People v. Hernandez CA2/6

DISCUSSION

We conclude that, under the totality of the circumstances, appellant’s jury trial waiver was not knowing and intelligent. (People v. Sivongxxay (2017) 3 Cal.5th 151, 166 (Sivongxxay).) The federal and state constitutions afford defendants the right to a jury trial. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16.) However, a “jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant’s counsel.” (Cal. Const., art. I, § 16.)

2 A jury waiver must be “‘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,”’”’” and “‘voluntary “‘“in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.”’”’” (Sivongxxay, supra, 3 Cal.5th at p. 166.) “We uphold the . . . jury waiver ‘“if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.”’” (People v. Daniels (2017) 3 Cal.5th 961, 991 (conc. & dis. opn. of Cuéllar, J.); accord, id. at p. 1018 (conc. and dis. opn. of Corrigan, J.); People v.…