simply an acknowledgement of the obvious reality
that the nature of the charged offenses, combined by the prosecution's evidence of prior
acts of domestic violence, would "sound terrible" to a jury.
Aldridge's reliance on Collins, supra, 26 Cal.4th 297, is unavailing. In that case,
the California Supreme Court concluded that the trial court, by advising the defendant
that he "would receive 'some benefit' if he waived his right to a jury trial" (id. at p. 300),
"induced [the] defendant to waive his right to jury trial render[ing] that waiver
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involuntary." (Id. at p. 312.) Here, the record does not show that the court made any
such promise.
Last, although Aldridge's waiver of the right to a jury trial would have been
ineffective had her trial counsel failed to consent to the waiver (Cal. Const., art. I, § 16),
the record shows that defense counsel impliedly consented to Aldridge's waiver. As
already discussed, defense counsel's consent to the defendant's waiver of the right to a
jury trial may be express or implied (19A Cal.Jur.3d, supra, Criminal Law: Rights of the
Accused, § 267, p. 493.) and defense counsel's acquiescence will be given effect as an
implied waiver (Peace, supra, 107 Cal.App.3d at p. 1008; Evanson, supra, 265
Cal.App.2d at p. 701). Here, the record shows that Aldridge's trial counsel acquiesced in
her waiver of her right to a jury trial. Both Aldridge and her counsel were present at the
hearing on the issue of whether Aldridge wanted to waive that right. After both counsel
made their appearances, the court began by observing that "there [had been] some talk in
chambers that [Aldridge] might want to consider waiving the jury trial." Following the
brief Marsden hearing, the court made its comment about the nature of the allegations
and told Aldridge, "[T]hink about all this over lunch, we'll bring you back at 1:30. I'll
need a decision at that time as to whether or not you want to settle it or what . . . you
want. You've got to start seriously thinking about it because you're running out of time."
The hearing resumed after the lunch recess and, with both counsel present, Aldridge
waived her right to a jury trial. The court then canceled the jury trial and asked both
counsel, "Anything further on the jury trial issue?" The prosecutor responded, "No, just
for the record, the People don't oppose that. So . . . [¶] [w]e will accept the waiver and
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scheduling is the next question." The court told both counsel that it was "able to start [the
bench trial] this afternoon," and then asked, "Is that okay with both counsel?" Defense
counsel responded, "That's fine with me." The foregoing record establishes that defense
counsel acquiesced in Aldridge's waiver of her right to a jury trial and the waiver was
effective. (Peace, supra, 107 Cal.App.3d at p. 1008; Evanson, supra, 265 Cal.App.2d at
p. 701.)
For all of the foregoing reasons, we affirm Aldridge's conviction.
II. PENALTY ASSESSMENT
Aldridge also contends the court erred in ordering her to pay a penalty assessment
in conjunction with the restitution fine it imposed under section 1202.4(b). The record
shows that, at sentencing, the court ordered her to "pay [a] restitution fine pursuant to
[section 1202.4(b)] in the amount of $3,360, plus [a] penalty assessment." The Attorney
General acknowledges, and we agree, that the court improperly imposed the penalty
assessment. Subdivision (e) of section 1202.4 specifically provides that "[t]he restitution
fine shall not be subject to penalty assessments . . . ." Accordingly, we conclude the
imposition of a penalty assessment must be stricken.
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DISPOSITION
The penalty assessment imposed in case No. SCD247909 is stricken. In all other
respects the judgment is affirmed.
NARES, J.
WE CONCUR:
BENKE, Acting P. J.
AARON, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant's waiver of her right to a jury trial was knowing, intelligent, and voluntary, and that the trial court did not improperly induce the waiver. The court also held that the trial court erred by imposing a penalty assessment on a restitution fine, which is prohibited by statute.
Issues
Did the trial court violate the defendant's constitutional rights by improperly inducing a jury trial waiver?
Did the trial court err by imposing a penalty assessment on a restitution fine under Penal Code section 1202.4(b)?
Disposition. Reversed in part; affirmed in part.
Quotations verified verbatim against the opinion
“The record shows that Aldridge, who was represented by counsel, made an informed, intelligent, and voluntary decision to waive her constitutional right to a jury trial.”
“Subdivision (e) of section 1202.4 specifically provides that "[t]he restitution fine shall not be subject to penalty assessments . . . ."”