Opinion
2d Crim. No. B224999 Super. Ct. No. 2009040881
08-02-2011
THE PEOPLE, Plaintiff and Respondent, v. FREDDIE J. TAYLOR, Defendant and Appellant.
Lisa M. Spillman , under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Lauren E. Dana, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.
(Ventura County)
Freddie J. Taylor was sentenced to six years prison when, over his counsel's objection, he waived jury trial and was convicted of possession for sale of cocaine base (Health & Saf. Code § 11351.5) and sale/transportation/offering to sell a controlled substance (Health & Saf. Code, § 11352, subd. (a)). During the trial, appellant admitted two prison prior enhancements. (Pen. Code, § 667.5, subd. (b).)
Appellant appeals the judgment of conviction and sentence. We reverse and remand for retrial because the waiver of jury trial was against the advice of trial counsel and counsel did not join in the waiver. (People v. Upshaw (1974) 13 Cal.3d 29, 33-34; People v. Peace (1980) 107 Cal.App.3d 996, 107-108.)
Facts
On November 6, 2009, Oxnard Police Officer Gordon Currie stopped appellant for a faulty brake light. Appellant was nervous, sweating, and his heart was pounding. Officer Currie confirmed that appellant was on parole and arrested him for being under the influence of a controlled substance. The Camaro that appellant was driving had a baggie of 5.18 grams of cocaine base concealed in the gas cap door. When Officer Currie showed the baggie to another officer, appellant spontaneously said, "I'm going to prison for a long time."
Waving his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 ), appellant said that he was taking the cocaine to a motel to party with five or six people.
The Oxnard police conducted a parole search at appellant's house and found new plastic baggies in a pair of roller blades. Some of the baggies had been cut or torn consistent with packaging narcotics. In the master bedroom, officers found an unopened package of surveillance cameras and $1,700 in a small refrigerator.
At trial, two narcotics officers opined that the cocaine was possessed for sale or distribution.
Appellant denied the cocaine was his and denied telling the police that he bought the cocaine or was going to meet people at a motel.
Jury Waiver
Appellant argues that the jury waiver was invalid because it was against trial counsel's advice and counsel did not join in the waiver. The Attorney General agrees the judgment should be reversed.
Article I, section 16 of the California Constitution provides in relevant part: "A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and defendant's counsel." The defendant's right to waive trial by jury is not unilateral; the prosecutor and defense counsel must both concur. (People v. Upshaw, supra, 13 Cal.at pp.33-34; Cal. Criminal Law Procedure and Practice (Cont.Ed.Bar 2010) § 28.13, pp. 806-807.) "[A] defendant does not have a constitutional right to waive a jury trial over his or her attorney's objections; and a trial court may commit reversible error by accepting such an attempted waiver. [Citations.]" (4 Witkin & Epstein, Cal. Criminal Law, Criminal Trial (3rd ed. 2000) § 454, pp. 651-652.)
During jury selection, the trial court was advised that appellant wished to waive jury but was doing so against the advice of counsel. Deputy Public Defender Dino Inumerable stated: "[Appellant] just advised me of that as he came out after the break. He and I had talked about this before, a couple of days ago, weeks ago. I advised against it; I'm advising against it now. Obviously, we do feel the Court could be fair, but obviously, there are benefits to having 12 people come to a unanimous decision. This is something, as his attorney, I advised against, waiving jury."
In People v. Peace, supra, 107 Cal.App.3d 996, a similar jury waiver was taken in a robbery case. The trial court accepted the waiver over defense counsel's objection that the waiver "is against the advice of counsel." (Id., at p. 1006.) The Court of Appeal reversed on the ground that the right to trial by jury cannot be waived without the consent of counsel. (Id., at p. 1007-1008.) "[A]lthough there is a constitutional right to a jury trial, there is no correlative right to a trial without a jury. [Citations.] Accordingly, a defendant does not have a constitutional right to waive a jury trial over his counsel's objections." (Id., at p. 1007.)
The same principle applies here. Defense counsel told appellant not to waive jury trial and, in open court, said "I'm advising against it now." Counsel did not join in the waiver or impliedly waive trial by jury. (See People v. Peace supra, 107 Cal.App.3d at p. 1008; People v. Holmes (1960) 54 Cal.2d 442, 444 [trial court must obtain express statement from defendant, his/her attorney, and prosecutor that trial by jury is waived].) "The requirement that a defendant and defense counsel personally and expressly waive the right to jury trial . . . constitutes the only method by which the constitutional right to jury trial may be waived in a criminal case. [Citation.]" (People v. Vera (1997) 15 Cal.4th 269, 278;
After the trial court accepted the waiver, defense counsel asked if appellant "has any questions for me[?]" Appellant responded: "No. It's just that in my heart, in my heart, I am not comfortable being tried by - - in my heart, I feel no matter what the race is, an all-one-race jury is not - - I look at it like it's for one purpose, for a guilty plea, and it is not upon justice to me, in my heart."
Remaining Contentions
Appellant argues that one of the prison prior enhancements is time barred (see People v. Epperson (1985) 168 Cal.App.3d 856, 864-865) and the trial court erred in not staying the sentence on count 2 for sale/transportation/offering to sell a controlled substance. We need not discuss these contentions because the enhancements and sentence are but an appendage to the conviction. Where the conviction on the underlying offenses is reversed, the enhancements and sentence go with it.
The judgment is reversed and the matter is remanded for retrial at which time a proper jury waiver may be taken. If appellant's trial attorney does not consent to such a waiver, the trial court should conduct a jury trial.
NOT TO BE PUBLISHED.
YEGAN, Acting P.J.
We concur:
COFFEE, J.
PERREN, J.
Allan L. Steele, Judge
Superior Court County of Ventura
Lisa M. Spillman , under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Lauren E. Dana, Deputy Attorney General, for Plaintiff and Respondent.