People v. Sivongxxay (2017) · DecisionDepot

People v. Sivongxxay

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
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California Supreme Court Jun 19, 2017 No. S078895Published

Before: Cantil-Sakauye

Filed 6/19/17

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, ) ) Plaintiff and Respondent, ) ) S078895 v. ) ) VAENE SIVONGXXAY, ) ) Fresno County Defendant and Appellant. ) Super. Ct. No. F97590200-2 ____________________________________)

Following a bench trial, defendant and appellant Vaene Sivongxxay was convicted of one count of first degree murder (Pen. Code, § 187),1 13 counts of robbery (§§ 211, 212.5), and two counts of attempted robbery (§§ 664, 211, 212.5). The trial court found true the special circumstance allegation that defendant committed the murder during the commission of a robbery. (§ 190.2, subd. (a)(17)(A).) At the conclusion of the penalty phase bench trial, the court imposed a verdict of death. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) We affirm the judgment in its entirety. I. FACTS Defendant was tried jointly with codefendant Oday Mounsaveng. Both defendants were tried by a judge sitting without a jury.

1 All subsequent statutory references are to the Penal Code.

SEE CONCURRING & DISSENTING OPINIONS

A. Guilt Phase

1. Prosecution Evidence Defendant and Mounsaveng committed a series of robberies in Fresno between July and December 1996.

a. Thanh Tin Jewelry Attempted Robbery On July 31, 1996, Mounsaveng walked into the Thanh Tin Jewelry store, asked to examine a gold chain, and then left. He returned with defendant about an hour later. The men looked around for a long time without buying anything. Liem Phu Huynh, the owner of the jewelry store, asked the men why they were taking so long. Mounsaveng and defendant claimed they were brothers and were waiting for their sister to arrive. Eventually, they left. When defendant and Mounsaveng returned to the store later that afternoon, Huynh was working in a back room, and his wife Phung Ngoc Ho was behind the sales counter. After asking to examine several items, Mounsaveng pulled a handgun out of his waistband, grabbed Ho by the collar, and pointed the gun at her. Huynh, who was watching from the back room, set off an alarm. Mounsaveng and defendant fled.

b. First JMP Mini-Mart Robbery On the afternoon of August 16, 1996, Bobbie Her was working behind the counter at her parents‘ convenience store, JMP Mini-Mart. Mounsaveng entered and asked whether the store cashed checks. When Bobbie answered that it did, Mounsaveng left. He eventually returned with defendant, and the two men milled about the store. Bobbie‘s father Xeng Wang Her arrived and began restocking drinks in the store‘s refrigerator case. Defendant walked up to Xeng, pointed a handgun at him, and forced him to walk toward the cash register. Defendant then forced Xeng to lie down and kicked him in the back of the head. Meanwhile, Mounsaveng jumped over the counter and forced Bobbie to open the cash register.

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implied from a defendant‘s conduct.‖ (People v. Holmes (1960) 54 Cal.2d 442, 443-444 (Holmes).) Moreover, ―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 a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it,‘ ‖ ‘ as well as voluntary ‗ ― ‗in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.‘ ‖ ‘ ‖ (People v. Collins (2001) 26 Cal.4th 297, 305 (Collins), quoting Moran v. Burbine (1986) 475 U.S. 412.) ―[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. U.S. ex rel. McCann (1942) 317 U.S. 269, 278 (Adams).) Defendant acknowledges that he expressly stated on the record that he gave up his right to a jury trial, and he makes no claim that his purported waiver was coerced or otherwise involuntary. Instead, he asserts that his decision to waive his jury trial right was not knowing and intelligent. Specifically, he contends that as a Laotian refugee with no formal education and limited command of the English language, he would not have understood what the right to trial by jury entailed unless the trial court or counsel explained it to him. Defendant points out that the trial court‘s waiver colloquy did not explain that a jury must be impartial, that its verdict must be unanimous, or that the trial court must declare a mistrial if the jury fails to reach a verdict. The trial court also did not ask any questions confirming that defendant understood how a jury works, or that defendant had discussed the jury waiver with his counsel. Our precedent has not mandated any specific method for determining whether a defendant has made a knowing and intelligent waiver of a jury trial in favor of a bench trial. We instead examine the totality of the circumstances. (See Adams, supra, 317 U.S. at p. 278; cf. People v. Marlow (2004) 34 Cal.4th 131,

expressly advised that unanimity among the 12 jurors is necessary to render a guilt or penalty verdict. (See People v. Cunningham (2015) 61 Cal.4th 609, 636; People v. Scott (1997) 15 Cal.4th 1188, 1208 (Scott); People v. Diaz (1992) 3 Cal.4th 495, 570 (Diaz); People v. Robertson (1989) 48 Cal.3d 18, 37, fn. 5 (Robertson).) But under the totality of the circumstances standard, the presence or absence of a reference in a colloquy to this particular attribute of a jury trial, or to the impartiality requirement, is not necessarily determinative of whether a waiver meets constitutional standards. (See Weaver, supra, 53 Cal.4th at pp. 1072-1074 [rejecting a defendant‘s argument that the failure to advise him of his right to participate in jury selection necessarily rendered his jury waiver invalid]; U.S. v. DeRobertis (7th Cir.1983) 715 F.2d 1174, 1186 [finding a knowing and intelligent jury waiver notwithstanding the trial court‘s failure to advise the defendant of the juror vote necessary to convict]; Rizzo, supra, 31 A.3d at p. 1118 [―this court and others have rejected claims that an otherwise valid waiver of the right to a jury is undermined by the trial court‘s failure to include a specific item of information in its canvass‖].) With the circumstances presented here, we are not persuaded that the trial court‘s failure to mention these characteristics of a jury trial renders defendant‘s waiver constitutionally infirm. At the same time, we use this opportunity to emphasize the value of a robust oral colloquy in evincing a knowing, intelligent, and voluntary waiver of a jury trial. Although our case law has eschewed any rigid formula or particular form of words that a trial court must use in taking a jury waiver, we observe that many other courts have offered guidance regarding important components of the waiver colloquy. (See, e.g., U.S. v. Delgado (7th Cir. 1981) 635 F.2d 889, 890 [trial courts ―should explain that a jury is composed of twelve members of the community, that the defendant may participate in the selection of jurors, and that the verdict of the jury is unanimous. The court should inform the defendant that if

he waives a jury, the judge alone will decide guilt or innocence‖]; U.S. v. Robertson (10th Cir. 1995) 45 F.3d 1423, 1432 [same]; Marone v. U.S. (2d Cir. 1993) 10 F.3d 65, 68 [same]; U.S. v. Martin (6th Cir. 1983) 704 F.2d 267, 274-275 [same]; State v. Blann (N.J. 2014) 90 A.3d 1253, 1253 [same]; State v. Redden (W.Va. 1997) 487 S.E.2d 318, 326 [adopting the same advisements and also suggesting that a trial court should ―ascertain on the record whether improper pressure or inducements, or a confused mental state, have affected the defendant‘s decision to waive the right to a jury trial‖]; U.S. v. Duarte-Higareda (9th Cir. 1997) 113 F.3d 1000, 1002 (Duarte-Higareda) [stating that the district court should advise a defendant of these factors and ―question the defendant to ascertain whether the defendant understands the benefits and burdens of a jury trial and freely chooses to waive a jury‖]; State v. Anderson (Wis. 2002) 638 N.W.2d 301, 310 [adopting similar advisements and also stating that a trial court must ensure that the defendant ―made a deliberate choice, absent threats or promises, to proceed without a jury trial” and “had enough time to discuss this decision with his or her attorney”].) Consistent with these decisions, we offer 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. 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. We also recommend 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. Adequacy of the Jury Waiver for the Special Circumstance Allegation Under the Federal and State Constitutions A defendant who has been convicted of first degree murder is eligible for the death penalty only if the prosecution has charged, and the trier of fact has found true, one or more statutorily enumerated special-circumstance allegations. (§ 190.2, subd. (a).) ―Whenever special circumstances . . . are alleged and the trier of fact finds the defendant guilty of first degree murder, the trier of fact shall also make a special finding on the truth of each alleged special circumstance.‖ (§ 190.4, subd. (a).) With the exception of a prior-murder special-circumstance allegation (§ 190.2, subd. (a)(2)), which requires a separate proceeding, ―[i]f the trier of fact finds the defendant guilty of first degree murder, it shall at the same time determine the truth of all special circumstances charged . . . .‖ (§ 190.1, subd. (a).) Defendant asserts that there was no knowing and intelligent waiver of his right to a jury trial concerning the robbery-murder special circumstance alleged against him. He does not argue that he was unaware of the special circumstance, or that he did not appreciate that he could receive the death penalty if it were found true. Rather, he emphasizes that the trial court never explicitly told him that he had a right to a jury trial for the special circumstance allegation. Defendant argues that this omission, viewed in the context of the record as a whole, means that he cannot be understood to have entered a valid waiver of his right to a jury trial for this allegation. Defendant demands more than the federal and state Constitutions require for a valid waiver of the jury trial right. As discussed, a knowing and intelligent jury waiver requires an appreciation of the nature of the jury trial right and the consequences of forgoing this right. (Collins, supra, 26 Cal.4th at p. 305.) There is no additional constitutional requirement that a defendant be specifically advised

special-circumstance allegation as involved in this case. (§ 190.1, subd. (a).) Even in an instance in which a defendant who has waived a jury as to guilt or innocence chooses to invoke the right to a jury with regard to such a special-circumstance allegation ― a circumstance that, albeit theoretically possible, to our knowledge has not ever occurred in practice― the trial of the special-circumstance allegation need not be separated from the guilt trial. In such a case, after the presentation of the relevant evidence before the court and the jury concurrently in a single trial, the jury can be required to return a verdict on the special-circumstance allegation in the event the trial court finds the defendant guilty of the charged murder offense. 7 The general rule recognized in Berutko presents no conflict with the results reached in State v. Schofield (Me. 2005) 895 A.2d 927 (Schofield) and State v. Williams (Or.Ct.App. 2005) 104 P.3d 1151 (Williams), where courts construed previously entered jury waivers as limited to charged crimes, and not as extending to the adjudication of additional facts that served to lengthen the defendants‘ sentences — facts that, due to the state of the law at the time the defendants entered their jury waivers, neither they nor their counsel had reason to believe were triable by a jury. The defendants in both Schofield, supra, 895 A.2d 927, and Williams, supra, 104 P.3d 1151, waived their right to a jury trial for criminal charges, were convicted, and then were sentenced to extended terms of imprisonment premised in part on additional findings made by the trial courts. (Schofield, at pp. 929-930; Williams, at p. 1152.) After the United States Supreme Court issued its decision in Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the defendants challenged their respective sentences on the ground that the judicial fact finding that had occurred deprived them of their Sixth Amendment right to a jury trial. In Williams, the state responded that the defendant‘s waiver of a jury trial for the underlying charge necessarily implied a waiver of his right to a jury trial concerning the enhancement; a similar argument was advanced in Schofield. (Schofield, at pp. 930-931; Williams, at p. 1152.) Each court rejected the state‘s position. Williams, supra, 104 P.3d 1151, emphasized that ―[a]t the time that defendant opted for a court trial, he not only was unaware that he had a right to a jury determination of facts used to impose a (Footnote continued on next page.)

dangerous offender sentence, but he also did not know of the possibility of such a sentence.‖ (Id., at p. 1153.) Schofield, supra, 895 A.2d 927, determined that ―[b]ecause Schofield, prior to Blakely, did not know that she had a right to have a jury determine, beyond a reasonable doubt, any facts necessary to increase her sentence beyond twenty years . . . her waiver extends only to the findings necessary to determine her guilt or innocence to the charge of manslaughter. It does not extend to findings that would serve to double the maximum sentence she faced upon conviction.‖ (Id., at p. 931.) Assuming, without deciding, that Schofield, supra, 895 A.2d 927, and Williams, supra, 104 P.3d 1151, correctly construed the effects of the defendants‘ jury waivers, both cases are distinguishable. Unlike the situation in Williams, here defendant most certainly was aware of the possibility he would receive a death sentence. Furthermore, both Schofield and Williams involved an intervening change in the law. In those cases defendants lacked (or were reasonably believed to lack, under the law prior to Blakely) a legal right to a jury trial for an enhancement or statutory aggravating findings when they entered their respective jury waivers. The Schofield and Williams courts thus declined to construe the defendants‘ jury waivers as forgoing a right to a jury trial that had not been recognized at the time the waivers were entered. By contrast, because defendant, who was represented by counsel at all pertinent times, had a right to a jury trial with regard to the special circumstance allegation at the time he entered his jury waiver (see § 190.4, subd. (a)), his comprehensive waiver is properly understood as subsuming that right. And in any event, as discussed post, the trial court‘s colloquy with defendant further demonstrates that defendant entered a knowing and intelligent waiver of a jury trial for the special circumstance allegation. 8 The dissenting justices direct their attacks on perceived deficiencies in the judge‘s advisements to defendant, and fail to properly account for other facts that (Footnote continued on next page.)

and intelligent declination of a jury trial for the special circumstance allegation. The trial court‘s advisement conveyed that defendant had a right to a jury trial with regard to all issues as to which an adverse determination could expose him to the death penalty — which included the special circumstance allegation — and that with his waiver, defendant would be giving up that right. Defendant‘s ensuing assent to a bench trial therefore manifested a knowing and intelligent waiver of his jury trial right with regard to the special circumstance allegation. Our finding of a knowing and intelligent waiver of a jury trial for the special circumstance allegation finds support in our decision in Diaz, supra, 3 Cal.4th 495. There, in taking the defendant‘s waiver of a jury trial, the trial court informed the defendant, ― ‗[Y]ou‘ll be giving up that right to have the jury in two different functions. First of all, first function is to decide the question of your guilt or innocence. Then the second function, similarly, assuming there are 12 of them and they would unanimously agree that you were guilty, then you would have 12 jurors who must unanimously agree as to the punishment. [¶] They have a choice, life without the possibility of parole or death. . . . And you‘ll be giving up that right.‘ ‖ The defendant answered, ― ‗I‘m giving it up.‘ ‖ The court then asked the defendant if he understood that his waiver applied to ― ‗both phases . . . of the special circumstances case.‘ ‖ The defendant assented. (Id., at p. 564.) The defendant also told the court that he had discussed the matter ― ‗quite thoroughly‘ ‖ with his attorney. (Id., at p. 565.) Diaz, supra, 3 Cal.4th 495, rejected the defendant‘s argument that his waiver was invalid, ruling instead that ―the trial court explained to defendant that the waiver of his right to trial by jury applied to all aspects of his special circumstances case, from beginning to end. . . . Although the trial court‘s admonition was not a model of clarity, we believe it was sufficient to advise defendant that his waiver, which included all aspects of guilt and penalty, included

guilt and the truth of any special circumstance allegations. The relevant text within the latter provision states, however, that ―[i]f the defendant was convicted by the court sitting without a jury, the trier of fact [on the special circumstance allegation(s)] shall be a jury unless a jury is waived by the defendant and by the people, in which case the trier of fact shall be the court.‖ (§ 190.4, subd. (a).) Memro construed these statutes (as enacted by the Legislature in 1977, see Stats. 1977, ch. 316, §§ 7, 12, pp. 1257, 1261), read together, as requiring a ―separate, personal waiver‖ of the right to a jury for a special circumstance allegation, above and beyond the standard guilt phase and penalty phase waiver. (Memro, at p. 704.) We have since clarified that the ―separate waiver‖ required under Memro does not require a second enunciated waiver by the defendant. In Diaz, this court‘s first case applying Memro, we explained that under Memro, ―[t]he waiver must be made by the defendant personally, and must be ‗separate‘ — that is, if the defendant is to be deemed to have waived the right to jury trial on both guilt and special circumstances, the record must show that the defendant is aware that the waiver applies to each of these aspects of trial.‖ (Diaz, 3 Cal.4th at p. 565.) Because the defendant in Diaz ―told the court that he had discussed the matter ‗quite thoroughly‘ with his counsel,‖ and the trial court‘s colloquy ―explained to defendant that the waiver of his right to trial by jury applied to all aspects of his special circumstances case, from beginning to end,‖ Diaz held that Memro was satisfied. (Diaz, at p. 565.) The Memro rule was construed similarly in People v. Wrest (1992) 3 Cal.4th 1088 (Wrest). There, the defendant engaged in an on-the-record colloquy with the prosecutor. In this colloquy, the prosecutor mentioned the terms ―special circumstances‖ or ―special allegations‖ several times, ultimately asking the defendant, ― ‗In other words, you don‘t want a jury trial on the issue of guilt or the special circumstances or the enhancements, right?‘ ‖ to which the defendant

special circumstance allegation could be equated with a determination that defendant‘s waiver covered the charge, in the sense that it encompassed a knowing and intelligent waiver of a jury trial for the allegation. We nevertheless conclude the colloquy fell short of what the applicable statutes, as construed in Memro, require. There was no specific reference in the waiver colloquy to the need to adjudicate the special circumstance allegation; the term ―special circumstance‖ was never mentioned at all. Although such precision is not required for a knowing, voluntary, and intelligent waiver, we believe that Memro‘s requirement of a ―separate waiver,‖ even as that rule was subsequently clarified in Diaz and Wrest, demands at least that much specificity. Although we recognize that the line we draw is a narrow one, we hold that defendant‘s purported waiver as to the special circumstance determination was deficient, as a matter of state law, under Memro, supra, 38 Cal.3d 658. Having identified Memro error, we now consider whether this error is amenable to harmless error review or instead requires automatic reversal. States are free to apply their own harmless error rules to errors of state law. (Cooper v. California (1967) 386 U.S. 58, 62 [―when . . . state standards alone have been violated, the State is free . . . to apply its own state harmless-error rule to such errors of state law‖].) The California Constitution imposes upon this court an obligation to conduct ―an examination of the entire cause‖ and reverse a judgment below for error only upon determining that a ―miscarriage of justice‖ has occurred. (Cal. Const., art. VI, § 13.) This provision informs the general rule in this state that to obtain reversal of the judgment based on a violation of a state statute, a defendant must demonstrate that it is ―reasonably probable that a result more favorable to [the defendant] would have been reached in the absence of the error.‖ (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)

Defendant argues that the Watson standard does not apply here, and that the error below should instead be regarded as structural, or reversible per se. We disagree. Categorization of an error as structural represents ―the exception and not the rule.‖ (Rose v. Clark (1986) 478 U.S. 570, 578; see also People v. Marshall (1996) 13 Cal.4th 799, 851 [―[t]here is a strong presumption any error‖ is susceptible to harmless error analysis].) In determining whether a federal constitutional error qualifies as structural, courts ―ask whether the error rendered the trial ‗fundamentally unfair or an unreliable vehicle for determining guilt or innocence‘ (Neder [v. United States (1999) 527 U.S. 1, 9]), or whether the effect of the error is ‗necessarily unquantifiable and indeterminate‘ (Sullivan [v. Louisiana (1993) 508 U.S. 275, 282]).‖ (People v. Aranda (2012) 55 Cal.4th 342, 366, italics omitted.) The fact that an error implicates important constitutional rights does not necessarily make it structural. ―Many statutes . . . set out procedures designed to protect constitutional principles. Broadly construed, many of these procedural statutes may be said to protect due process and other constitutional safeguards. Nevertheless, most procedural shortcomings constitute trial error‖ and not structural error. (People v. Anzalone (2013) 56 Cal.4th 545, 555-556 (Anzalone).) The ―miscarriage of justice‖ language within article VI, section 13 of the California Constitution likewise contemplates a limited class of structural errors, consisting of ― ‗[t]he kinds of errors that, regardless of the evidence, may result in a ―miscarriage of justice‖ because they operate to deny a criminal defendant the constitutionally required ―orderly legal procedure‖ (or, in other words, a fair trial) — for example, the denial of the defendant‘s right to a jury trial or to an impartial trial judge [citation] — [and] all involve fundamental ―structural defects‖ in the judicial proceedings . . . .‘ ‖ (People v. Alexander (2010) 49 Cal.4th 846, 896.)

Nor does the analysis in Memro itself support treating the error here as structural. Memro determined that another error required reversal and a remand of the matter for additional proceedings. (Memro, supra, 38 Cal.3d at p. 704.) For this reason, Memro did not need to and did not determine the consequences of a judge‘s failure to elicit a sufficiently specific jury waiver for the trial of a special circumstance allegation. (Id., at pp. 704-705.) Yet Memro never suggested that a failure to obtain such a waiver would fall into the rare class of mistakes that are reversible per se. And indeed, every Court of Appeal that has detected the type of error described in Memro has applied a form of harmless error analysis to the mistake, rather than finding it reversible per se. (People v. Moreno, supra, 228 Cal.App.3d at p. 579; People v. Gastile, supra, 205 Cal.App.3d at pp. 1383-1384; People v. Granger (1980) 105 Cal.App.3d 422, 428-429.) The type of Memro error involved here is, in fact, quite different from those mistakes that are regarded as structural. This error did ―not necessarily render [defendant‘s] criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.‖ (Neder v. United States, supra, 527 U.S. at p. 9.) Nor are the effects of this lapse ―necessarily unquantifiable and indeterminate.‖ (Sullivan v. Louisiana, supra, 508 U.S. at p. 282.) On the contrary, we are more than capable of scrutinizing the record to ascertain whether it reveals a reasonable probability that defendant would have demanded a jury trial for the special circumstance allegation, had no Memro error occurred. Defendant characterizes such an inquiry as unduly speculative. But we have conducted comparable evaluations of the record in other contexts, assessing whether a defendant would have made a different decision absent an error in advisement. For example, we have structured examinations of prejudice around whether a criminal defendant still would have entered a guilty or no contest plea had the judge provided an adequate advisement regarding the plea‘s immigration consequences (People v.

Martinez (2013) 57 Cal.4th 555, 559 (Martinez); People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 (Zamudio)); whether a defendant would have accepted a plea bargain offered by the prosecution had his or her attorney provided effective assistance of counsel (In re Alvernaz (1992) 2 Cal.4th 924, 937); and whether an unrepresented defendant would have invoked the right to counsel had he or she been readvised of this right upon arraignment after the preliminary examination, as is required under section 987, subdivision (a) (People v. Crayton (2002) 28 Cal.4th 346, 365 (Crayton)). Martinez, supra, 57 Cal.4th 555, is instructive concerning the nature of this type of review. Previously, we had determined in Zamudio, supra, 23 Cal.4th 183, that where a trial court fails to supply the advisement required under section 1016.5 regarding the immigration consequences of a guilty or no contest plea and the defendant shows that his or her conviction may result in adverse immigration consequences, the court, on the defendant‘s motion, must vacate the judgment and allow the defendant to withdraw the plea — provided, however, the defendant also could show prejudice by establishing that ―it was reasonably probable he or she would not have pleaded guilty if properly advised.‖ (Martinez, at p. 559, citing Zamudio, at p. 210.) Martinez considered ―whether a court ruling on a motion to vacate pursuant to section 1016.5 may deny relief, for lack of prejudice, if it concludes the defendant would not have obtained a more favorable outcome had he or she chosen not to plead guilty or nolo contendere.‖ (Martinez, at p. 559.) It determined that ―because the question is what the defendant would have done, relief should be granted if the court, after considering evidence offered by the parties relevant to that question, determines the defendant would have chosen not to plead guilty or nolo contendere, even if the court also finds it not reasonably probable the defendant would thereby have obtained a more favorable outcome.‖ (Ibid.)

have waived a jury trial absent the mistake. The defendant in Sanchez received a death sentence after he waived a jury trial for the guilt phase of a capital case, opting instead for the court to decide guilt on the basis of preliminary hearing transcripts. (Id., at pp. 17, 23-27.) On appeal, the defendant argued that the trial court committed prejudicial error because in taking the defendant‘s waiver of a jury trial for the guilt phase, it failed to comply with a state law requirement that the defendant be advised of the potential maximum and minimum terms of imprisonment. (Id., at p. 30; see People v. Dakin (1988) 200 Cal.App.3d 1026, 1033.) Applying the Watson ―reasonably probable‖ standard of review to this omission, Sanchez found insufficient indicia of prejudice. (Sanchez, at p. 30.) The defendant knew that he faced a possible death sentence if convicted, it was noted. (Ibid.) Furthermore, Sanchez observed, ―It is clear from the record that defendant would have waived his right to a jury trial and insisted on the submission of the guilt phase on the preliminary hearing transcripts even if he was specifically told by the court that he faced a possible death sentence.‖ (Id., at p. 31.) Other courts also consider themselves capable of ascertaining whether a defendant would have chosen a jury trial over a bench trial if there had not been an error by the judge or counsel in connection with the jury waiver. In U.S. v. Williams (7th Cir. 2009) 559 F.3d 607, for example, faced with a jury waiver that did not comply with the requirements of rule 23(a) of the Federal Rules of Criminal Procedure (18 U.S.C.) the court declined to characterize the error as structural. It instead ascertained that ―for purposes of determining whether the waiver was, in fact, invalid, one can determine whether the defendant adequately understood his right to a jury; moreover, if the defendant lacked such an understanding, one can assess the likelihood that he would have stood on his right to a jury had he been properly admonished of his right.‖ (U.S. v. Williams, at p. 614.) Later, the court in U.S. v. Williams reiterated that, having failed to raise a timely objection to the allegedly

inadequate waiver procedure, the defendant ―must show that he did not have a concrete understanding of his right to a jury and that it is reasonably probable that he would not have waived a jury had he had such an understanding.‖ (Id., at p. 616.) A similar inquiry has also been endorsed for ascertaining whether a defendant suffered prejudice due to ineffective assistance of counsel in connection with a jury waiver. In State v. Keller (Iowa 2009) 760 N.W.2d 451, for example, the defendant‘s written jury waiver did not discuss any of the specific elements of the jury trial right, and there was no record of any waiver colloquy between the trial court and the defendant. (Id., at p. 452.) The defendant in Keller pressed an ineffective assistance of counsel claim, asserting that her counsel provided constitutionally inadequate assistance by not ensuring a knowing and adequate waiver. (Ibid.) In describing the defendant‘s burden of showing prejudice, the Keller court explained that she ―must prove by a preponderance of the evidence that, but for counsel‘s failure to assure compliance with the rule, she would not have waived her right to a jury trial.‖ (Id., at p. 453.) In Illinois, prejudice from the deficient performance of counsel in connection with a jury waiver is assessed by reference to ―whether there exists a reasonable likelihood that the defendant would not have waived his jury right in the absence of the alleged error.‖ (People v. Maxwell (Ill. 1992) 592 N.E.2d 960, 973.) And in Mallory, supra, 941 A.2d 686, the Pennsylvania Supreme Court rejected the petitioner‘s argument that counsel‘s alleged ineffective assistance in connection with a jury waiver amounted to structural error. Mallory concluded instead that ―to prove trial counsel ineffective . . . . appellant must show that his understanding of the written [jury] waiver was constitutionally impaired by his lawyer‘s deficient performance, as well as proof that he would have elected a jury but for his lawyer‘s performance.‖ (Id., at p. 702; see also Taylor v. Horn (3d Cir. 2007) 504 F.3d 416, 450 [observing that a habeas corpus petitioner had not shown that he was prejudiced

court emphasized that although the conduct underlying the new charge was the same as that involved with previously charged crimes for which defendant had entered a jury waiver, ―the elements to be proved and the penalties are dramatically different.‖ (Id., at pp. 885-886.) Thus, whereas Little involved no waiver with regard to an added charge that significantly upped the ante of the defendant‘s trial, here defendant entered a constitutionally adequate jury waiver applicable to all phases of his trial. The cases therefore diverge in both the magnitude of the errors involved, and the ability of a reviewing court to evaluate what a defendant would likely have done in the absence of the error. Even so, Little applied harmless error analysis to the error before it. The fact that Little identified the error as prejudicial due to uncertainty about that defendant‘s choice between a jury trial and a bench trial does not support the wholesale rejection of harmless error analysis in this context. Similarly distinguishable is Miller v. Dormire (8th Cir. 2002) 310 F.3d 600, a federal habeas corpus case, in which a jury waiver was entered by the petitioner‘s counsel. (Id., at pp. 601-602.) The petitioner testified at an evidentiary hearing that his attorney never explained the right to a jury trial to him, and ―that he would have insisted upon a jury trial had he known he had the right to make such a decision.‖ (Id., at p. 602.) The prosecution argued that the petitioner could not show prejudice because he could not establish that a jury would have reached a verdict different from the one that resulted from the petitioner‘s bench trial. (Id., at p. 604.) The court determined that the attorney‘s complete failure to counsel his client regarding a jury trial constituted ineffective assistance under the Sixth Amendment to the United States Constitution, and ―presumed‖ that prejudice resulted from this ―structural‖ error. (Miller, at p. 604.) Thus, Miller also involved constitutional error, not statutory error under state law, the petitioner had made a showing of prejudice, and the court‘s characterization of the error before it as structural connoted its rejection of a form of harmless error analysis that we do not endorse here. Significantly, after Miller was

decided, that same federal appellate circuit rejected another federal habeas corpus petitioner‘s claim of ineffective assistance of counsel in connection with a jury waiver on the ground that the petitioner had ―not established that he would have insisted on a jury trial in any event.‖ (Nelson v. Hvass (8th Cir. 2004) 392 F.3d 320, 324.) We therefore conclude that at least where, as here, a defendant has personally entered a knowing, intelligent, and voluntary jury waiver as to all aspects of his or her trial, Memro error admits of harmless error analysis. This assessment entails a review of the record to ascertain whether it reveals a reasonable probability that defendant would have opted for a jury trial of the special circumstance allegation, had no Memro error occurred. In undertaking this inquiry, we consider ―what the defendant would have done‖ (Martinez, supra, 57 Cal.4th at p. 558, italics omitted), not what we believe he should have done (id., at p. 562, italics omitted). As we explain, on this record we conclude that defendant has not shown that there is a reasonable probability that, had the trial judge expressly referenced the special circumstance allegation in the waiver colloquy or otherwise sought a separate waiver regarding the allegation, defendant would have refused to enter such a waiver, and instead would have sought a jury trial for this aspect of his case. (See Watson, supra, 46 Cal.2d at p. 836.) Defendant personally entered what we have determined to be a knowing and intelligent jury trial waiver, and did so with the assistance of counsel. The record reveals no hesitation by defendant in entering the waiver, nor uncertainty or confusion about its scope or consequences, even when the trial judge advised him that it applied ―to all issues‖ in the case. Nor does the record reflect any concern or objection by defendant when the attorneys offered argument to the court concerning the relationship of the evidence adduced at trial to the special circumstance allegation — first in connection with section 1118 motions, and again in the parties‘ closing statements — or when the court found the special circumstance allegation to be true. Finally, to the degree such evidence is useful in ascertaining what defendant would

either order a new jury or impose a punishment of confinement in state prison for a term of life without the possibility of parole.‖ The defendant in Hovarter read the first sentence of the second paragraph of section 190.4, subdivision (b) as imposing upon the court a mandatory duty to empanel a new jury for a penalty phase retrial. (Hovarter, supra, 44 Cal.4th at p. 1025.) We disagreed with this interpretation, determining that ―[b]ecause the default position in criminal cases is a trial by jury, with a jury trial waiver the exception, the first paragraph of section 190.4, subdivision (b) must be read to mean that, despite the fact an accused waived his right to a jury for the guilt phase, the trial court must presume the defendant wants a jury to try the penalty phase unless a jury is again waived. In other words, as an added protection for criminal defendants, a single jury trial waiver given early in the trial process is insufficient; a defendant must reaffirm his waiver for the penalty phase. This view of section 190.4, subdivision (b) explains why the first paragraph includes an explicit mention of waiver. [¶] The meaning of the second paragraph dovetails with the first: If a jury was not waived for the penalty phase of trial, it shall be presumed the defendant also desires a jury for any retrial of that phase. This presumption, however, can — as in all situations in which the jury trial right attaches — be overcome with a knowing and intelligent waiver, personally given in open court.‖ (Id., at pp. 1026-1027.) Defendant construes our analysis in Hovarter, supra, 44 Cal.4th 983, as announcing a rule that the trial court must reaffirm the defendant‘s jury trial waiver at the outset of the penalty phase of all capital trials, regardless of whether an initial jury waiver entered prior to the guilt phase incorporated an adequate waiver of the jury trial right for the penalty phase. This view misreads Hovarter. There, our discussion of the inadequacy of ―a single jury waiver given early in the trial process‖ presupposed a jury waiver as to the guilt phase only. (Id., at

the item was sharp, and therefore his possession of the object should not have been considered in aggravation under section 190.3, factor (b). As background, Terry Bardwell, a correctional officer at the Fresno County Jail, testified at the penalty phase that she inspected defendant‘s property upon his arrival at the jail. Officer Bardwell ―found — we consider it contraband, which would be a shank. Umm, it was approximately five-and-a-half inches long and one inch in width.‖ She wrote in her incident report that the object was made of metal. She discarded the object because it ―was not of evidentiary value.‖ On cross-examination, Bardwell conceded that she could not remember whether the object was sharpened, nor did she record anything in her report other than its size and material. Defense counsel moved to strike Bardwell‘s testimony on the ground that there was insufficient evidence that the object had been sharpened to establish a violation of section 4502, subdivision (a). The trial court denied the motion, explaining, ―I think it‘s admissible. It‘s contraband. It is contraband because it is an item that can be used as a weapon. So there‘s case law that says even if there‘s a reasonable inference that the item seized was in fact a tattoo needle and not a stabbing utensil, that it still is admissible as a weapon because it can be used as a weapon. Might have been a shoe horn, about five-and-a-half inches long, inch wide.‖ Later, the trial court mentioned the shank when determining that a death sentence was justified, stating, ―The incidents in jail following Mr. Sivongxxay‘s arrest have been considered: threats to correctional officers after discipline was meted out or explained; the presence of a shank, which under jail rules was a weapon, and as an inmate can be considered by the Court as including a threat of violence.‖ In asserting that the trial court erred in considering possession of the item among the circumstances in aggravation, defendant emphasizes that although

Officer Bardwell described the item as a ―shank,‖ she acknowledged on cross- examination that she could not recall if it was sharp. Under the circumstances, defendant argues, ―this small piece of metal of unknown characteristics cannot qualify as a sharpened or stabbing instrument under section 4502 as a matter of law.‖ We need not decide whether the trial court erred in considering the evidence regarding the ―shank‖ in aggravation, however, because even if we were to assume that defendant has correctly identified error, the mistake was harmless. Our determination whether state law error at the penalty phase prejudiced the defendant turns on whether ―there is a reasonable (i.e., realistic) possibility that the [sentencer] would have rendered a different verdict had the error or errors not occurred.‖ (People v. Brown (1988) 46 Cal.3d 432, 448.) ― ‗When evidence has been erroneously received at the penalty phase, this court should reverse the death sentence if it is ―the sort of evidence that is likely to have a significant impact on the [sentencer‘s] evaluation of whether defendant should live or die.‖ ‘ ‖ (People v. Hamilton (2009) 45 Cal.4th 863, 917.) Here, we have a clear indication of the sentencer‘s decisionmaking process because the trial court stated on the record the aggravating and mitigating evidence it considered in reaching its decision. Defendant‘s ―long pattern of violent crime against many, many victims‖ served as the organizing theme behind the trial court‘s summary of aggravating evidence. As the trial court put it, ―[h]is life of victimization carried through from the first act of violence in Washington State until the ultimate death of Henry Song.‖ Within that framework, defendant‘s postarrest conduct was an afterthought; it involved no acts of physical violence, and thus no victims, but only the threat of violence. The trial court‘s lack of emphasis on the metal object mirrors the prosecution‘s use of that evidence: It was only one of nine incidents introduced under section 190.3, factor (b), and it merited only a brief mention in

rather than a threat. The trial court decided that it would ―probably just hear [Gomez‘s testimony] and see whether it amounts to a threat in my mind.‖ The trial court apparently concluded that the evidence was admissible because in explaining its decision to sentence defendant to death, it said it had considered as aggravating evidence ―threats to correctional officers after discipline was meted out or explained.‖ On appeal, defendant contends that his conduct did not constitute criminal activity, and was therefore inadmissible, because it did not violate section 69. In relevant part, section 69 makes it a criminal offense to ―attempt[], by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law.‖ We have explained that a ―threat, unaccompanied by any physical force, may support a conviction‖ under this part of section 69, but that to ―avoid the risk of punishing protected First Amendment speech . . . the term ‗threat‘ has been limited to mean a threat of unlawful violence used in an attempt to deter the officer.‖ (In re Manuel G. (1997) 16 Cal.4th 806, 814-815.) ―The central requirement . . . is an attempt to deter an executive officer from performing his or her duties imposed by law; unlawful violence, or a threat of unlawful violence, is merely the means by which the attempt is made.‖ (Id., at p. 815.) Accordingly, a violation of section 69 through a threat ―requires a specific intent to interfere with the executive officer‘s performance of his duties.‖ (People v. Gutierrez (2002) 28 Cal.4th 1083, 1153 (Gutierrez).) ―[A] present ability to carry out threats is not required if . . . the target of the threat could reasonably fear retaliatory action on some future occasion.‖ (People v. Hines (1997) 15 Cal.4th 997, 1060 (Hines).) In arguing that his conduct did not constitute a violation of section 69, defendant points to cases where the Attorney General declined to contest admissibility, where our observations about section 69 appeared in dicta, or that

are clearly distinguishable for other reasons. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1169-1170 [although ―defendant verbally abused [correctional officer] and threatened to ‗kick [his] ass,‘ ‖ Attorney General declined to argue on appeal that this constituted a criminal threat]; People v. Tuilaepa (1992) 4 Cal.4th 569, 590 [noting defendant‘s reliance on the ―general notion that abusive and even threatening language does not violate a penal statute‖]; People v. Pinholster (1992) 1 Cal.4th 865, 961-962 [defendant‘s statement to sheriff in county jail that ―if he were not sent to state prison he would ‗go out on the streets and do something to get back in‘ ‖ was ―arguably inadmissible‖], disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459; People v. Silva (1988) 45 Cal.3d 604, 636 [where defendant told officer that ―he would kill the first police officer to step inside his cell if he was not permitted to visit with his wife,‖ Attorney General conceded erroneous admission but argued it was harmless]; People v. Coleman (1988) 46 Cal.3d 749, 787-788 [though it was ―not clear‖ that defendant‘s threat to correctional officer constituted criminal activity, defendant‘s claim was forfeited because he failed to object].) Defendant fails to identify any case squarely holding that statements akin to those he made to Officer Gomez fall outside the scope of section 69. As defendant recognizes, ―threats must be placed and understood in their context.‖ (People v. Iboa (2012) 207 Cal.App.4th 111, 119.) Here, the trial court could have reasonably inferred from defendant‘s comments that he sought to use a threat of future violence ―to interfere with [Officer Gomez]‘s performance of his duties‖ (Gutierrez, supra, 28 Cal.4th at p. 1153), namely, Gomez‘s task of telling defendant he had been reassigned to an isolation unit. When Gomez explained that defendant was being moved to isolation, defendant repeatedly yelled the ―I‘ll remember you‖ statement while standing three feet away from Gomez with his fists clenched in a ―combative stance‖ that Gomez perceived as ―very hostile.‖

circumstance charged is either true or not true. . . . [¶] If the defendant was convicted by the court sitting without a jury, the trier of fact shall be a jury unless a jury is waived by the defendant and by the people, in which case the trier of fact shall be the court.‖ (§ 190.4, subd. (a) (section 190.4(a)).) In Memro, we held that under section 190.4(a) ―an accused whose special circumstance allegations are to be tried by a court must make a separate, personal waiver of the right to a jury trial.‖ (Memro, supra, 38 Cal.3d at p. 704.) In this case, defendant Vaene Sivongxxay was denied a jury trial on the special circumstance allegation in violation of these constitutional and statutory guarantees. This unlawful denial of a jury trial is a structural error requiring automatic reversal. Today‘s opinion concludes otherwise. The court reprints Sivongxxay‘s waiver colloquy in its entirety (maj. opn., ante, at pp. 10–12) and acknowledges that ―[t]here was no specific reference in the waiver colloquy to the need to adjudicate the special circumstance allegation; the term ‗special circumstance‘ was never mentioned at all‖ (id. at p. 30). Yet the court finds no constitutional violation, reasoning that Sivongxxay‘s assent to a jury trial waiver on ―all issues‖ meant he understood he was waiving a jury trial on the special circumstance allegation. (Id. at p. 25.) This is a remarkably loose interpretation of what it means to make a ―knowing and intelligent‖ waiver. (Collins, supra, 26 Cal.4th at p. 305.) How can it be said that Sivongxxay waived a jury trial on the special circumstance allegation ― ‗ ― ‗with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it‘ ‖ ‘ ‖ (ibid., italics added) when the special circumstance ―was never mentioned at all‖ (maj. opn., ante, at p. 30) in the waiver colloquy? Sivongxxay‘s waiver was also deficient under section 190.4(a) because he made no separate waiver of a jury trial on the special circumstance allegation. On this point, the court agrees; it concludes that the waiver colloquy lacked the

―precision‖ and ―specificity‖ required by the statute. (Maj. opn., ante, at p. 30.) But the court goes on to find this error harmless on the ground that Sivongxxay has not shown a reasonable probability that he ―would have chosen a jury trial for the special circumstance allegation had the trial judge avoided [the] error.‖ (Id. at p. 45.) This latter holding may understandably cause a bit of whiplash: The court, having found error under the statute, excuses the error through reasoning that defeats the statute‘s very purpose. Section 190.4(a) provides that even if a defendant waives a jury trial on other aspects of a capital case, the trier of fact on the special circumstance allegation ―shall be a jury‖ unless the defendant executes a separate waiver. (§ 190.4(a); see Memro, supra, 38 Cal.3d at p. 704.) The Legislature, recognizing the gravity of a special circumstance allegation, expressly mandated a jury trial unless the defendant forgoes it specifically through a separate waiver. What is left of this requirement if, upon proof of a violation, the burden is on the defendant to show he would have wanted a jury trial had the trial court not violated the statute? Here, as in People v. Blackburn (2015) 61 Cal.4th 1113, 1131 (Blackburn) and People v. Tran (2015) 61 Cal.4th 1160, 1169 (Tran), ―[t]he statute does not require the defendant to affirmatively show he or she wanted a jury trial; a jury trial is the default procedure absent a personal waiver.‖ When a statute expressly guarantees a jury trial on a specific matter unless the defendant waives a jury trial on that matter, the deprivation of a jury trial without a waiver on that matter is a ―miscarriage of justice‖ that requires automatic reversal. (Cal. Const., art. VI, § 13; see Blackburn, at p. 1136; Tran, at p. 1169.) From today‘s opinion, one would not get the sense that the jury trial guarantees in federal and state law ―reflect a fundamental decision about the exercise of official power — a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges.‖ (Duncan v.

jury.‘ ‖ (Id. at p. 94.) Under Berutko, the court says, the finding that Sivongxxay‘s guilt phase waiver was ―knowing and intelligent is sufficient in itself to defeat defendant‘s contention that his waiver did not meet constitutional standards with regard to the special circumstance allegation.‖ (Maj. opn., ante, at p. 22.) But a glance at Berutko makes clear that this is a stretch. Although the court implies that Berutko set forth a ―general rule‖ of constitutional law (maj. opn., ante, at pp. 21–22, fns. 5, 7), that case did not address any constitutional issue concerning the jury trial waiver. Instead, Berutko addressed the scope of a jury trial waiver in the context of a specific statute, former section 969 1/2 (now section 969.5), which provided that ― ‗the question whether or not [the defendant] has suffered such previous conviction must be tried by a jury impanelled for that purpose, unless a jury is waived, in which case it may be tried by the court.‘ ‖ (Berutko, supra, 71 Cal.2d at p. 94.) The statutory nature of Berutko‘s holding was confirmed in Memro, where we found Berutko ―inapposite‖ to interpreting section 190.4. (Memro, supra, 38 Cal.3d at p. 702, fn. 52.) Berutko never discussed whether the jury trial waiver in that case was knowing or intelligent as a constitutional matter. (See Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1134 [― ‗ ―cases are not authority for propositions not considered‖ ‘ ‖].) Indeed, Berutko‘s entire analysis of the waiver issue consisted of just three sentences: The first said, ―This contention is without merit,‖ and the other two quoted Court of Appeal opinions addressing jury trial waivers only in the context of prior conviction allegations. (Berutko, at p. 94.) Berutko is not authority for a ―general rule‖ applicable to a special circumstance allegation in a capital trial. The real heart of the court‘s analysis is its claim that ―the specific advisements the trial court provided to defendant before taking his waiver, together with the other surrounding circumstances, confirm that defendant

knowingly and intelligently relinquished his right to a jury trial for this allegation.‖ (Maj. opn., ante, at p. 23.) The court asserts: ―The trial court‘s advisement conveyed that defendant had a right to a jury trial with regard to all issues as to which an adverse determination could expose him to the death penalty — which included the special circumstance allegation — and that with his waiver, defendant would be giving up that right.‖ (Id. at p. 25, italics added.) Let us compare this assertion, particularly the italicized phrase, with the waiver colloquy: ―THE COURT: Mr. Mounsaveng, Mr. Sivongxxay, you each have a right to a trial, either by a jury of 12 people selected from this community, through a process that you would engage in with your attorneys, the district attorney and the Court, or a trial in front of a judge, acting alone without a jury. [¶] The burden of proof remains the same. The district attorney has the burden to go forth with evidence sufficient to prove your guilt beyond a reasonable doubt. Then, and only then, would we get to a penalty phase. [¶] In a court trial, I would hear the evidence. I, alone, would make the decision on whether that evidence was sufficient to prove your guilt beyond a reasonable doubt. [¶] In the event I made such a finding, as to either or both of you, we would then proceed to a penalty phase, where the district attorney would present aggravation evidence. Through your — you, through your attorney, would have a right to present mitigation evidence, and it would fall upon me to make the decision as to the appropriate punishment, which could result in a death penalty sentence. [¶] Do you give up your right to a jury trial and agree that this Court, alone, will make those decisions . . . ? [¶] . . . [¶] THE COURT: Mr. Sivongxxay? [¶] THE DEFENDANT SIVONGXXAY: Yes. [¶] THE COURT: Ms. Detjen? [¶] MS. DETJEN: Yes, Your Honor, the People waive the jury trial. [¶] THE COURT: All right. We‘ll show a jury waiver on all issues . . . .‖

Today‘s opinion acknowledges, as it must, that ―[t]here was no specific reference in the waiver colloquy to the need to adjudicate the special circumstance allegation; the term ‗special circumstance‘ was never mentioned at all.‖ (Maj. opn., ante, at p. 30.) What, then, is the basis for the assertion that ―[t]he trial court‘s advisement conveyed that defendant had a right to a jury trial with regard to all issues as to which an adverse determination could expose him to the death penalty — which included the special circumstance allegation — and that with his waiver, defendant would be giving up that right‖? (Id. at p. 25, italics added.) Simply put, there is none. The court relies on People v. Diaz (1992) 3 Cal.4th 495 (Diaz), but that case is easily distinguished. The colloquy in Diaz expressly mentioned the special circumstance. (Id. at p. 564 [trial judge asked Diaz whether he understood that his waiver applied to ― ‗both phases . . . of the special circumstanceS case‘ ‖].) Further, the record showed that Diaz told the court he had discussed the matter ― ‗quite thoroughly‘ ‖ with his attorney. (Id. at p. 565.) The case before us does not involve ―similar facts.‖ (Maj. opn., ante, at p. 26.) The court says that to distinguish Diaz from this case is to endorse ―the proposition that the judge was constitutionally bound to utter the phrase ‗special circumstance‘ at some point in the waiver colloquy with defendant.‖ (Maj. opn., ante, at pp. 26–27.) I agree that a trial judge need not recite any ― ‗ ―talismanic phrase‖ ‘ ‖ (id. at p. 27) when discussing a special circumstance jury waiver. But it is unusual, to say the least, to explain a thing without naming the thing being explained. This is especially true here in light of our recognition that the special circumstance is a ―unique‖ feature of California‘s capital scheme. (People v. Bacigalupo (1993) 6 Cal.4th 457, 468 (Bacigalupo); see People v. Garcia (1984) 36 Cal.3d 539, 552 [―special circumstances are sui generis — neither a crime, an enhancement, nor a sentencing factor‖].) As noted, the ultimate test is whether a

waiver was made ― ‗ ― ‗with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.‘ ‖ ‘ ‖ (Collins, supra, 26 Cal.4th at p. 305.) The point of a waiver colloquy, however phrased, is to inform the defendant that he is entitled to a jury trial on a separate allegation that makes him eligible for the death penalty. The trial court‘s failure in this case to even mention the special circumstance allegation is surely probative of whether Sivongxxay‘s jury waiver on that allegation was knowing and intelligent. The court says that focusing ―on perceived deficiencies in the judge‘s advisements to defendant‖ ignores other relevant circumstances, such as ―defendant‘s prior criminal history, other events before and after the waiver was entered, and the fact that defendant was represented by counsel.‖ (Maj. opn., ante, at pp. 23–24, fn. 8.) But these other considerations do not tend to show that Sivongxxay‘s special circumstance jury waiver was knowing and intelligent. Why is Sivongxxay‘s criminal history relevant when he has never been subject to California‘s ―unique‖ capital scheme? (Bacigalupo, supra, 6 Cal.4th at p. 468.) And what ―other events before and after the waiver was entered‖ is the court referring to? As for the fact that Sivongxxay was represented by counsel, our cases have found this relevant when the record indicates that counsel discussed the implications of the waiver decision with the defendant. (See People v. Cunningham (2015) 61 Cal.4th 609, 636 (Cunningham) [upholding waiver where defendant ―confirm[ed] he had discussed the issue with his counsel, who concurred in the waiver‖]; People v. Weaver (2012) 53 Cal.4th 1056, 1070–1071 [upholding waiver where defense counsel ―stated that he, the other defense attorney, defendant, and defendant‘s father had discussed the matter together the day before for about two hours, and that the attorney believed waiving a jury was in defendant‘s best interest‖]; People v. Scott (1997) 15 Cal.4th 1188, 1208 (Scott)

[upholding waiver where ―[d]efense counsel stated that he and defendant had discussed the matter, and both agreed that the waiver was in defendant‘s best interests ‗in terms of trial tactics‘ ‖]; Diaz, supra, 3 Cal.4th at p. 565 [upholding waiver where defendant ―told the court that he had discussed the matter ‗quite thoroughly‘ with his counsel‖]; People v. Robertson (1989) 48 Cal.3d 18, 36 (Robertson) [upholding waiver where defendant ―was represented by two apparently competent counsel who over the course of several days discussed with him ‗at length‘ the consequences and nature of his proposed waiver‖]; People v. Deere (1985) 41 Cal.3d 354, 357, 359 [defense counsel ―explained at length to the court why he permitted his client . . . to waive a penalty jury‖ and affirmed that ―defendant ‗knows what would happen if the case went to jury trial‘ ‖].) Nothing in the record here indicates that Sivongxxay discussed the nature or consequences of his jury waiver with his attorney. The court adds that Sivongxxay‘s ―failure to express any surprise or confusion regarding the judge‘s assertion that the waiver applied to ‗all issues‘ represents a relevant consideration in ascertaining the nature and extent of his waiver.‖ (Maj. opn., ante, at p. 14, fn. 2.) But if Sivongxxay had expressed surprise or confusion, presumably the trial judge or counsel would have clarified the issue, and we would not be here discussing it on appeal. In essence, the court would require the record to affirmatively demonstrate that Sivongxxay did not know he was entitled to a jury trial on the special circumstance allegation. That is not what the law requires, and for good reason: Where a defendant claims he did not understand the nature of his jury trial right and the consequences of waiving it, it makes no sense to say the defendant can prevail only if the record shows that he did not know what he did not know. In sum, the waiver colloquy did not mention the special circumstance allegation, and nothing else shows that Sivongxxay understood the nature of the

allegation before he waived his right to a jury trial. On this record, I do not see how the court can conclude that Sivongxxay waived a jury trial on the special circumstance allegation ― ‗ ― ‗with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.‘ ‖ ‘ ‖ (Collins, supra, 26 Cal.4th at p. 305.) Sivongxxay was denied a jury trial on the special circumstance allegation in violation of the federal and state Constitutions. II. Notwithstanding its constitutional holding, today‘s opinion concludes that the trial court, in proceeding to a bench trial on the special circumstance allegation, violated section 190.4(a) by failing to take ―a ‗separate‘ waiver‖ with the ―specificity‖ required by the statute. (Maj. opn., ante, at p. 30.) But the court holds that the error does not require automatic reversal. To obtain relief, the court says, Sivongxxay must demonstrate a reasonable probability that he would have chosen a jury trial on the special circumstance allegation if the trial court had sought a separate waiver. (Id. at p. 33.) The court concludes that Sivongxxay has not carried this burden and therefore finds the error harmless. (Id. at pp. 44–45.) At the outset, it bears mention that no party mentioned this theory of harmless error in the principal briefs. Sivongxxay maintained that the statutory error is structural; the Attorney General argued only that any error was harmless because, given the overwhelming evidence in support of the robbery-murder allegation, a jury would have found the allegation to be true. It was not until well after oral argument, when this court vacated submission and invited supplemental briefing on the theory adopted today, that the Attorney General embraced it. Although this court is not limited to the parties‘ arguments in conducting harmless error review (Cal. Const., art. VI, § 13), the fact that no party thought to advance the court‘s theory suggests its novelty.

(As an aside, I find it troubling that the Attorney General‘s supplemental brief contends — at the eleventh hour, with no explanation for its belated epiphany — that our precedent ―virtually compels‖ the harmless error analysis in today‘s opinion. The absence of any explanation risks the perception that the Attorney General‘s new contention is opportunistic or that his initial briefing, having missed a theory ―virtually compel[led]‖ by our precedent, was of questionable competence. Neither does wonders for the government‘s credibility. (See People v. Eubanks (1996) 14 Cal.4th 580, 589 [the prosecutor ― ‗ ―is in a peculiar and very definite sense the servant of the law‖ ‘ ‖ and must exercise his or her functions ― ‗with the highest degree of integrity and impartiality‘ ‖]; Corrigan, On Prosecutorial Ethics (1986) 13 Hastings Const. L.Q. 537, 537 [―the integrity of the prosecutor‖ ―lies at the heart of our criminal justice system and is the foundation from which any prosecutor‘s authority flows‖].) This is not the first time this concern has arisen in recent years. (See People v. Grimes (2016) 1 Cal.5th 698, 720 [Attorney General did not argue harmless error in her briefing but then, without explanation, argued harmless error after this court requested supplemental briefing]; People v. Aranda (2012) 55 Cal.4th 342, 367, fn. 13; id. at p. 379 (conc. & dis. opn. of Liu, J.) [Attorney General conceded in her answer brief that instructional error required reversal but then, without explanation, switched her position after this court requested supplemental briefing].)) In any event, the court‘s theory of harmless error does not withstand scrutiny. The reasoning of our recent decisions in Blackburn, supra, 61 Cal.4th 1113, and Tran, supra, 61 Cal.4th 1160, makes clear that a violation of section 190.4(a) is structural error. In Blackburn, we interpreted the statutory scheme governing involuntary commitment proceedings for mentally disordered offenders. Under section 2972, subdivision (a), a hearing to extend an offender‘s commitment beyond the termination of parole ―shall be by jury unless waived by

both the person and the district attorney.‖ Although Blackburn‘s lawyer had submitted a request for a bench trial, we concluded that the trial court erred in failing to elicit a personal jury trial waiver from Blackburn. (Blackburn, at p. 1130.) This error, we said, ―defies ordinary harmless error analysis. To speculate about whether a defendant would have chosen a jury trial if he or she had been in a position to make a personal choice would pose insurmountable difficulties, as would an inquiry into what effect, if any, that choice would have had on the outcome of the trial. . . . ‗[W]here a case improperly is tried to the court rather than to a jury, there is no opportunity meaningfully to assess the outcome that would have ensued in the absence of the error.‘ [Citation.] Accordingly, we treat a trial court‘s failure to obtain a required personal jury trial waiver as tantamount to the denial of a jury trial, and as such, it constitutes a ‗miscarriage of justice‘ under California Constitution, article VI, section 13. [Citations.]‖ (Blackburn, at p. 1134.) Importantly, we observed that the Court of Appeal in Blackburn had said ―the trial court could ‗reasonably expect counsel to discuss all pertinent matters that will arise or that have arisen in pretrial hearings, including the right to a jury trial and whether to have one.‘ The Court of Appeal added that ‗this was not the first extension of defendant‘s MDO commitment, and the record does not suggest that defendant was unaware of his right to a jury trial notwithstanding the lack of a judicial advisement. Nor does the record suggest that defendant was unaware that counsel intended to waive a jury and had done so or that defendant wanted a jury trial and objected (or would have objected) to counsel‘s waiver.‘ ‖ (Blackburn, supra, 61 Cal.4th at p. 1130.) Despite these circumstances, however, we declined to place the burden on the defendant to show he wanted a jury trial: ―The statute does not require the defendant to affirmatively show he or she wanted a jury trial; a jury trial is the default procedure absent a personal waiver.‖ (Id. at p. 1131.)

Our decision in Tran reached the same holding on the same reasoning with respect to the jury trial guarantee of section 1026.5, subdivision (b)(4), which governs a commitment extension proceeding for a person who pleaded not guilty by reason of insanity. (Tran, supra, 61 Cal.4th at p. 1169.) In the case before us, section 190.4(a) guarantees a jury trial on a special circumstance allegation even if the defendant waives a jury for other phases of the trial: ―If the defendant was convicted by the court sitting without a jury, the trier of fact [on the special circumstance allegation] shall be a jury unless a jury is waived by the defendant and by the people, in which case the trier of fact shall be the court.‖ In Memro, we made clear that section 190.4(a) mandates a jury trial on a special circumstance allegation unless the defendant makes ―a separate, personal waiver.‖ (Memro, supra, 38 Cal.3d at p. 704.) The court today holds that a defendant is not entitled to a jury trial on a special circumstance allegation, even if he has made no separate waiver, unless he can affirmatively show on the record that he wanted a jury trial. This holding inverts the rule stated in section 190.4(a): Whereas the statute requires a jury trial unless the record shows the defendant did not want one, the court allows the denial of a jury trial unless the record shows the defendant did want one. Here, as in Blackburn and Tran, a jury trial is the default procedure mandated by statute. Here, as in Blackburn and Tran, a defendant is entitled to a jury trial without an affirmative showing that he wanted one. And here, as in Blackburn and Tran, a trial court‘s failure to obtain a valid waiver before conducting a bench trial is a structural error requiring automatic reversal. The court purports to distinguish Blackburn and Tran on the ground that the trial court in those cases did not obtain any waiver of a jury trial, whereas the trial court in this case did obtain a jury trial waiver as to the guilt and penalty phases. (Maj. opn., ante, at pp. 40–41.) Here, according to today‘s opinion, the trial court committed ―an error in advisement.‖ (Id. at pp. 33, 35, 38.) This characterization

of the error leads the court to rely on case law holding that errors in advisement do not warrant reversal unless the defendant can show he would have made a different choice had he been properly advised. (Id. at pp. 33–38.) Taking this reasoning on its own terms, I find it telling that the court does not bother to spell out what constituted the ―error in advisement‖ here. Were the court to do so, it would have to acknowledge that the waiver colloquy, culminating in the trial court‘s acceptance of ―a jury waiver on all issues,‖ nowhere advised Sivongxxay that the waiver covered the special circumstance allegation. But this would run directly counter to the court‘s earlier determination that ―[t]he trial court‘s advisement conveyed that defendant had a right to a jury trial with regard to all issues as to which an adverse determination could expose him to the death penalty — which included the special circumstance allegation — and that with his waiver, defendant would be giving up that right.‖ (Maj. opn., ante, at p. 25.) How can the court find ―an error in advisement‖ arising from the trial court‘s failure to mention the special circumstance allegation and yet rely on what ―[t]he trial court‘s advisement conveyed‖ to show that Sivongxxay knowingly and intelligently waived a jury trial on the special circumstance allegation? Although I recognize there is an analytical distinction between the statutory and constitutional validity of a trial court‘s advisement in this context, the distinction is narrow to the point of nonexistent on the facts here. As to the applicability of harmless error analysis, to describe the error here as ―an error in advisement‖ is a euphemistic play on words. Sivongxxay was ―misadvised‖ only in the sense that the trial court told him nothing at all that would have informed him that his jury trial waiver on ―all issues‖ covered the special circumstance allegation. Against the backdrop of a statute requiring a separate waiver, this is tantamount to a complete failure to obtain a proper jury trial waiver on the special circumstance allegation. Sivongxxay did not suffer a

mere error in advisement; he suffered an unlawful deprivation of the jury trial guaranteed by section 190.4(a). The circumstances here do not resemble the contexts in which we have ―assess[ed] whether a defendant would have made a different decision absent an error in advisement.‖ (Maj. opn., ante, at p. 33.) In People v. Martinez (2013) 57 Cal.4th 555, People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, and In re Alvernaz (1992) 2 Cal.4th 924, this court evaluated whether a defendant would have accepted a plea deal had the trial court or counsel properly advised the defendant of the consequences. In People v. Sanchez (1995) 12 Cal.4th 1, we held that a defendant‘s jury trial waiver was valid despite the trial court‘s failure to inform him of the potential maximum and minimum terms of imprisonment. And U.S. v. Williams (7th Cir. 2009) 559 F.3d 607 held that under the federal plain error standard, a district court‘s failure to conduct a proper colloquy before taking a jury trial waiver does not warrant reversal unless the defendant can show he would have chosen a jury trial had he been properly advised. All of these cases presented scenarios in which an error in advisement occurred in the course of the defendant‘s actual decision to waive a particular right. None involved a scenario in which trial court error resulted in no actual decision by the defendant to waive a particular right. It is one thing for a reviewing court to assess how an error might have affected a waiver decision that the defendant actually made; it is quite another for a reviewing court to imagine what decision the defendant would have made if he had been given an opportunity to make a decision at all. The more pertinent authority is Fortune v. U.S. (D.C. 2013) 59 A.3d 949 (Fortune). There the trial court held a jury trial for each of defendant‘s offenses except for his felon in possession charge, which proceeded to a bench trial even though the defendant had not entered a jury waiver. (Id. at p. 954.) District of Columbia Code section 16–705, subdivision (a) provides that where a defendant is

constitutionally entitled to a jury, a ―trial shall be by jury, unless the defendant in open court expressly waives trial by jury and requests trial by the court, and the court and the prosecuting officer consent thereto.‖ On appeal, the court explained that ―the importance of the right to a jury trial, the explicit statutory command in this jurisdiction that trial shall be by jury absent an express waiver by the defendant in open court, and the relative inability of a reviewing court to engage in review of whether the error affected the defendant‘s rights, all counsel in favor of holding that the failure to make the prescribed determination of waiver is a structural error, one that obviates the need for further inquiry into whether the defendant‘s substantial rights were affected by the error.‖ (Fortune, at pp. 956– 957.) In reaching this conclusion, the court ―reject[ed] as speculative the government‘s argument that ‗[q]uite obviously, [Mr. Fortune] was aware that he was entitled to have a jury trial.‘ The record does not tell us what Mr. Fortune did or did not know, and we decline to ascribe knowledge to Mr. Fortune based on the representations of his counsel or the procedural posture of his case.‖ (Id. at p. 955, fn. 5.) Today‘s opinion says Fortune is distinguishable because it involved ―an error of constitutional dimensions.‖ (Maj. opn., ante, at p. 41.) But Fortune did not address constitutional error; it addressed ―the trial court‘s error in failing to seek a waiver of the jury trial‖ in accordance with procedures mandated by a specific statute and by judicially articulated rules pursuant to the statute. (Fortune, supra, 59 A.3d at p. 955; see id. at p. 957 [describing the error as ―the failure to make the prescribed determination of waiver‖].) The court in Fortune declined to look behind the statutory error to ask whether the defendant would have waived a jury trial if the trial court had followed the appropriate waiver procedure. The same approach applies here.

At the core of today‘s decision is the court‘s intuition that there is no basis to think Sivongxxay, having waived a jury trial on the charged crimes and penalty, would not have waived a jury trial on the special circumstance allegation as well. (Maj. opn., ante, at pp. 44–45.) But suppose counsel had advised Sivongxxay not to waive a jury trial on the special circumstance allegation. If Sivongxxay then claimed ineffective assistance of counsel, would we be prepared to say there was ― ‗no rational tactical purpose‘ ‖ for the choice? (People v. Weaver (2001) 26 Cal.4th 876, 926.) Our general reluctance to second-guess defense tactics is one reason why it makes no sense ―[t]o speculate about whether a defendant would have chosen a jury trial if he or she had been in a position to make a personal choice.‖ (Blackburn, supra, 61 Cal.4th at p. 1134.) More fundamentally, the Legislature has determined that in the context of a capital trial, waiver of a jury trial as to some determinations should not be understood to imply waiver of a jury trial as to others. Section 190.4(a) makes clear that even ―[i]f the defendant was convicted by the court sitting without a jury,‖ the trier of fact on the special circumstance allegation ―shall be a jury unless a jury is waived.‖ And section 190.4, subdivision (b) (section 190.4(b)) says that even ―[i]f [the] defendant was convicted by the court sitting without a jury[,] the trier of fact at the penalty hearing shall be a jury unless a jury is waived . . . .‖ In the face of these statutory commands, we should not indulge in ―two-out-of-three‖ reasoning to excuse a failure to take a separate jury trial waiver on the special circumstance allegation, just as we would not indulge such reasoning to excuse a failure to take a separate jury trial waiver on the penalty determination. With all that is at stake in a capital trial, the Legislature saw fit to require a degree of precision in eliciting the defendant‘s choices as to whether a judge or a jury should decide the issues at each step of the proceeding. This court should faithfully enforce the Legislature‘s directive.

Today‘s harmless error analysis changes the rules governing a capital defendant‘s right to a jury trial on a special circumstance allegation. Despite the plain language of section 190.4(a) and our decision in Memro, it does not really matter whether the trial court takes a separate jury trial waiver; that is now a mere technicality. What ultimately matters is whether the defendant has made a record showing that he wanted a jury trial on the special circumstance allegation. To be sure, the premise of harmless error doctrine is that ―few if any trials are entirely free from error, and an appellate court would impair the basic functioning of the criminal justice system if it were to reverse a conviction whenever some slight misstep occurred.‖ (People v. Jackson (2014) 58 Cal.4th 724, 789–790 (conc. & dis. opn. of Liu, J.).) But even if most types of error can be harmless, we must be cautious in deploying this doctrine because ―to say that a conviction may stand in spite of underlying error is at odds with the norm of legality that justifies the state‘s imposition of criminal punishment in the first place. A declaration that an error is harmless is, in essence, a conclusion that even though a legal right has been violated, there will be no remedy for that violation.‖ (Id. at p. 790.) Here, the court‘s particular form of harmless error inquiry does not merely foreclose a remedy; it negates the legal right itself. Because there was no valid jury trial waiver under section 190.4(a), the true finding on the special circumstance allegation and the death judgment should be reversed. III. I also disagree with the court‘s conclusion that Sivongxxay knowingly and intelligently waived his right to a jury trial on the penalty determination. The trial court advised Sivongxxay that upon a finding of guilt, ―we would then proceed to a penalty phase, where the district attorney would present aggravation evidence. Through your — you, through your attorney, would have a right to present

mitigation evidence, and it would fall upon me to make the decision as to the appropriate punishment, which could result in a death penalty sentence.‖ Sivongxxay was not advised that a jury must achieve unanimity in order to render a penalty verdict. The significance of this omission must be considered in light of the jury‘s function at the penalty phase. Unlike its role at the guilt phase, the jury‘s role in a capital penalty trial ―is not merely to find facts, but also — and most important — to render an individualized, normative determination about the penalty appropriate for the particular defendant — i.e., whether he should live or die.‖ (People v. Brown (1988) 46 Cal.3d 432, 448; see People v. Manriquez (2005) 37 Cal.4th 547, 589 [― ‗ ―the sentencing function is inherently moral and normative, not factual‖ ‘ ‖].) This inherently ― ‗moral endeavor‘ ‖ (People v. Moon (2005) 37 Cal.4th 1, 40), which is designed ― ‗to maintain a link between contemporary community values and the penal system‘ ‖ (Woodson v. North Carolina (1976) 428 U.S. 280, 295), renders a defendant‘s decision to waive a jury trial at the penalty phase particularly consequential. The crux of the waiver decision is whether to submit the life-or-death penalty decision to a judge for his or her sole determination or to 12 lay jurors of differing backgrounds who must unanimously agree on a death sentence before it may be imposed. The importance of jury unanimity in the normative determination of the appropriate penalty has a character distinct from the importance of jury unanimity in the factual adjudication of guilt. Other courts have recognized as much. In Commonwealth v. O’Donnell (Pa. 1999) 740 A.2d 198, the trial court had made clear during its penalty phase waiver colloquy that the defendants were ―entitled to a jury trial in the death penalty phase‖ and that they had the right to present evidence ―in mitigation of the application of the death penalty.‖ (Id. at p. 212.) The Pennsylvania high court nonetheless found the defendants‘ jury trial waiver constitutionally inadequate, principally because the

trial court had not explained that a sentencing jury must be unanimous in its verdict: ―Given the unique role a sentencing jury plays in the penalty phase of a capital case [citation], it . . . seems appropriate for any colloquy preceding a trial court‘s acceptance of a capital defendant‘s waiver to a penalty-phase jury to inform the defendant of the requirement under Pennsylvania law that a penalty- phase jury render a unanimous verdict. The defendant should be asked, in other words, whether he understands that, if elected, a twelve member jury would be required to unanimously agree that a sentence of death is appropriate before imposing such a verdict on a defendant.‖ (Id. at p. 213; see also State v. Martinez (N.M. 2002) 43 P.3d 1042, 1048–1049 [―As a matter of pure probability, the requirement of jury unanimity means that while a defendant who is sentenced by a judge has only one chance of avoiding the death penalty, a defendant who is sentenced by a jury has twelve. [Citation.] We agree with Defendant that a waiver of the right to be sentenced by a jury cannot be considered knowing and intelligent unless the defendant is aware of this critical aspect.‖]; Miller v. Beard (E.D.Pa. 2016) 214 F.Supp.3d. 304, 358 [granting habeas corpus relief to defendant whose waiver of a penalty phase jury was not knowing and voluntary because trial court failed to explain state unanimity requirements for sentencing juries].) In this case, not only did the trial court give no advisement concerning unanimity; the record also contains no indication that Sivongxxay discussed the waiver with counsel or that the trial court, prosecutor, or defense counsel ever asked Sivongxxay whether he understood the nature of the right he was giving up. Further, because capital sentencing is the only context in which California law authorizes a jury to decide the appropriate punishment for a criminal offense, Sivongxxay‘s prior convictions for noncapital offenses in other jurisdictions

provide no basis to infer that he understood the significance of a waiver of his right to a jury trial at the penalty phase. The circumstances in this case differ markedly from those in which we have found a knowing and intelligent penalty phase waiver. In People v. Weaver (2012) 53 Cal.4th 1056, 1076, the trial court was ―exceptionally careful in taking defendant‘s jury waiver‖; the court accepted a written penalty phase waiver form and asked defendant to reaffirm his waiver before the start of the penalty phase. In Scott, the trial court ―explained the nature of a penalty trial,‖ including the jury unanimity requirement; the defendant confirmed he had discussed the waiver with counsel; and both the prosecutor and trial court described in detail the penalty phase procedure. (Scott, supra, 15 Cal.4th at p. 1208.) In Diaz, the trial court explained the jury unanimity requirement; ―defendant acknowledged that he had thoroughly discussed the jury waiver with his attorney‖; and ―when the court asked whether he had any questions regarding the waiver, or wished to discuss it further with counsel, defendant answered in the negative.‖ (Diaz, supra, 3 Cal.4th at p. 571.) And in Robertson, the trial court explained the jury unanimity requirement, and the defendant‘s ― ‗length[y]‘ ‖ consultation with counsel ―over the course of several days‖ allowed us to infer that counsel properly advised the defendant of the nature of a penalty phase jury and the consequences of waiver. (Robertson, supra, 48 Cal.3d at pp. 36–37 & fn. 5.) We have never upheld a penalty phase jury trial waiver on a record of advisement as thin as the one here. The record does not show that Sivongxxay waived his right to a jury trial on the penalty determination ― ‗ ― ‗with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.‘ ‖ ‘ ‖ (Collins, supra, 26 Cal.4th at p. 305.) Because Sivongxxay was unconstitutionally denied a jury trial at the penalty phase, the penalty judgment cannot stand.

Finally, the penalty phase waiver has an additional infirmity: The waiver colloquy suggested, contrary to section 190.4(b), that Sivongxxay had no separate right to a jury trial at the penalty phase if he elected a bench trial at the guilt phase. After briefly describing how a jury is selected and stating that the district attorney has the burden to prove guilt beyond a reasonable doubt, the trial court said: ―In a court trial, I would hear the evidence. I, alone, would make the decision on whether that evidence was sufficient to prove your guilt beyond a reasonable doubt. [¶] In the event I made such a finding, . . . we would then proceed to a penalty phase . . . . [A]nd it would fall upon me to make the decision as to the appropriate punishment, which could result in a death penalty sentence.‖ (Italics added.) The italicized language conveyed that in the event that a bench trial resulted in a finding of guilt, the prerogative to decide the appropriate punishment would remain with the court. Yet section 190.4(b) makes clear that ―[i]f defendant was convicted by the court sitting without a jury[,] the trier of fact at the penalty hearing shall be a jury unless a jury is waived . . . .‖ It is not uncommon for capital defendants who opt for a bench trial on guilt to have a jury trial on the penalty determination. (See, e.g., Cunningham, supra, 61 Cal.4th at pp. 616–617; People v. Mai (2013) 57 Cal.4th 986, 993–994.) The trial court‘s advisement erroneously implied that the jury trial waiver was an all-or-nothing decision; at the very least, it did not make clear that Sivongxxay had the right to a jury trial on penalty even if he chose to waive a jury trial on guilt. Today‘s opinion says ―[w]e do not believe that the colloquy is reasonably susceptible to this interpretation.‖ (Maj. opn., ante, at p. 48, fn. 19.) But what other reasonable interpretation is there? The court has no answer, let alone an answer more plausible than Sivongxxay‘s straightforward interpretation. As with the trial court‘s violation of section 190.4(a), the failure to elicit a separate waiver as to the penalty determination as required by section

of a jury‘s deliberation. A bench trial also obviates the need to worry about the risk of a mistrial if the jury is divided or subject to improper influences. Indeed, one study of courts in California and two other states found that the median length of criminal jury trials was roughly three times that of criminal bench trials. (Nat. Center for State Courts, On Trial: The Length of Civil and Criminal Trials (1988) pp. 8-9.) This backdrop helps explain why the Legislature in 1977 erected –– and the voters in 1978, although repealing the statute, retained –– an elaborate procedural framework protecting a capital defendant‘s right to a jury trial at each stage of the proceeding. In restoring the death penalty following its invalidation by this court and the United States Supreme Court, the Legislature and the voters took special care to ensure that a jury trial would be had at each phase of the death penalty trial unless the defendant personally and with specificity waived it: ―If the defendant was convicted by the court sitting without a jury, the trier of fact [on the truth of each alleged special circumstance] shall be a jury unless a jury is waived by the defendant and by the people.‖ (§ 190.4, subd. (a), italics added.) Likewise, ―[i]f the defendant was convicted by a plea of guilty, the trier of fact [on the truth of each alleged special circumstance] shall be a jury unless a jury is waived by the defendant and by the people.‖ (Ibid., italics added.) And even if the defendant was convicted of murder and any special circumstance found true in a bench trial, ―the trier of fact at the penalty hearing shall be a jury unless a jury is waived by the defendant and the people . . . . If the defendant was convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived by the defendant and the people.‖ (Id., subd. (b), italics added.) Thus, a capital defendant will have a jury decide the truth of any special circumstance allegations and the appropriate penalty, despite having waived a jury in prior proceedings, unless ―by the consent

requires ―that an accused whose special circumstance allegations are to be tried by a court must make a separate, personal waiver of the right to a jury trial.‖ (Memro, at p. 704, italics added.) We distinguished Berutko‘s general rule and the prior conviction statutes on which it relied, and for good reason. The prior conviction statutes reflected an entirely different ― ‗spirit and intent‘ ‖ than what could be gleaned from the ―separate jury waiver . . . necessary for special circumstance allegations in death penalty legislation.‖ (Memro, at p. 702, fn. 52.) Under the death penalty scheme, a separate waiver requires a showing that ―the defendant is aware that the waiver applies to each of these aspects of trial‖ (People v. Diaz (1992) 3 Cal.4th 495, 565 (Diaz)) — i.e., guilt and special circumstances — as well as proof that the ―waiver of the jury-trial right on a special circumstance actually cover[s] the special circumstance.‖ (People v. Wrest (1992) 3 Cal.4th 1088, 1105.) No such waiver occurred here. (Maj. opn., ante, at pp. 29-30.) So it is quite puzzling that even as the majority concedes the lack of a waiver, it nonetheless concludes defendant knowingly and intelligently waived his federal constitutional right to have a jury decide the truth of the special circumstance allegation. What makes a jury waiver knowing and intelligent is that it was ―made with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.‖ (Moran v. Burbine (1986) 475 U.S. 412, 421; accord, People v. Weaver (2012) 53 Cal.4th 1056, 1071-1072 [applying this standard to a jury waiver].) In this case, though, nothing made defendant aware that he had the right to a jury trial on the truth of the special circumstance allegation. Indeed, defendant was given the misimpression that his capital trial would consist only of an initial guilt phase, during which the court ―would make the decision whether that evidence was sufficient to prove your guilt beyond a reasonable doubt,‖ and ―[t]hen, and only then, would we get to a penalty phase.‖

He was never informed that if the prosecutor established his guilt beyond a reasonable doubt, the trier of fact would then, and only then, consider the truth of the special circumstance allegation, nor did anyone ever refer to a ―special circumstance‖ or other type of ―allegation‖ whose truth would make him eligible for the death penalty. And of course, defendant was never informed that his waiver encompassed the right to a jury trial on such an allegation. Recognizing the colloquy‘s inadequacies, the majority deploys vague references invoking ―other events before and after the waiver was entered‖ (maj. opn., ante, at p. 24, fn. 7) as evidence of what it repeatedly — and inaccurately — calls a ―comprehensive‖ jury waiver. (Id. at pp. 21, 23, fn. 7, 26.) The record‘s deficiencies are not so easily evaded. Defendant‘s out-of-state convictions for robbery and unauthorized use of a vehicle provide no basis for inferring that he understood his trifurcated right to a jury under California‘s death penalty scheme in general or his right to have a jury decide the truth of the special circumstance in particular. (See People v. Brown (Ill. 1996) 661 N.E.2d 287, 301 [―The record reveals . . . that the defendant had no previous experience which involved a death penalty hearing and, thus, there is no basis to presume that the defendant understood that he had the right to a jury for death sentencing and, in particular, that he had this right even if he chose a bench trial‖].) The majority also purports to rely on silence –– specifically, the defendant‘s silence in response to the trial court‘s assertion that ―[w]e‘ll show a jury waiver on all issues, confirm the matter for January the 11th.‖ (See maj. opn., ante, at p. 14 & fn. 2.) Given the trial court‘s erroneous description of the ―issues‖ to be tried as consisting solely of a guilt phase and a penalty phase, however, it is difficult to comprehend how the trial court‘s summary could somehow have expanded the preceding waiver to encompass the special circumstance allegation. In any event, silence here is the problem, not the solution: It is well-established

under the California Constitution that neither silence nor acquiescence implies a waiver of the right to a jury trial. The defendant must instead expressly waive the right. (People v. Ernst (1994) 8 Cal.4th 441, 445.) Accordingly, cases from jurisdictions allowing counsel to waive jury on the defendant‘s behalf shed no light on the issue before us. (See U.S. v. Boynes (4th Cir. 2008) 515 F.3d 284, 287 [defendant ―insisted‖ on waiving jury and explained to counsel why he ―would have a better chance‖ with a judge]; U.S. v. Page (5th Cir. 1981) 661 F.2d 1080, 1083; [defendant conferred with counsel ―at length‖ and made a ―considered, tactical decision that a bench trial would be to [his] advantage‖]; State v. Baxter (Mo. 2006) 204 S.W.3d 650, 654 [where counsel waived jury, and the prosecutor announced ―in open court that there was an agreement that the charges would be reduced in exchange for a waiver,‖ ―[t]here is no reason to require that the judge question the defendant on the record . . . .‖].) The only exchange involving defendant — and the one on which the majority is therefore forced to place principal reliance — is defendant‘s assent to the trial court‘s final question at the pretrial waiver hearing: ―Do you give up your right to a jury trial and agree that this Court, alone, will make those decisions . . . ?‖ (Quoted by maj. opn., ante, at p. 24.) But where no one — not the trial court, not the prosecutor, and not defense counsel — ever mentioned that a trial would also occur on the truth of the special circumstance and that he was being asked to waive his right to a jury trial at such a proceeding, it is difficult to credit the majority‘s contention that the ―advisements the trial court provided to defendant before taking his waiver, together with the other surrounding circumstances, confirm that defendant knowingly and intelligently relinquished his right to a jury trial for this allegation.‖ (Id. at p. 23.) In short, the majority fails to identify anything in the record supporting its conclusion that defendant was aware of the nature of the right he was abandoning or the consequences of abandoning it.

Those consequences depend in part on a given jurisdiction‘s law. The majority‘s approach, for example, seems to track Ohio’s death penalty scheme, which provides for an all-or-none waiver of what the statute treats as a unitary jury trial right: The sentencer will be ―the trial jury and the trial judge, if the offender was tried by jury,‖ but otherwise must be ―the panel of three judges that tried the offender upon the offender‘s waiver of the right to trial by jury.‖ (Ohio Rev. Code Ann. § 2929.03(C)(2)(b).) Thus, under Ohio law, the ―[t]he waiver of the right to trial by jury in a capital case applies to both the guilt phase and the penalty phase of the trial.‖ (State v. Foust (Ohio 2006) 823 N.E.2d 836, 852.) But Ohio law is materially different from California‘s, which maintains a jury trial as the default even if the defendant has waived jury at a previous phase of the trial. (See People v. Hovarter (2008) 44 Cal.4th 983, 1027.) So Foust sheds no light on what constitutes a knowing and intelligent waiver in the context of the California death penalty scheme. If we are going to look beyond California for insight, we should instead train attention on statutory schemes resembling our own –– such as those in Illinois and Pennsylvania. In People v. Brown, supra, 661 N.E.2d 287 (Brown) and Commonwealth v. O’Donnell (Pa. 1999) 740 A.2d 198 (O’Donnell), the Supreme Courts of Illinois and Pennsylvania each held that a jury waiver at the initial phase of a death penalty trial did not constitute a knowing and intelligent waiver of a jury at the penalty phase. (Brown, at pp. 298-299; O’Donnell, at pp. 212-214.) Like California — and unlike Ohio — Illinois and Pennsylvania provide for a jury trial at the penalty phase even if the defendant was convicted at a bench trial. (See 720 Ill. Comp. Stat. 5/9-1(d) [―The proceeding shall be conducted: [¶] . . . [¶] (2) before a jury impanelled for the purpose of the proceeding if: [¶] A. the defendant was convicted upon a plea of guilty; or [¶] B. the defendant was convicted after a trial before the court sitting without a jury . . . .‖]; 42 Pa. Cons. Stat. § 9711(b) [―If the defendant has waived a jury or

pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose unless waived by the defendant with the consent of the [prosecution]‖].) Both state supreme courts construed their statutory schemes to require a jury trial at the penalty phase unless the defendant specifically waived that right. (Brown, at p. 298 [―The statute further provides that the death sentencing proceeding may be conducted before the trial judge alone only if the defendant ‗waives a jury for the separate proceeding‘ ‖]; O’Donnell, at p. 211 [the statute ―clearly indicates that if the defendant has waived a jury trial in the guilt phase, as Appellant did here, the defendant is still entitled to have a jury determine his sentence unless he specifically waives that right without objection by the Commonwealth‖].) Although neither court then believed that the defendant had a federal constitutional right to a jury trial at the penalty phase (see Spaziano v. Florida (1984) 468 U.S. 447, 464-465, overruled by Hurst v. Florida (2016) ___ U.S. ___, ___ [136 S.Ct. 616, 623]), they nonetheless imposed a requirement that the jury waiver be knowing, intelligent, and voluntary. (Brown, at p. 298; O’Donnell, at p. 212.) These state supreme courts held that a jury waiver made without specifying what was being waived was insufficient. In the Illinois case, the defendant was advised –– and indicated he understood –– that he would lose his ― ‗constitutional right to a jury trial in this case, and this case will then be heard and decided by this court without a jury[].‘ ‖ (Brown, supra, 661 N.E.2d at p. 297.) In finding the waiver was neither knowing nor intelligent as to the penalty phase, the Supreme Court of Illinois stated that it was ―incumbent upon the trial judge to admonish the defendant in order to clarify the scope of his intended jury waiver,‖ and that ―at a minimum the trial judge should have advised the defendant of his right to a jury for sentencing.‖ (Id. at p. 299.) Similarly, the Supreme Court of Pennsylvania found an inadequate waiver when the record failed to show that the defendant

understood she ―ha[d] the right to be sentenced by a penalty-phase jury‖ and was ―devoid of any inquiry indicating that [she] had sufficient knowledge of what, in fact, she was waiving.‖ (O’Donnell, supra, 740 A.2d at p. 213; accord, Taylor v. Horn (3d Cir. 2007) 504 F.3d 416, 449 [―we cannot presume, based on a silent record, that he knowingly and voluntarily waived his state law right to a penalty phase jury‖].) Here, of course, defendant had a federal constitutional right to require that a jury decide the truth of the special circumstance. (People v. Weaver, supra, 53 Cal.4th at p. 1074; see Ring v. Arizona, supra, 536 U.S. at p. 589.) So the failure to obtain a knowing and intelligent jury waiver — or any waiver at all — with respect to the special circumstance was federal constitutional error. But Brown and O’Donnell are otherwise similar to this case in all important respects: The trial court record failed to show that defendant understood the proceedings would require a separate phase, during which his eligibility for the death penalty would be determined; that he was aware he had a right to a jury at that phase of the trial; or that he was aware he was waiving jury trial as to that part of the proceedings. Indeed, the existence of the special circumstance was never mentioned. That makes for quite a contrast with Diaz –– on which the majority misplaces reliance — where the defendant (who was charged with 12 multiple-murder special circumstances) acknowledged that his waiver ―applied to ‗both phases . . . of the special circumstances case‘ ‖ (Diaz, supra, 3 Cal.4th at p. 564) and stated that ―he had discussed the matter ‗quite thoroughly‘ with his counsel‖ (id. at p. 565). It should be crystal clear that no decision by this court or the high court has ever found a knowing and intelligent waiver of the trifurcated right to a jury without proof that the defendant was aware of his right to a jury trial at each of the three stages. We distort the meaning of the words ―knowing‖ and ―intelligent‖ when we find such a waiver even where the defendant fails to grasp that he has a

right to have a jury decide the truth of the separate allegation that will render him eligible for the death penalty. The gist of defendant‘s claim is that the record fails to show he was aware of his right to a jury trial on this phase of the trial or that he waived it. State v. Williams (Or.Ct.App. 2005) 104 P.3d 1151 presents an analogous situation. Williams similarly was unaware that he had the right to a jury finding of the facts that could trigger an enhanced sentence; his trial had predated Blakely v. Washington (2004) 542 U.S. 296, which held that a criminal defendant has a federal constitutional right to have a jury find the facts that could subject him to a sentence greater than the statutory maximum. The Williams court reasoned that no waiver could be implied in those circumstances unless the record showed that the defendant was aware both of ― ‗the right to have a jury determine the aggravating factors‘ ‖ and that ― ‗he was waiving that right.‘ ‖ (Williams, at p. 1152; accord, People v. French (2008) 43 Cal.4th 36, 48 [because the defendant entered his plea pre-Blakely, his jury waiver on the substantive offense ―did not encompass his right to a jury trial on any aggravating circumstances‖]; State v. Schofield (Me. 2005) 895 A.2d 927, 930-931.) Unlike the majority, I see no meaningful distinction in the fact that Williams was unaware of his jury trial right because of an intervening change in the law, while defendant was unaware of his jury trial right because it was never mentioned anywhere in the colloquy. (Cf. maj. opn., ante, at p. 22, fn. 7.) In neither situation does the record show that ―the defendant ‗knows what he is doing and his choice is made with eyes open.‘ ‖ (Iowa v. Tovar (2004) 541 U.S. 77, 88.) From all these reasons I draw an unremarkable conclusion. A defendant does not knowingly and intelligently waive his federal constitutional right to have a jury determine the truth of a special circumstance allegation where there is nothing in the record to indicate that the defendant was aware of the right to have a

We recently examined the effect of the failure to obtain a valid jury waiver in the context of a trial to extend the civil commitment of a mentally disordered offender (MDO) (Blackburn, supra, 61 Cal.4th 1113) and a person originally committed after pleading not guilty by reason of insanity (NGI) to a criminal offense (People v. Tran (2015) 61 Cal.4th 1160). The MDO and NGI commitment statutes, like section 190.4, subdivision (a), provide that ―[t]he trial shall be by jury unless waived by both the person and the [People].‖ (§§ 1026.5, subd. (b)(4), 2972, subd. (a), italics added.) In neither case, however, had the trial court advised the committee of his right to a jury trial or elicited a personal jury waiver from the committee. (Blackburn, at pp. 1123-1125; Tran, at pp. 1166- 1168.) We held that the failure to obtain the statutorily required jury trial waiver qualified as a structural defect in the proceedings that could not be cured by resort to harmless error analysis. (Blackburn, at pp. 1133-1136; Tran, at pp. 1169-1170.) In words that have special force here, we declared that ―[i]f the case now before us were a criminal matter involving the invalid waiver of a state or federal constitutional jury trial right, there could be no doubt that the error would constitute a ‗miscarriage of justice‘ requiring reversal without regard to the strength of the evidence.‖ (Blackburn, supra, 61 Cal.4th 1133; see People v. Ernst, supra, 8 Cal.4th at p. 443 (Ernst) [―a judgment in a criminal case resulting from a court trial must be reversed if the defendant did not expressly waive the right to a trial by jury‖].) We then reasoned that ―[t]he failure to obtain a valid jury trial waiver‖ — regardless of whether the source of the jury trial right was constitutional or merely statutory — ―defies ordinary harmless error analysis.‖ (Blackburn, at p. 1134.) Indeed, ―[t]o speculate about whether a defendant would have chosen a jury trial if he or she had been in a position to make a personal choice would pose insurmountable difficulties . . . . Accordingly, we treat a trial court‘s failure to obtain a required personal jury trial waiver as tantamount to the

denial of a jury trial, and as such, it constitutes a ‗miscarriage of justice‘ under California Constitution, article VI, section 13.‖ (Ibid.; see People v. Holmes (1960) 54 Cal.2d 442, 444.) Our sister courts are in accord. (Fortune v. U.S. (D.C. 2009) 59 A.3d 949, 956-957 [―the importance of the right to a jury trial, the explicit statutory command in this jurisdiction that trial shall be by jury absent an express waiver by the defendant in open court, and the relative inability of a reviewing court to engage in review of whether the error affected the defendant's rights, all counsel in favor of holding that the failure to make the prescribed determination of waiver is a structural error‖]; State v. Williams, supra, 104 P.3d at p. 1153 [―We cannot assume that defendant, by waiving a jury trial on the burglary charge, intended to waive the right to have a jury determine the facts required for imposition of an enhanced dangerous offender sentence‖].) Despite widespread agreement that harmless error analysis does not apply — chiefly because it is impossible to reconstruct what choice a defendant would have made when he was never actually presented with the choice — the majority nonetheless contends that the trial court‘s failure to obtain a jury waiver covering this critical stage of a death penalty proceeding is always harmless, unless the defendant can demonstrate a reasonable probability he would not have waived jury trial if actually offered the opportunity to do so. (Maj. opn., ante, at pp. 44.) To subject the failure to elicit a defendant‘s waiver of his jury trial right to retrospective speculation of what the defendant would have decided is to dilute the importance of a right with abiding structural significance. So it is not surprising that the majority is unable to cite even a single case holding that this harmless error analysis applies when, as here, a defendant has properly preserved his claim that he never waived his right to a jury trial. The majority relies instead on cases

— easily distinguishable from this one — where the defendant waived a jury, but claimed his jury waiver was a product of a misadvisement. In U.S. v. Williams (7th Cir. 2009) 559 F.3d 607, for example, the defendant knew he had a right to a jury trial and twice waived it in open court. The Seventh Circuit determined that the defendant had not preserved his claim that the trial court erred in failing to secure a written jury waiver and to mention certain advisements. (Id. at pp. 607-609.) Only then did the court conclude that the defendant had failed to discharge his burden under plain error review to establish prejudice. (Id. at p. 613.) In State v. Keller (Iowa 2009) 760 N.W.2d 451, the defendant executed a written jury waiver, but any oral colloquy went unreported. The court concluded that counsel‘s failure to ensure that the advisements were made on the record was not prejudicially ineffective. (Id. at pp. 452-453; accord, People v. Maxwell (Ill. 1992) 592 N.E.2d 960, 974 [the defendant executed a written jury waiver and waived jury trial in open court; counsel‘s erroneous view about the admissibility of other-crimes evidence was ―irrelevant‖ to her advice to the defendant about the jury waiver; and even if counsel were ineffective, ―[i]t is clear in this case that defense counsel would have offered the same recommendation‖ regardless of the evidence‘s admissibility]; Commonwealth v. Houck (Pa. 2008) 948 A.2d 780, 788 [the defendant executed a written jury waiver and waived jury trial in open court; he was not entitled to relief on his claim of misadvisement because he failed ―to demonstrate that his . . . understanding of the length of the potential sentence was a material factor in making the decision to waive a jury trial‖]; Commonwealth v. Mallory (Pa. 2008) 941 A.2d 686, 697 [the defendants ―explicitly waived their rights to a jury, in writing, on the record‖ but claimed their attorneys were ineffective in failing to arrange an oral colloquy].)

defendant was present in court when his attorney announced ― ‗we‘re prepared to waive a jury as to both phases of the trial [guilt and sanity] at this time, and my client is prepared to go on the record to that effect‘ ‖; when his attorney subsequently stated that ― ‗We are prepared to waive jury as to both issues‘ ‖; and when the trial court declared ― ‗Jury waived by both sides. It‘s been done. [¶] Is this going as a nonjury case?‘ ‖ and ―[b]oth sides responded affirmatively.‖ (Ernst, supra, 8 Cal.4th at p. 444.) We unanimously rejected the People‘s invitation to examine the totality of the circumstances and ―find, under that test, that defendant validly waived his right to a jury trial despite his failure to do so expressly.‖ (Id. at p. 448.) Similarly, in People v. Collins (2001) 26 Cal.4th 297, where we found a jury waiver involuntary because the trial court had advised the defendant he would receive ― ‗some benefit‘ ‖ by forgoing a jury trial, we did not inquire whether the defendant would have waived jury trial in the absence of the unspecified benefit. (Id. at p. 302, italics omitted.) In both instances, the failure to obtain a proper jury waiver was structural error that defied harmless error analysis. (Ernst, at pp. 448-449; Collins, at pp. 310-313.) The same is true here. Practical considerations also distinguish the misadvisement cases from the situation now before us. In the misadvisement context, we assign the burden to demonstrate prejudice to the defendant because of the ease by which a defendant might assert, after the fact, that virtually any kind of misadvisement induced the defendant‘s jury waiver (or plea), and the difficulty in refuting such a claim. (See In re Alvernaz, supra, 2 Cal.4th at p. 938; accord, Commonwealth v. Houck, supra, 948 A.2d at pp. 788-789.) But the issue here is more subtle: not whether defendant would have made the same choice had he been properly advised, but what choice he might have made had he actually been offered the opportunity to choose. Just as we do not inquire (after the fact) whether a defendant would have entered a plea to an offense for which the defendant was never asked to enter a

plea, we do not inquire (after the fact) whether a defendant would have waived jury trial when the defendant was never presented with the opportunity to waive it. The majority finds it significant — in fact, determinative — that defendant entered some kind of jury waiver, and seeks to relegate the remainder of defendant‘s claim to a dispute about the adequacy of the advisement he received. (Maj. opn., ante, at p. 40.) But the defect here goes well beyond merely an error in the advisement. This is not a situation like Berutko, where the defendant was unaware that his jury waiver as a matter of law included a waiver of jury as to the prior conviction allegation. The jury waiver here did not, as a matter of law, include a waiver of his right to a jury trial as to the special circumstance. Under California law, the right to a jury trial for the special circumstance is divisible from the other jury trial rights — and unless there is ―a ‗separate, personal‘ waiver of the right to a jury for a special circumstance allegation, above and beyond the standard guilt phase and penalty phase waiver‖ (maj. opn., ante, at p. 28), the defendant is entitled to a jury trial on the special circumstance allegation. (§ 190.4, subd. (a).) Thus, despite a waiver of jury at the guilt phase, ―the trial court must presume the defendant wants a jury‖ to try the subsequent phases of a capital trial. (People v. Hovarter, supra, 44 Cal.4th at p. 1026, italics added.) The majority‘s harmless error test, which places the burden on a defendant who has waived a jury at the guilt phase to show that he would not have waived jury trial at a subsequent phase, improperly nullifies the effect of that presumption. The majority also contends that nothing in the language, structure, or context of section 190.4, subdivision (a) would support the conclusion that the failure to obtain a separate, personal waiver constitutes structural error. (Maj. opn., ante, at pp. 32.) I disagree. In four different sentences, section 190.4 emphatically declares that the trier of fact ―shall be a jury, unless a jury is waived,‖ notwithstanding a waiver of jury (or entry of a plea) at a prior phase.

Moreover, the language guaranteeing a jury trial for the special circumstance allegation tracks almost verbatim the language guaranteeing a jury trial for the penalty determination. (Compare § 190.4, subd. (a) with id., subd. (b).) There is thus no indication that the Legislature in 1977, or the voters in 1978, wanted to extend a lesser form of protection to the jury trial right for special circumstances than to the jury trial right for the penalty determination. Surely the majority does not mean to suggest that the failure to obtain a capital defendant‘s jury waiver for the penalty trial would necessarily be harmless under section 190.4, unless the defendant could demonstrate that he would not have waived jury trial had he been offered the opportunity. The language used in section 190.4 also differs substantially from those statutory provisions supporting the general rule ― ‗that where a defendant waives a jury trial he is deemed to have consented to a trial of all of the issues in the case sitting before the court sitting without a jury.‘ ‖ (Maj. opn., ante, at p. 21; cf. People v. Vera (1997) 15 Cal.4th 269, 277 [applying the general rule ―[w]here the whole cause — substantive offenses and sentencing allegations — is tried in a unitary proceeding . . . .‖ (italics added)].) By creating a completely different structure for the death penalty law — one much more protective of a defendant‘s right to a jury trial — the Legislature and the voters signaled that a defendant‘s right to a jury trial for the special circumstance and penalty phases merited more respect than a defendant‘s right to a jury trial on a mere sentencing allegation or enhancement. A rule rendering the failure to elicit a separate, personal jury waiver invariably harmless on appeal would plainly undermine the statute‘s purpose. What section 190.4 does is set an exacting standard for the waiver of a jury at each step of a death penalty proceeding –– and for good reason. Protecting the constitutional right to a jury trial in a death penalty proceeding is the responsibility of this court. So is ensuring that statutory protections for that right enacted by the

People v. Sivongxxay

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