Filed 5/25/22 P. v. Peterson S. CA2/6

(see dissenting opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

PETERSON S.,

 Defendant and Appellant.

2d Crim. No. B313492

(Super. Ct. No. 21PT-00309)

(San Luis Obispo County)

Peterson S. appeals from an order recommitting him for 

treatment to the Department of State Hospitals as a mentally 

disordered offender (MDO). (Pen. Code, § 2962 et seq.)1 He was 

diagnosed with schizophrenia. His commitment offense was 

felony assault with a deadly weapon or instrument other than a 

firearm. (§ 245, subd. (a)(1).) 

Appellant’s sole contention is that his waiver of a jury trial 

was invalid because the trial court failed to properly advise him 

1 All statutory references are to the Penal Code.
2

of his right to a jury trial. Considering the totality of the 

circumstances, we conclude that appellant knowingly and 

intelligently waived his right to a jury trial. Accordingly, we 

affirm.

Proceedings in Trial Court

The trial court’s jury trial advisement and appellant’s 

waiver were as follows:

“THE COURT: [Counsel], have you had an 

opportunity to speak with [appellant]?

“[Counsel]: I have, Your Honor. 

“THE COURT: How would he like to have the matter set?

“[Counsel]: I’ve gone over my client’s rights in this regard, 

he would ask that this matter be set for a court trial . . . .

“THE COURT: All right. . . . I know you [appellant] have 

discussed this with your attorney. I want to make sure that you 

know that on this petition you have the right to a jury trial where 

12 people from the community . . . come in, they would hear the 

evidence. The District Attorney’s office would have to present 

evidence and prove beyond a reasonable doubt each of the 

elements of the petition. But as you’ve discussed with your 

attorney, you also can elect and choose to waive your right to a 

jury and have a [c]ourt hear the matter. That would be a judge 

trial. And your attorney has indicated that you want to waive 

your right to a jury and have a judge hear your trial. Is that 

correct, sir?

“[Appellant]: Yeah. 

“THE COURT: All right. Then we will find a waiver of 

jury and we will set the matter for a court trial.” He maintains 

that the advisement was inadequate because “[t]he court did not 

(i) explain to appellant that through counsel he may participate 
3

in jury selection, (ii) explain that all jury members must 

unanimously agree upon a verdict, (iii) explain that if appellant 

waived the right to a jury trial the judge alone would decide the 

issues, (iv) ask if appellant had consulted with his attorney, (v) 

ask appellant whether counsel had explained the differences 

between a jury and a bench trial, and (vi) ask whether appellant 

understood the right he was waiving.” 

Appellant argues, “While the record does include counsel’s 

statement that he discussed the issue of a jury trial with 

appellant, the record does not affirmatively show (because the 

court failed to inquire) that they discussed the ‘basic mechanics’ 

of a jury trial, or the ‘fundamental differences’ between a court 

trial and a jury trial before [appellant] made his jury waiver. 

[Citations.] The court also did not ask appellant if he felt that 

the conversation was sufficient and whether he understood 

counsel’s advice. Thus, no inference can be drawn from counsel’s 

representation to the court.” 

The Sivongxxay Guidelines

Appellant’s claim of an inadequate jury trial advisement is 

based on People v. Sivongxxay, (2017) 3 Cal.5th 151 (Sivongxxay). 

There, our Supreme Court “offer[ed] 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.” (Id. at p. 169.) The court “recommend[ed] 

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 
4

the right to a jury trial, a judge alone will decide his or her guilt 

or innocence.” (Ibid.) The Supreme Court “also recommend[ed] 

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 trial judge may do so in any number of 

ways—among them, by asking whether the defendant had an 

adequate opportunity to discuss the decision with his or her 

attorney, by asking whether counsel explained to the defendant 

the fundamental differences between a jury trial and a bench 

trial, or by asking the defendant directly if he or she understands 

or has any questions about the right being waived.” (Id. at pp. 

169-170.)

The Sivongxxay Guidelines Are Not Mandatory

A trial court’s failure to follow the Sivongxxay guidelines 

does not necessarily result in the absence of a knowing and 

intelligent waiver of a defendant’s jury trial right. The Supreme 

Court stated: “[W]e emphasize that our guidance is not intended 

to limit trial courts to a narrow or rigid colloquy.” (Sivongxxay, 

supra, 3 Cal.5th at p. 170.) “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.” (Id. at p. 167.) “[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. . . . 

Reviewing courts must continue to consider all relevant 

circumstances in determining whether a jury trial waiver was 

knowing, intelligent, and voluntary.” (Id. at p. 170.) 

“[U]ltimately, a ‘“defendant’s rights are not protected only by 

adhering to a predetermined ritualistic form of making the 
5

record. Matters of reality, and not mere ritual, should be 

controlling.”’” (Ibid.) 

In Sivongxxay the defendant was “a Laotian refugee with 

no formal education and limited command of the English 

language . . . .” (Sivongxxay, supra, 3 Cal.5th at p. 166.) “[H]e 

was represented by counsel and assisted by a translator 

throughout the trial.” (Id. at p. 167.) After a court trial, he was 

convicted of first degree murder. The trial court found true a 

special circumstance allegation and imposed the death penalty. 

The Supreme Court upheld the validity of the defendant’s jury 

waiver even though “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.” (Id. at pp. 166-167.) “[T]he trial court advised 

defendant that he had a right to a jury trial, that a jury consists 

of 12 people from the community, that he would have the right to 

participate in the selection of the jury, and that waiver of the 

right to a jury would mean the judge alone would determine his 

guilt or innocence and any resulting punishment. After these 

advisements, defendant answered ‘Yes’ when asked whether he 

wished to ‘give up [his] right to a jury trial and agree that this 

Court, alone, will make those decisions.’”2 (Id. at p. 167.) Despite 

2 The verbatim advisement and waiver were as follows:

“‘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 
6

the noncompliance with the Sivongxxay guidelines, the Supreme 

Court concluded, “Viewed holistically, the circumstances 

surrounding defendant’s jury waiver demonstrate that it was 

knowing and intelligent.” (Id. at p. 168.)

Appellant Knowingly and Intelligently

Waived His Right to a Jury Trial 

Considering the totality of the circumstances, we conclude 

appellant knowingly and intelligently waived his right to a jury 

trial. “The defense initiated the request for a court trial.” 

(Sivongxxay, supra, 3 Cal.5th at p. 167.) Counsel said, “I’ve gone 

over my client’s rights in this regard, he would ask that this 

matter be set for a court trial . . . .” It is reasonable to interpret 

counsel’s statement as meaning, “I’ve discussed with my client 

his constitutional right to a jury trial, and he has decided to 

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, Mr. Mounsaveng?

“‘THE DEFENDANT MOUNSAVENG: Yes.

“‘THE COURT: Mr. Sivongxxay?

 “‘THE DEFENDANT SIVONGXXAY: Yes.’” (Sivongxxay, 

supra, 3 Cal.5th at pp. 165-166.)
7

waive jury and have the matter tried by the court.” The trial 

court so interpreted counsel’s statement. The court informed 

appellant that he had a “right to a jury trial where 12 people 

from the community . . . would hear the evidence. . . . But as 

you’ve discussed with your attorney, you also can elect and 

choose to waive your right to a jury and have a Court hear the 

matter. That would be a judge trial.” The court asked, “[Y]our 

attorney has indicated that you want to waive your right to a jury 

and have a judge hear your trial. Is that correct, sir?” Appellant 

answered in the affirmative. “The record reveals no hesitation by 

[appellant] in entering the waiver, nor uncertainty or confusion 

about its scope or consequences . . . .” (Sivongxxay, supra, 3 

Cal.5th at p. 188.) 

We reject appellant’s claim that, “[a]s literally understood, 

the court was asking appellant to confirm his counsel’s statement 

[that appellant wanted to waive his right to a jury trial], not 

[asking him] to personally waive [jury] trial . . . .” Any 

reasonable person in appellant’s position would have understood 

that he was personally waiving his right to a jury trial. The trial 

court was not, as appellant maintains, “‘merely a passive receiver 

of an attempted waiver.’” 

In contrast to the waiver here, in Sivongxxay there was no 

evidence “that defendant had discussed the jury waiver with his 

counsel.” (Sivongxxay, supra, 3 Cal.5th at p. 167.) It is arguable 

that, in view of counsel’s representation that he had discussed 

the jury waiver with appellant, evidence of an intelligent and 

knowing waiver is stronger here than in Sivongxxay.

Counsel’s presence and participation in the jury waiver is 

of crucial importance. “Counsel is presumed competent and 

informed as to applicable constitutional and statutory law. . . . 
8

Counsel . . . can be expected, where necessary or advisable, to 

consult with the client about jury trial concerns. [Citation.]” 

(People v. Barrett (2012) 54 Cal.4th 1081, 1105; see also 

Conservatorship of John L. (2010) 48 Cal.4th 131, 151 

[“Like all lawyers, the court-appointed attorney is obligated to 

keep her client fully informed about the proceedings at hand, 

[and] to advise the client of his rights”]; People v. Daniels (2017) 3 

Cal.5th 961, 996 (Daniels) (lead opn. of Cuéllar, J.) [“Counsel 

plays a crucial part in transmitting information to the client 

[about waiver of the right to a jury trial]. Time and time again, 

our precedent has recognized as much, incorporating within the 

totality of relevant circumstances not only the fact of 

representation by counsel, but also record references to 

discussions between counsel and defendant”]; Id. at p. 999

[“Courts generally rely on counsel to transmit to defendants 

critical information about whether to waive the jury trial right 

and the consequences of waiving it”]; People v. Diaz (1992) 3 

Cal.4th 495, 571 [jury waiver valid because, among other factors,

“defendant acknowledged that he had thoroughly discussed the 

jury waiver with his attorney”].) 

“Although the presence of counsel does not by itself mean 

‘that the defendant's interests and rights are protected . . . the 

fact of counsel being present and having advised the defendant is 

a factor to be considered in determining the question of the need 

for or sufficiency of any admonition given by the court. 

[Citations.]’ . . . Indeed, it would be to blink at the reality 

disclosed by this record to conclude other than that [appellant’s] 

decision to have his fate determined by [the trial court], rather 

than by a jury, was a tactical decision entered into by [appellant] 

after consultation with and advice from experienced and capable 
9

defense counsel.”3 (State v. Cobb (1999) 251 Conn. 285, 373; see 

also People v. Doyle (2016) 19 Cal.App.5th 946, 953 [waiver of 

jury trial valid because “defendant’s counsel advised the trial 

court she had discussed defendant’s waiver of a jury trial with 

him on two occasions” and “[t]here is nothing in the record to 

support that defendant was confused as to the right to a jury trial 

or that he did not knowingly waive that right”]; People v. Acosta

(1971) 18 Cal.App.3d 895, 902 [“We are not aware of any rule of 

law that entitles a defendant who is represented by counsel and 

who has discussed waiver of a jury trial with his counsel, as here, 

to have the court advise him of the merits or the disadvantages of 

a trial by jury, as against a court trial”].)

Appellant’s Schizophrenia

Appellant asserts that, in determining whether he made a 

knowing and intelligent waiver of his right to a jury trial, we 

should take into account his “history of mental illness.” But this 

factor does not detract from our conclusion that appellant’s jury 

waiver was knowing and intelligent. “A schizophrenic condition 

does not render a defendant incapable of effectively waiving his 

rights.” (People v. Watson (1977) 75 Cal.App.3d 384, 396-397 

[despite evidence that defendant “had an I.Q. of 65 [and] 

exhibited signs of chronic organic brain damage and 

schizophrenia,” the “‘totality of circumstances’” supported finding 

that he had made a knowing and intelligent waiver of his 

rights].) The California Supreme Court found that a 13-year-old 

minor had knowingly and intelligently waived his Miranda rights 

(Miranda v. Arizona (1966) 384 U.S. 436) despite his “young age 

3 We take judicial notice that trial counsel was admitted to 

the State Bar of California in 2010. 
10

and low intelligence” and his diagnosis as a “paranoid 

schizophrenic.” (People v. Lewis (2001) 26 Cal.4th 334, 384.) 

No expert testimony was presented on whether appellant’s 

mental illness impaired his ability to knowingly and intelligently 

waive his right to a jury trial. In the absence of such expert 

testimony, we cannot infer that his ability was impaired. “[A]n 

inference [cannot] be based on mere possibility or flow from 

suspicion, imagination, speculation, supposition, surmise, 

conjecture or guesswork.” (Kidron v. Movie Acquisition Corp.

(1995) 40 Cal.App.4th 1571, 1581.) “It must logically flow from 

other facts established in the action.” (People v. Austin (1994) 23 

Cal.App.4th 1596, 1604, disapproved on another ground in People

v. Palmer (2001) 24 Cal.4th 856, 861, 867.) 

People v. Blancett Is Distinguishable

In People v. Blancett (2017) 15 Cal.App.5th 1200 (Blancett),

we considered whether a prisoner had validly waived his right to 

a jury trial in an MDO proceeding. We noted that in Sivongxxay, 

supra, 3 Cal.5th at p. 169, our Supreme Court had “emphasized 

‘the value of a robust oral colloquy’ in eliciting a knowing, 

intelligent, and voluntary waiver of a jury trial.” (Blancett, 

supra, at p. 1205.) In Blancett the colloquy between the MDO 

defendant and the trial court was as follows:

“‘[Counsel]: Yes. We’d like to set it for court trial.

“‘The Court: All right. So, Mr. B., [counsel] says that you 

are okay with having a judge decide your case and not a jury?

“‘[Blancett]: Yes, your honor.

“‘The Court: That’s okay with you?

“‘[Blancett]: Yes, your honor.

“‘The Court: All right.’” (Blancett, supra, at p. 1203.)
11

We concluded that the MDO defendant in Blancett “did not 

waive his right to a jury trial with full awareness of the nature of 

the right being abandoned and the consequences of the decision 

to abandon it.” (Blancett, supra, 15 Cal.App.5th at p. 1206.) We 

explained: “The trial court did not inform Blancett that he had a 

right to a jury trial, nor did the court explain the significant 

attributes or mechanics of a jury trial. [Citation.] Neither did 

the court inquire whether Blancett had sufficient opportunity to 

discuss the decision with his attorney, whether his attorney 

explained the differences between a bench trial and a jury trial, 

or whether Blancett had any questions about the waiver. 

[Citation.] In a barebones colloquy, the court asked only if 

Blancett was ‘okay’ with a court trial instead of a jury trial. 

[Citation.] . . . Indeed, the court appointed counsel moments 

before Blancett entered his waiver and there is no record of 

discussion between Blancett and his attorney prior to the waiver. 

[¶] Moreover, this was Blancett’s initial MDO commitment and 

the record does not suggest that Blancett was familiar with MDO 

proceedings or that he was aware that he was entitled to a jury 

trial.” (Ibid.) “In view of the trial court’s stark colloquy, the lack 

of evidence that Blancett discussed his jury trial right and waiver 

with counsel, Blancett’s inexperience with the criminal justice 

system, and Blancett’s lack of familiarity with MDO proceedings, 

we conclude that his waiver was not knowing and intelligent.” 

(Id. at pp. 1206-1207.) 

The present case is distinguishable from Blancett. Unlike 

the trial court in Blancett, here the trial court expressly advised 

appellant of his right to a jury trial. Appellant expressly waived 

that right. In addition, appellant concedes that “the record does 

include counsel’s statement that he discussed the issue of a jury 
12

trial with appellant.” (See People v. Blackburn (2015) 61 Cal.4th 

1113, 1124 [“counsel is presumed to know the defendant’s rights 

and is obligated to advise the defendant accordingly”].) Finally, it 

is reasonable to infer that, unlike Blancett, appellant was 

familiar with MDO proceedings. Appellant was being 

recommitted as an MDO.4 Blancett, in contrast, was being 

initially committed.

People v. Jones Is Also Distinguishable

In People v. Jones (2018) 26 Cal.App.5th 420 (Jones), the 

defendant appealed after her conviction of second degree murder 

following a court trial. The waiver of her right to a jury trial was 

as follows:

“‘[Prosecutor]: Ms. Jones, your attorney[] ha[s] indicated 

that you wish to waive jury and have this case decided by Judge 

Sahagun sitting alone. In order to do that, you . . . have to waive 

your right to a jury trial. Ms. Jones, do you understand your 

right to a jury trial?

“‘Defendant Jones: Yes, sir.

“‘[Prosecutor]: Do you agree to waive that right and have 

Judge Sahagun, sitting alone, decide the case?

4 Appellant acknowledges, “This was a recommitment 

hearing . . . .” “[A]n MDO is committed for a one-year period and 

thereafter has the right to be released unless the People prove 

beyond a reasonable doubt that he or she should be recommitted 

for another year.” (People v. McKee (2010) 47 Cal.4th 1172, 

1202.) The record does not indicate whether, in the previous 

MDO commitment proceedings, appellant invoked his right to a 

court or jury trial. (§ 2966, subd. (b).)
13

“‘Defendant Jones: Yes, sir.’” (Jones, supra, at p. 428.) 

The appellate court concluded that Jones’s “waiver of her 

right to a jury trial was not knowing, intelligent, and voluntary” 

because “[t]he trial court’s two-question inquiry of Jones, as to 

whether she ‘underst[ood] [her] right to a jury trial’ and whether 

she agreed to waive that right and have the trial judge ‘sitting 

alone, decide the case’ does not affirmatively show that Jones 

understood the nature of the right to a jury trial she was 

relinquishing.” (Jones, supra, 26 Cal.App.5th at p. 423.) 

Moreover, “the record does not show whether Jones’s attorney 

ever discussed with her the nature of a jury trial, including for 

example, that the jury would be comprised of 12 of her peers from 

the community. Further, the trial court did not specifically 

advise Jones that she had a right to a jury trial, instead only 

asking her, ‘[D]o you understand your right to a jury trial?’” (Id.

at p. 435.) 

The appellate court continued: “Because the trial court did 

not advise Jones as to the specific rights she would be giving up 

or inquire if her attorney explained those rights to her, her bare 

acknowledgment that she understood her right to a jury trial was 

inadequate.” (Jones, supra, 26 Cal.App.5th at p. 436.) “Jones 

had no experience with the criminal justice system. Neither the 

information nor the probation report reveals a prior criminal 

charge.” (Id. at p. 437.)

The present case is distinguishable from Jones. Here, the 

trial court specifically advised appellant that he had a right to a 

jury trial before “12 people from the community.” In contrast to 

Jones, appellant’s counsel said he had discussed the issue of a 

jury trial with his client, and appellant did not contradict counsel 

on this point. Finally, while “Jones had no experience with the 
14

criminal justice system,” appellant had been previously convicted 

of felony assault with a deadly weapon or instrument (§ 245, 

subd. (a)(1)) and had been previously committed as an MDO.5 

(Jones, supra, 26 Cal.App.5th at p. 437.)

Conclusion

Our Supreme Court’s recommendation of an extended jury 

advisement/waiver colloquy is to be applauded. (Sivongxxay, 

supra, 3 Cal.5th at pp. 169-170.) But the recommendation is not 

a straitjacket to be used in the pursuit of perfect justice. (See 

Fleming, The Price of Perfect Justice (1974).) “‘“Matters of 

reality . . . should be controlling.”’” (Sivongxxay, supra, 3 Cal.5th 

at p. 170.) Matters of reality here confirm that appellant 

knowingly and intelligently waived his right to a jury trial. (See 

United States v. Ruiz (2002) 536 U.S. 622, 629 [“the law 

ordinarily considers a waiver knowing, intelligent, and 

sufficiently aware if the defendant fully understands the nature 

of the right and how it would likely apply in general in the 

circumstances—even though the defendant may not know 

the specific detailed consequences of invoking it”].)

“[I]n various contexts in which [our Supreme Court has] 

been called upon to ascertain whether a waiver of constitutional 

rights was knowing and intelligent, [the court has] not focused 

myopically on the waiver colloquy in isolation, but instead [has] 

conducted a more comprehensive assessment of the totality of the 

circumstances. [Citations.] . . . [H]ere the relevant circumstances 

include not only the colloquy, but also . . . the fact that [appellant] 

was represented by counsel.” (Sivongxxay, supra, 3 Cal.5th at p. 

5 The record does not indicate whether appellant pleaded 

guilty to the felony offense or was tried by the court or a jury. 
15

173, fn. 8.) Additional relevant circumstances are that counsel 

discussed the jury waiver with appellant, that appellant had been 

previously convicted of a felony offense, and that appellant 

should have been familiar with the MDO commitment procedure 

because this was a recommitment, not an initial commitment. 

We “uphold the validity of [the] jury waiver” because “‘“the record 

affirmatively shows that [the waiver] is [knowing] and intelligent 

under the totality of the circumstances.”’” (Daniels, supra, 3 

Cal.5th at p. 991 (lead opn. of Cuéllar, J.).)

Disposition

The order recommitting appellant for treatment to the 

Department of State Hospitals as an MDO is affirmed.

NOT TO BE PUBLISHED.

YEGAN, Acting P. J.

I concur:

PERREN, J.
1

TANGEMAN, J., Dissenting:

I respectfully dissent. There has been no affirmative 

showing of a knowing, intelligent, and voluntary waiver. The 

majority acknowledges the framework established by our 

Supreme Court in People v. Sivongxxay (2017) 3 Cal.5th 151 

(Sivongxxay) but applies the pre-Sivongxxay framework to 

presume a valid waiver where none is shown. 

Our Supreme Court in Sivongxxay, supra, 3 Cal.5th at page 

169, recommended “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.” (Ibid.) 

Here, the trial court did not mention any of the benefits of a 

jury. It provided only two of the four recommended Sivongxxay

advisements—that a jury is made of “12 people from the 

community” and that the alternative to a jury trial “would be a 

judge trial.” (Sivongxxay, supra, 3 Cal.5th at p. 169; see People v. 

Jones (2018) 26 Cal.App.5th 420, 436 [that the trial court only 

provided one Sivongxxay advisement (i.e, that the judge alone 

will decide the defendant’s guilt or innocence) suggested that the 

jury trial waiver advisement was inadequate].) The court 

completely omitted the two advisements that are clearly the most 

important from appellant’s perspective—that appellant’s lawyer 

could participate in jury selection, and that, once selected, all 12 

jurors would have to unanimously agree to render a verdict 

recommitting him as an MDO. Of the four recommended 
2

advisements, these are the two that provide the greatest 

protection and give the most meaning to the constitutional jury 

trial right—yet the majority ascribes no meaning to them at all.1

The colloquy here was also deficient for other reasons. The 

Sivongxxay court did not limit its recommendations to the four 

advisements. It also “emphasize[d] the value of a robust oral 

colloquy in evincing a knowing, intelligent, and voluntary waiver 

of a jury trial.” (Sivongxxay, supra, 3 Cal.5th at p. 169.) To that 

end, the court “recommend[ed] 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 trial 

judge may do so in any number of ways—among them, by asking 

whether the defendant had an adequate opportunity to discuss 

the decision with his or her attorney, by asking whether counsel 

explained to the defendant the fundamental differences between 

a jury trial and a bench trial, or by asking the defendant directly 

if he or she understands or has any questions about the right 

being waived.” (Id. at pp. 169-170.)

Here, the court asked no such questions to ensure that 

appellant understood “what the jury trial right entails” or “the 

fundamental differences between a jury trial and a bench trial.” 

It made no inquiry about appellant’s understanding of his rights, 

or whether he had an adequate opportunity to discuss his jury 

trial right with his attorney. Instead, the record shows that the 

court’s only inquiry to appellant was when the court asked him if 

1 The majority nevertheless argues that the meager 

advisement given here was somehow “stronger” than the 

advisement given in Sivongxxay, where the trial court covered 

three, not two, of the four recommended advisements. (Maj. opn. 

ante, at p. 7.)
3

his attorney indicated that he wanted to waive his right to jury, 

to which appellant said, “[yeah].” (See People v. Jones, supra, 26 

Cal.App.5th at p. 436 [failure to inquire whether the defendant 

understood the nature of her right to a jury trial, whether she 

discussed her decision with her attorney, or whether she had any 

questions showed that her “bare acknowledgement” in response 

to two of the court’s questions was inadequate to ensure that she 

understood the nature of her rights].) These additional inquiries 

designed to ensure appellant’s understanding of his rights were 

especially important under the circumstances. Appellant was 

appearing via Zoom and was not present in the courtroom. He 

suffered from schizophrenia and was exhibiting ongoing 

symptoms including “thought disorganization.” He was refusing 

treatment, and was not taking his recommended dosage of 

medication.

The record provides zero evidence that appellant 

understood the nature of his constitutional right to a jury trial. 

Despite well-settled law to the contrary, the majority imposes on 

appellant the obligation to prove that he did not understand the 

meager advisement and waiver when it states that “[i]n the 

absence of such expert testimony [that mental illness impaired 

his ability to understand], we cannot infer that his ability was 

impaired” (maj. opn. ante, at p. 10). And so it infers that 

appellant’s ability to understand was unimpaired, while ignoring 

expert witness testimony which directly rebuts that inference.2 

2 At the court trial, a forensic psychologist testified that 

appellant suffered from schizophrenia and that his condition was 

not in remission. The psychologist testified that appellant

exhibited ongoing symptoms during an interview. Specifically, 

the psychologist testified that during the interview, she observed 
4

Without supporting evidence, it infers that appellant was capable 

of understanding his constitutional right to jury and intelligently 

waived that right (despite expert witness testimony to the 

contrary); it infers that “defendant acknowledged that he had 

thoroughly discussed the jury waiver with his attorney” (maj. 

opn. ante, at p. 8); it infers that jury waiver resulted from “a 

tactical decision entered into by [appellant] after consultation 

with and advice from experienced and capable defense counsel” 

(maj. opn. ante, at pp. 8-9); and it infers that “appellant was 

familiar with MDO proceedings” (and presumably the jury trial 

right attached thereto) (maj. opn. ante, at p. 12). It draws each of 

these inferences against appellant, thereby shifting the burden to 

appellant to prove otherwise.

The majority opinion is thus inconsistent with Sivongxxay

and its emphasis on promoting a “robust oral colloquy” when 

ensuring a party understands their jury trial rights. 

(Sivongxxay, supra, 3 Cal.5th at p. 169.) Our caselaw has upheld 

waiver of a jury trial “only when the record affirmatively 

demonstrates it was knowing and intelligent,” without placing 

the burden on a party to show his waiver was not knowing or 

intelligent. (People v. Daniels (2017) 3 Cal.5th 961, 991 (lead 

opn. of Cuéllar, J.); accord, id. at p. 1018 (conc. & dis. opn. of 

Corrigan, J.).)

appellant exhibiting “symptoms,” including “thought 

disorganization,” “long pauses before answering questions,” and 

appearing “distracted.” The psychologist “often had to repeat 

questions.”
5

This case is like People v. Blancett (2017) 15 Cal.App.5th 

1200, in which we reversed an MDO commitment order on the 

ground that Blancett’s jury trial waiver was not knowing and 

intelligent. There, “[i]n a barebones colloquy, the court asked 

only if Blancett was ‘okay’ with a court trial instead of a jury 

trial.” (Id. at p. 1206.) The “trial court did not inform Blancett 

that he had a right to a jury trial, nor did the court explain the 

significant attributes or mechanics of a jury trial.” (Ibid.) The 

trial court did not inquire whether he “had sufficient opportunity 

to discuss the decision with his attorney, whether his attorney 

explained the differences between a bench trial and a jury trial, 

or whether Blancett had any questions about the waiver.” (Ibid.)

3 

Courts are charged with ensuring that a party has full 

awareness of the significant attributes and mechanics of a jury 

trial, and the consequences of waiving that right—including that 

a party understands that they can participate in choosing jurors 

and that there must be unanimity amongst the 12 jurors so 

selected for a conviction. (Sivongxxay, supra, 3 Cal.5th at p. 166.) 

If all that is required for a valid jury waiver is representation by 

counsel, who states generally that they have “gone over [their] 

client’s rights,” and a barebones presentation of the choice 

between a “judge trial” and a trial by “12 people from the 

community,” our Supreme Court’s advisements in Sivongxxay

mean very little. Here, the record does not “affirmatively show[]” 

that appellant’s waiver was knowing, intelligent, and voluntary. 

3 As in Blancett, supra, 15 Cal.App.5th 1200, nothing in the 

record reveals that appellant had a criminal history in which he 

gained familiarity with jury trial waivers. The record reflects 

only a felony conviction and prior MDO commitment, with no 

mention of jury trial(s) or jury waiver(s).
6

(People v. Blackburn (2015) 61 Cal.4th 1113, 1136; Sivongxxay,

supra, 3 Cal.5th at p. 170.)

NOT TO BE PUBLISHED.

TANGEMAN, J.
Rita Coyne Federman, Judge

Superior Court County of San Luis Obispo

______________________________

Christian C. Buckley, under appointment by the 

Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Noah P. Hill, Supervising Deputy 

Attorney General, Nima Razfar, Deputy Attorney General, for 

Plaintiff and Respondent.