People v. Cheso CA3

Filed 3/25/22 P. v. Cheso CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yuba) ----

THE PEOPLE, C094124

Plaintiff and Respondent, (Super. Ct. No. CRF20-00460)

v.

JOHN JEREMY CHESO,

Defendant and Appellant.

Defendant John Jeremy Cheso appeals from a conviction for attempted second degree robbery following a court trial. Defendant contends, and the People agree, that he did not knowingly, intelligently, and voluntarily waive his right to a jury trial because the trial court did not adequately advise him of his rights under the Sixth and Fourteenth Amendments. We will reverse the judgment. BACKGROUND As the facts of defendant’s attempted second degree robbery conviction do not bear on our decision, they are only briefly recounted here. In summary, defendant and

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D.M. got into an argument outside of a casino in which defendant demanded $300 to pay off a debt D.M. owed to defendant. D.M. responded that he did not have money to pay the debt, prompting defendant to reach for D.M.’s cellular telephone. D.M. turned and ran back toward the casino and defendant pursued him until defendant ultimately punched D.M. in the back of his head. Following a court trial on charges of attempted second degree robbery (Pen. Code, § 211), defendant was convicted and sentenced to 24 months in state prison. In its colloquy regarding defendant’s waiver of his right to a jury trial, the trial court stated, “[Defendant], my understanding is that you are prepared to waive your right to a jury, we would shorten time, and we would put the matter on for Court trial tomorrow afternoon; is that correct?” Defendant answered affirmatively. Turning to the People, the court then stated, “And [prosecutor], in exchange for that, you are agreeing that if there is a guilty finding, that he would be exposed to no more than the mid term on this count.” The People agreed. Later on in the same hearing, the court asked both attorneys whether they joined in the waiver of a jury, and both agreed. The court did not otherwise advise defendant of what rights he was waiving, nor did it confirm defense counsel had done so. DISCUSSION Defendant contends he did not make a knowing, intelligent, and voluntary waiver of his right to a jury trial because the court failed to apprise him of each of the rights he was forfeiting by consenting to a court trial. The People not only concede the issue, but further argue that the court never entered a valid waiver from defendant at all. Criminal defendants have the constitutional right to a jury trial. (U.S. Const., 6th Amend.; Cal. Const. art. I, § 16; People v. Sivongxxay (2017) 3 Cal.5th 151, 166 (Sivongxxay).) “[T]he denial of a defendant’s constitutional right to jury trial on a charged offense constitutes structural error that requires reversal without consideration of the strength of the evidence.” (People v. French (2008) 43 Cal.4th 36, 52, fn. 8.) While