Opinion
B296838
05-05-2020
THE PEOPLE, Plaintiff and Respondent, v. DOMINIQUE KEY, Defendant and Appellant.
Richard B. Lennon and Nancy Gaynor, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Los Angeles County Super. Ct. No. BA470677 APPEAL from a judgment of the Superior Court of Los Angeles County, Mark S. Arnold, Judge. Affirmed. Richard B. Lennon and Nancy Gaynor, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Defendant and appellant Dominique Key and his attorney told the trial court they wanted to waive jury and have a bench trial. The prosecutor and the court agreed to Key's request. The court found Key guilty of two counts of assault with a deadly weapon and acquitted him on a third count. The court granted Key probation and placed him in a program designed to provide housing, medication, treatment, and supervision to probationers with mental health issues.
On appeal, Key contends he did not knowingly and intelligently waive his right to a jury. We find no error and affirm Key's conviction.
FACTS AND PROCEDURAL BACKGROUND
1. Key swings a large wooden stick at officers
On August 18, 2018, Anthony Tamayo was working security at Union Station in downtown Los Angeles. Tamayo saw Key standing in front of a restaurant in the station. A civilian told Tamayo that Key was "showing his testicles." Key was wearing nothing but a rope and sandals. Tamayo approached Key and asked him "if he could go to the restroom and fix hi[m]self."
Key did not respond at first. He had a long wooden pole, a big stick reaching from the ceiling to the floor. It was thick and—as Key himself later described it—"very heavy." After Tamayo asked Key twice if he could "go do that in the restroom," Key said, "Fuck off, bitch." Tamayo used his radio to call his supervisor. Tamayo's supervisor told him to keep an eye on Key; they were calling Los Angeles Police Department officers.
Key grabbed the stick and swung it at Tamayo. Tamayo stepped back. Key began to walk toward one of the metro lines and Tamayo followed about eight feet behind him. Seeing passengers headed for the metro, Tamayo asked Key, "Can you put the stick down?" Key swung the stick at Tamayo a second time from three or four feet away as if "he really wanted to hit [him]." Tamayo had to "grab" a woman walking by and push her out of the way so Key wouldn't hit her. The stick came within inches of Tamayo's head. Had he not "dodge[d]" the stick and stepped back, he would have been hit.
Uniformed LAPD officers Robert Gallegos and Isaac Moreno arrived in a golf cart. Gallegos saw an eight-foot wooden stick "up against the wall," right next to Key. Gallegos tried to get Key to walk away from the stick; Key yelled "fuck you" several times and "refused to comply [with Gallegos's] commands."
Key swung the stick "in a downward angle" toward Gallegos, who was one to four feet away. As he swung the stick, Key said, "Fuck you. I'll kill you." Gallegos saw the stick coming at him and started backing up. Gallegos believed the stick would have hit him had he not backed up.
Key also swung the stick "downward" toward Moreno. The stick came within two or three feet of Moreno. Moreno heard the words "kill you." Moreno stepped back and got on his radio to call for backup.
The officers made "countless" requests that Key put down the stick and put his hands on top of his head. Key began to walk down the tunnel, still holding the eight-foot stick. Officers eventually tased Key and he dropped the stick. 2. The charges , pretrials , jury waiver , and sentence
The People charged Key with three counts of assault with a deadly weapon—the eight-foot stick—on Tamayo, Gallegos, and Moreno. The court appointed Deputy Public Defender David Moore to represent Key. At the conclusion of a preliminary hearing on September 4, 2018, the court held Key to answer on all three counts.
Key was arraigned on the information on September 18, 2018, before Judge Mark S. Arnold. The parties appeared for pretrial conferences on November 6 and 8. November 8 was the final readiness conference—the so-called "51 of 60" date, meaning the trial would start seven days later. Key's counsel told the court, "So, Your Honor, Mr. Key wants to have a court trial as opposed to a jury trial." The court said, "Okay." The prosecutor said the People would waive jury if Judge Arnold were the trial judge.
The court addressed Key: "You have a right to have a jury decide whether you're guilty or not." The court asked Key, "Do you understand what a jury is?" Key answered, "Yes." The court continued: "A jury is when 12 people come in from the community and they listen to the evidence and then they decide whether the standard of proof has been met. The standard of proof is proof beyond a reasonable doubt. A court trial is where there is no jury, it's just a judge, me, decides. I would not be able to find you guilty unless I found that the evidence proved guilt beyond a reasonable doubt."
The court asked Key, "Do you understand the difference between a court trial and a jury trial?" Key answered, "Yes." The court told Key, "And your lawyer, Mr. Moore, says you want to waive your right to a jury trial and agree that I could hear your case." Key responded, "Yes." The court said, "All right. Do you waive your right to a jury trial?" Key responded, "I do." Defense counsel joined in the waiver as did the prosecutor.
Key and the lawyers returned to Judge Arnold's court for the trial on November 14, 2018. The prosecutor said the People were ready to proceed but she believed Key was "an appropriate candidate" for the Office of Diversion and Reentry (O.D.R.) court because of his homelessness and "some mental illness." The prosecutor reiterated she had offered to dismiss two of the counts if Key wished to plead to one count and go into the O.D.R. program, but, she added, "according to Mr. Moore, that has been rejected." The court asked if Key and Moore wanted to talk further. Key said, "No," and Moore said, "We're ready." The court asked Key, "Not interested in O.D.R.?" Key responded, "Not interested, Sir."
The prosecutor called Tamayo, Gallegos, and Moreno to testify. Key testified on his own behalf. Key said he was "adjusting [his] bottoms" when a security guard approached. The guard told Key "that my testicles were showing and that I needed to leave because I had a stick with me." Key testified he had several bags, a box of donuts, and his "staff" with him. Key described the stick as a "bo staff," "a training tool or relaxation tool" "to study martial arts." Key stated he'd been wearing "red fabric material" "like the length of a scarf" and "a green top."
Key said he began to walk away but stopped "to readjust my bottoms." Key denied having swung the stick at any of the officers. He also denied having yelled profanity at them.
At the conclusion of the evidence the court found Key guilty of assault with a deadly weapon on Tamayo and Moreno and not guilty of assault on Gallegos. The court noted Key had taken only one swing at each victim and no one had been hit or injured. The court said it was considering the low term of two years in state prison, as Key would not accept O.D.R. The prosecutor stated, "I would just like to see him in O.D.R. I still believe that he's the perfect candidate." Moore spoke with Key and then told the court, "My client is interested in the program."
On February 6, 2019, an O.D.R. court judge placed Key on probation for three years under the terms of the O.D.R. program. The judge explained Key would be provided housing and a case manager who "will develop a program unique for you." Key would be required to attend group and individual sessions, keep "psych appointments," and take any prescribed medications. The court told Key, "I want you to get super involved." The court asked Key, "Do you understand and accept your O.D.R. terms and conditions?" Key answered, "Yes." Addressing Key and the other probationers, the court said, "Gentlemen, welcome to O.D.R." The court added, "Gentlemen, hope you get off to a great start. If you have any problems at all, do not walk away from your program. Talk to your case manager. Talk to probation. Or when you come see me in court, let me know if there is an issue and we will try to work it out."
DISCUSSION
Key contends his jury trial waiver was "constitutionally invalid," arguing "[t]he jury waiver colloquy on record does not demonstrate that [he] was aware of the nature of his right to a jury trial or the consequences of its waiver." We disagree.
Under the federal Constitution and our state Constitution, a defendant in a criminal prosecution has a right to a jury trial. (People v. Sivongxxay (2017) 3 Cal.5th 151, 166 (Sivongxxay); U.S. Const., 6th Amend.; Cal. Const., art. I, § 16.) However, in a criminal case, "as enshrined in our state Constitution," the parties may waive jury by consent expressed in open court by the defendant and his counsel. (People v. Daniels (2017) 3 Cal.5th 961, 990 (Daniels); Sivongxxay, at p. 166; People v. Cunningham (2015) 61 Cal.4th 609, 636; Cal. Const., art. I, § 16.) The court may not accept a defendant's jury waiver unless it is knowing and intelligent—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—the product of a free and deliberate choice rather than intimidation, coercion, or deception. (People v. Collins (2001) 26 Cal.4th 297, 305.) Whether an accused has made an intelligent, competent, self-protecting waiver of jury trial depends on the unique circumstances of each case. (Adams v. U.S. (1942) 317 U.S. 269, 278 (Adams); Sivongxxay, at p. 166.)
Our Supreme Court has stated, "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." Courts "instead examine the totality of the circumstances." (Sivongxxay, supra, 3 Cal.5th at p. 167; Adams, supra, 317 U.S. at p. 278; People v. Smith (2003) 110 Cal.App.4th 492, 500 (Smith) [" 'In determining whether there has been an effective waiver of a jury trial in favor of a court trial, the cases do not require a specific formula or extensive questioning beyond assuring that the waiver is personal, voluntary, and intelligent.' "].) The Sivongxxay Court reiterated there is no "rigid formula or particular form of words that a trial court must use in taking a jury waiver." But, the Court added, "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." (Sivongxxay, at p. 169.)
The Court "offer[ed] some general guidelines," recommending 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." The Court also suggested the trial court ask the defendant if he has had an adequate opportunity to discuss the decision with his lawyer and if he has any questions. (Sivongxxay, supra, 3 Cal.5th at pp. 169-170.) The Court "emphasize[d] that [its] guidance [was] not intended to limit trial courts to a narrow or rigid colloquy." The Court reiterated that "a trial court's adaptation of or departure from the recommended colloquy in an individual case will not necessarily render an ensuing jury waiver invalid." (Id. at p. 170.)
Key complains the trial court gave him only two of these four recommended advisements, failing to tell him he could participate in jury selection and the jury's verdict must be unanimous. But the Supreme Court in Sivongxxay stated, "[W]e have never insisted that a jury waiver colloquy invariably must discuss . . . the unanimity requirement . . . for an ensuing waiver to be knowing and intelligent." (Sivongxxay, supra, 3 Cal.5th at p. 168. See also People v. Doyle (2016) 19 Cal.App.5th 946, 952-954 [trial court's failure to advise defendant he was entitled to unanimous verdict from 12 jurors did not invalidate waiver; court advised defendant burden of proof would be the same; defendant was represented by counsel and entered waiver without hesitation]; People v. Tijerina (1969) 1 Cal.3d 41, 45-46 [finding jury waiver knowing and intelligent even though defendant was not advised of unanimity requirement]; U.S. ex rel. Williams v. DeRobertis (7th Cir. 1983) 715 F.2d 1174, 1185-1186 (DeRobertis) [finding knowing and intelligent jury waiver notwithstanding trial court's failure to advise defendant of juror vote necessary to convict].) Nor has our Supreme Court ever required an advisement that the defendant has a right to participate in selecting the jury. (People v. Weaver (2012) 53 Cal.4th 1056, 1072-1073; cf. DeRobertis, at pp. 1179-1180 [jury waiver valid even though court did not tell defendant he could participate in jury selection].)
Key argues "there is no evidence that [he] discussed with counsel at length or that there was even any mention by counsel of what the jury trial right consisted of." But by the time Moore told Judge Arnold that his client wanted a court trial, he had represented Key for some time. The record does not reflect how soon after Key's August 18, 2018 arrest Moore was appointed, but he was Key's lawyer by the time of the preliminary hearing two and a half weeks later on September 4, 2018. Moore appeared with Key at his arraignment before Judge Arnold on September 18, 2018. By the time Moore told the court on November 8 that Key wanted to waive jury, Moore had represented Key for more than two months.
Generally, we "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (People v. Maury (2003) 30 Cal.4th 342, 389.) This presumption extends to an inference that, before telling the court his client wanted to waive jury, Moore discussed the matter with his client. It is not difficult to understand why Key and Moore preferred a court trial. Jurors—whose experience with people behaving strangely may be limited—might be alarmed by testimony about a mostly naked man in a busy train station wielding a very large, heavy stick. An experienced judge—who has seen a wide range of behaviors over the years—may well be more willing and able to base a verdict on the evidence rather than emotion or fear. Indeed, Judge Arnold made sure Key had a sufficient opportunity before trial to discuss the prosecution's offer of O.D.R. with his lawyer, and the court granted Key probation through the O.D.R. program after rendering its verdict.
Nor does the record support Key's assertion that the trial court "took scant initiative to ensure that [he] was fully aware of the nature of the right being abandoned or the consequences of the decision to abandon it." Again, it was Key—through his attorney—who proposed a court trial. The court advised Key that he had a right to be tried by a jury drawn from members of the community and that, if he waived jury trial, the court alone would determine his guilt. "This is the essence of the jury trial right." (Daniels, supra, 3 Cal.5th at p. 1019 (conc. & dis. opn. of Corrigan, J., citing Williams v. Florida (1970) 399 U.S. 78, 100); DeRobertis, supra, 715 F.2d at pp. 1175-1176, 1180 [upholding jury trial waiver as knowing and intelligent where court told defendant only that he had right to jury trial in which "12 people of this County will be put in a box," hear the evidence, and "determine your innocence or guilt"].) Key confirmed he knew what a jury is as well as the difference between a jury trial and a court trial.
The two cases on which Key relies are distinguishable. People v. Blancett (2017) 15 Cal.App.5th 1200 was a mentally disordered offender (MDO) proceeding. Immediately after counsel was appointed for defendant Blancett, counsel asked for a court trial. The judge asked Blancett if it was "okay with [him]" to "hav[e] a judge decide your case and not a jury." Blancett responded, "Yes, your honor." In reversing the order finding Blancett to be an MDO, our colleagues in Division Six stated, "That was the only colloquy between the court and Blancett regarding advisement of his right to a jury trial and the court's acceptance of a knowing and intelligent waiver." (Id. at p. 1203.) Here, by contrast, the court explained a jury is 12 people from the community who would decide if the prosecution had proved Key's guilt beyond a reasonable doubt. Unlike Blancett's lawyer—who had been appointed only moments before, so could not have discussed the matter with his client—Key's counsel here had represented him for many weeks.
In People v. Jones (2018) 26 Cal.App.5th 420 (Jones) the prosecutor simply asked the defendants—who were charged with murder and child abuse—if they understood their right to a jury trial and if they agreed to waive it. The prosecutor did not tell the defendants that a jury was made up of 12 people from the community or that the burden of proof was beyond a reasonable doubt. (Id. at p. 428.) Again, here, the judge did tell Key both of those things.
We respectfully disagree with our colleagues in Division Seven to the extent their Jones opinion suggests the trial court must tell the defendant that a jury "is comprised of individuals from the community instead of, for example, a collection of judges." (Jones, supra, 26 Cal.App.5th at p. 423.)
Finally, the record does not support Key's contention that he "may not have understood the nature and consequences of that which he was agreeing to" because of his "mental disturbance and potential mental incompetency." It certainly seems Key had some mental health issues. Mentally healthy people don't walk naked through a train station carrying an eight-foot pole. But Key never pleaded not guilty by reason of insanity under Penal Code section 1026. Nor did his attorney or the court ever declare a doubt under section 1368 as to his ability to understand the charges, cooperate with his lawyer, and proceed to trial.
As the Attorney General notes, Key plainly understood the proceedings. For example, at the outset of the preliminary hearing, Key's attorney told the court the defense still was waiting for the prosecution to produce the video of the events at Union Station. Key then said, "Since we don't have it, I would like to have an explanation, perhaps, from the defense attorney why that video isn't here. It has been a sufficient amount of time. And since we don't have it, probably move to dismiss the case based on lack of evidence."
The court asked the prosecutor why the video wasn't there. The prosecutor said she would get it, and the court then explained to Key that it could continue the preliminary hearing. Key responded, "Well, I would like to move past preliminary hearing, because at this point we should be in the evidence stage. Like I've already said, we've already requested . . . ." Key, the court, and the prosecutor continued to discuss the discovery issue at some length. Key asked the judge, "What are my options?" The court told Key he could proceed that day or waive time to continue the preliminary hearing. Key complained he'd be "forced to sit in jail" while the defense waited for the video. Then he asked the judge about a bail review. Key asked that "someone [be] sanctioned or something" because of the delay. Eventually Key declined to enter a time waiver and the preliminary hearing proceeded without the video.
At trial, Key testified cogently on both direct and cross-examination.
People v. Smith, supra, 110 Cal.App.4th 492 is instructive. Smith was charged with murdering his wife using a ligature. He waived jury and a court trial commenced. The next day Smith's counsel told the court his client wasn't "mak[ing] any sense." Later the next day, after defense counsel continued to voice concerns, the court halted proceedings and eventually declared a doubt as to Smith's competence. (Id. at pp. 497-498.) More than five months later, Smith was restored to competence and the trial resumed. Defense counsel told the court it was Smith's " 'desire that we continue on with a court trial.' " (Id. at p. 499.)
On appeal, Smith argued "his waiver of jury trial was not competently made." (Smith, supra, 110 Cal.App.4th at p. 497.) The court of appeal affirmed Smith's conviction. The court stated, "The prosecution may have the burden of establishing a valid waiver of a fundamental right, but a defendant is presumed competent 'unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent.' " (Id. at p. 502.) The court continued, "There was evidence [Smith] suffered from a mental illness and was on psychotropic medication, but the mere presence of a mental illness does not mean [he] was unable to understand the proceedings or assist in his own defense." (Ibid.) The court noted, "The trial court, when taking the waiver from [Smith], explained the differences between the two types of trials, and asked [Smith] whether he understood the differences and whether he wanted nonetheless to waive his right to a jury trial. [Smith] answered in the affirmative, and there is nothing in the record to suggest [he] did not understand the questions asked or the explanation given." (Ibid.) The same is true here.
Our Supreme Court has stated the rule: " '[T]he United States Supreme Court has never held that a defendant, when waiving the right to a jury, constitutionally is entitled to be canvassed by the trial court, let alone to require a specifically formulated canvass' ([State v.] Rizzo [(2011)] 31 A.3d [1094,] 1116; see also U.S. v. Cochran (9th Cir. 1985) 770 F.2d 850, 851 [ ]), and we have never insisted that a jury waiver colloquy invariably must discuss juror impartiality, the unanimity requirement, or both for an ensuing waiver to be knowing and intelligent." (Sivongxxay, supra, 3 Cal.5th at p. 168.) Having considered the totality of the circumstances here, we conclude Key's jury waiver was knowing, intelligent, and voluntary. The trial court did not violate his constitutional rights. Key "understood that the choice confronting him was, on the one hand, to be judged by a group of people from the community, and on the other hand, to have his guilt or innocence determined by a judge." (DeRobertis, supra, 715 F.2d at p. 1180.)
DISPOSITION
We affirm Dominique Key's conviction.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J. We concur:
EDMON, P. J.
DHANIDINA, J.