Filed 3/13/23 P. v. Leyva CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

JORGE ARMANDO LEYVA,

 Defendant and Appellant.

2d Crim. No. B320760

(Super. Ct. No. 2021005005)

(Ventura County)

Jorge Armando Leyva appeals from the judgment after the 

trial court sentenced him to three years in state prison for arson 

of an inhabited structure. He contends: (1) his waiver of jury 

trial was invalid, and (2) the trial court erred in ordering 

restitution to the Oxnard Fire Department. Because the jury 

waiver here was invalid, we reverse.

FACTUAL AND PROCEDURAL HISTORY

Leyva was charged with arson of an inhabited structure
2

(the Oxnard homeless shelter) (Pen. Code, § 451, subd. (b))1

(count 1) and, for another incident, arson of property (§ 451, subd. 

(d)) (count 2). The court found Leyva incompetent to stand trial 

(§ 1370, subd. (a)(1)(B)). Five months later, based on evaluations 

of two doctors, the court found Leyva competent (§ 1370, subd. 

(a)(1)(A)). 

Five months after the competency finding, defense counsel 

told the court, “I discussed this matter with Mr. Leyva and he’s 

going to waive jury at this time.” The court advised Leyva that 

“if you need to talk to [defense counsel], you can.” No written 

waiver form was used. Instead, the following colloquy occurred: 

“[Court]: All right. Mr. Leyva, you do have a right to a 

jury trial in this case. Are you willing to waive your right to a 

jury trial and instead of having your case decided by a jury of 12 

individuals, you agree to have a judge decide and have a Court

trial instead?

“[Leyva]: I’d rather have a judge.

“[Court]: All right. And so that’s a yes, correct? 

“[Leyva]: Yes.

“[Court]: You’d rather have a judge?

“[Leyva]: Yes.

“[Court]: And do you also understand that you have certain 

Sixth Amendment rights to confront and cross-examine witnesses 

where a jury would be the one determining credibility and weight 

of evidence, but instead, by waiving your right to a jury trial, that 

will be a judge making that decision? Do you understand that?

“[Leyva]: Yes. 

1 Subsequent undesignated statutory references are to the 

Penal Code.
3

“[Court]: All right. And you also understand if you were to 

have a jury trial, you’d have a Fifth Amendment right to remain 

silent and a jury would be told they couldn’t hold that against you 

and they could not consider that in deliberating and weighing the 

evidence? You’d still have that same right, but it wouldn’t be a 

jury; it would be a judge? Do you understand that?

“[Leyva]: Can I ask a question?

“[Defense counsel]: Why don’t you ask me.

“[Court]: Ask [defense counsel], please. 

“[Defense counsel]: Sorry, your Honor. Could the Court 

repeat its last question?

“[Court]: Sure. You understand that you’d have a Fifth 

Amendment right where a jury would be told they could not hold 

that against you and they couldn’t consider that? 

“[Leyva]: Yes, sir.

“[Court]: And you’re giving up that right as far as having a 

jury consider that, but you’d still have a Fifth Amendment right; 

it would just be a judge. Do you understand that?

“[Leyva]: Yes, sir. 

“[Court]: All right. I’ll show that the defendant has 

knowingly, intelligently and understandingly waived his right to 

a jury trial and instead is electing a Court trial to have a judicial 

officer make those determinations.” 

The trial court found Leyva guilty of count 1 and not guilty 

of count 2. It sentenced Leyva to the low term of three years in 

state prison. Without objection, the court ordered Leyva to pay 

restitution of $921.38 to the Oxnard Fire Department.

DISCUSSION

Jury waiver

Leyva contends his waiver of jury trial was invalid. We 
4

agree.

The federal and state constitutions guarantee the right to 

trial by jury. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16.) 

“The denial of a defendant’s constitutional right to a jury trial 

constitutes structural error that requires reversal regardless of 

the strength of the evidence supporting the conviction. 

[Citations.]” (People v. Jones (2018) 26 Cal.App.5th 420, 429.)

A waiver of jury trial 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.” ’ ” ’ [Citation.]” (People v. Sivongxxay

(2017) 3 Cal.5th 151, 166 (Sivongxxay).) Trial judges need not 

follow a rigid formula or use any particular words to ensure that 

a jury waiver is knowing and intelligent. (Id. at pp. 169-170.)

“The voluntariness of a waiver is a question of law which 

appellate courts review de novo.” (People v. Panizzon (1996) 13 

Cal.4th 68, 80 [waiver of appeal]; People v. Morelos (2022) 13 

Cal.5th 722, 735 [Faretta waiver].) A jury waiver is valid only 

“ ‘ “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 (lead opn. of Cuéllar, J.)

(Daniels).) “The burden is on the party claiming the existence of 

the waiver to prove it by evidence that does not leave the matter 

to speculation, and doubtful cases will be resolved against a 

waiver.” (People v. Smith (2003) 110 Cal.App.4th 492, 500-501.)

In 2017, our Supreme Court provided guidance for jury 

waivers in criminal cases. “Going forward, we recommend that 

trial courts advise a defendant of the basic mechanics of a jury 
5

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.” (Sivongxxay, supra, 3 Cal.5th at p. 169.)

The trial court failed to heed that guidance here. Only one 

of the four advisements was fully given, i.e., that a judge alone 

would decide the case. The court advised that a jury consists of 

“12 individuals” but “the record does not show whether [Leyva]

understood that a jury is comprised of individuals from the 

community.” (People v. Jones, supra, 26 Cal.App.5th at p. 423.) 

“ ‘ “[T]he essential feature of a jury obviously lies in the 

interposition between the accused and his accuser of the 

commonsense judgment of a group of laymen, and in the 

community participation and shared responsibility that results 

from that group’s determination of guilt or innocence.” ’ 

[Citation.]” (Id. at p. 432.) 

The court also did not advise Leyva of two significant rights 

listed in Sivongxxay: that he could participate in jury selection

through his attorney, and that the jury verdict must be 

unanimous. Counsel’s participation in jury selection is part of 

providing an effective defense. (People v. Locklar (1978) 84 

Cal.App.3d 224, 229.) The defendant has a right to participate in 

jury selection by consulting with counsel. (See People v. 

Kocontes (2022) 86 Cal.App.5th 787, 873-875 [right to consult 

counsel during trial]; People v. Wall (2017) 3 Cal.5th 1048, 1059

[jury selection a “ ‘critical stage’ ” of trial, defendant has 

“ ‘constitutional right to be present’ ”].) And the right to a 
6

unanimous verdict is an essential element of the right to jury 

trial. (Ramos v. Louisiana (2020) ___ U.S. ___, ___ [140 S.Ct. 

1390, 1396-1397, 206 L.Ed.2d 583]; People v. Traugott (2010) 184 

Cal.App.4th 492, 500.) While the failure to advise of either of 

these rights does not automatically invalidate a jury waiver, their 

absence combined with the lack of a “robust oral colloquy” 

(Sivongxxay, supra, 3 Cal.5th at p. 169) shows the waiver was not 

knowing and intelligent based on the totality of the 

circumstances.

Sivongxxay also recommended that trial courts take 

“additional steps,” for example, “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.” 

(Sivongxxay, supra, 3 Cal.5th at pp. 169-170.) Defense counsel 

here advised the court that he “discussed this matter with Mr. 

Leyva,” but the court did not inquire whether counsel explained 

the differences between a jury trial and a court trial, or whether 

Leyva understood. (Cf. People v. Weaver (2012) 53 Cal.4th 1056, 

1070-1071 [in two-hour discussion, attorney “fully explained”

difference between jury trial and court trial].) Leyva attempted 

to ask a question of the court but was told to ask his attorney. 

The record does not reflect that Leyva and his counsel took a 

break from the proceedings to discuss his question, much less

that Leyva received an answer to his question. The court should 

have directed Leyva and his counsel to take a break from the 

proceedings to address Leyva’s question. 

A “ ‘defendant’s prior experience with the criminal justice 
7

system’ is . . . ‘relevant to the question of whether he knowingly 

waived constitutional rights.’ ” (People v. Mosby (2004) 33 

Cal.4th 353, 365.) At trial, and after Leyva had purportedly 

waived a jury trial, Leyva’s criminal history summary (“rap 

sheet”) and the court dockets from two previous felony cases were 

admitted as relevant to aggravating circumstances. (Cal. Rules 

of Court, rule 4.421(b)(2).) Although he had several prior 

convictions, the record does not include the specific advisements 

or waivers given to Leyva in those cases. The docket from a 2018

felony jury trial showed Leyva was present when his attorney 

participated in jury selection. But we do not assume that Leyva 

considered those proceedings when he waived jury here more 

than three and half years later. This case is unlike Mosby, where 

the defendant was aware of his trial rights when he admitted a 

prior conviction because he “had just undergone a jury trial” on 

the substantive offense. (Mosby, at p. 364.) Mosby relied on

United States v. Dawson (9th Cir. 1999) 193 F.3d 1107, 1110-

1111, where an incomplete advisement of rights was preceded 

less than two months earlier by a full advisement in another 

case. (See Daniels, supra, 3 Cal.5th at p. 1002 (lead opn. of 

Cuéllar, J.) [“only an attenuated connection, at best” with oral 

advice for guilty pleas a decade earlier].)

Other circumstances support our conclusion that the 

prosecution has not established a valid waiver. No written 

waiver form was used. While a written waiver is not required, it 

can be helpful to establish the adequacy of a jury waiver. (See 

People v. Weaver, supra, 53 Cal.4th at p. 1070.) Similarly, while 

the absence of an express finding of voluntariness here does not 

automatically invalidate a jury waiver (People v. Smith, supra,

110 Cal.App.4th at p. 502), the record does not include a factual 
8

basis to establish voluntariness such as an inquiry regarding 

threats or promises made in exchange for waiving jury. (See 

People v. Morelos, supra, 13 Cal.5th at p. 754; Daniels, supra, 3 

Cal.5th at p. 988 (lead opn. of Cuéllar, J.).)

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

we reversed an MDO commitment order on the ground that 

Blancett’s jury trial waiver was not knowing and intelligent. As 

in Blancett, the trial court here failed to “explain the significant 

attributes or mechanics of a jury trial.” (Id. at p. 1206.) Nor did 

the trial court inquire whether the defendant “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 [the defendant] had any questions about 

the waiver.” (Ibid.) And, like Blancett, “we have no record of the 

advisements [Leyva] received” in other criminal matters. (Ibid.)

“Crowded dockets, constrained budgets, and overwhelming 

caseloads for public attorneys create undeniable pressure to 

speed criminal cases along” (Sivongxxay, supra, 3 Cal.5th at p. 

216), but “the trial court is not merely a passive receiver of an 

attempted [jury] waiver. . . . The court’s obligation ‘to advise 

[the] defendant of his right to [a] jury trial’ and to ‘determine 

impartially whether [the] defendant’s waiver of jury trial was 

knowing, intelligent, and voluntary’ is a ‘constitutional 

procedural duty.’ ” (Daniels, supra, 3 Cal.5th at p. 993.)

Our Supreme Court has encouraged judges to engage in a 

“robust oral colloquy” with criminal defendants to ensure they 

are fully aware of the rights they give up when waiving the 

constitutional right to a jury trial. (Sivongxxay, supra, 3 Cal.5th

at p. 169.) The court recommended this include a discussion 

about “the basic mechanics of a jury trial,” including the right to 
9

participate in jury selection through counsel and being advised 

that all the jurors must agree for a verdict. (Id. at pp. 166, 169.) 

Based on the record before us, there was no robust oral colloquy. 

Thus, we cannot conclude based on the totality of the 

circumstances that Leyva waived 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.)

Restitution

Leyva contends the trial court erred when it ordered him to 

pay restitution to the Oxnard Fire Department for its costs in 

fighting the fire. Because we reverse the judgment, we need not 

determine whether the facts of the case authorized the restitution 

order.

DISPOSITION

The judgment is reversed.

NOT TO BE PUBLISHED.

BALTODANO, J.

I concur:

GILBERT, P. J.
YEGAN, J., Dissenting: 

I respectfully dissent. This meaningless reversal is an 

exaltation of form over substance. Considering the totality of the 

circumstances, I would conclude Leyva knowingly, intelligently, 

and voluntarily waived his right to a jury trial. In People v. 

Sivongxxay (2017) 3 Cal.5th 151 (Sivongxxay), our Supreme 

Court “offer[ed] some general guidance” and “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 

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

or innocence.” (Id. at p. 169.) The Court also suggested that 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. (Id. at pp. 169-170.)

In concluding that the jury waiver here was invalid, the 

majority contends, “[t]he trial court failed to heed [the] guidance” 

provided by Sivongxxay because “[o]nly one of the four 

advisement was fully given,” i.e., that the judge alone would 

decide the case. (Maj. opn. ante, at pp. 4-5.) But the guidelines 

provided in Sivongxxay are not mandatory. Indeed, the Supreme 

Court “emphasize[d] that [its] guidance [was] not intended to 

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

supra, 3 Cal.5th at p. 170.) Instead, 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.” (Ibid.)
2

The jury waiver in this case is not a “barebones colloquy” 

like that in People v. Blancett (2017) 15 Cal.App.5th 1200. There, 

the trial court “asked only if Blancett was ‘okay’ with a court trial 

instead of a jury trial.” (Id. at p. 1206, italics added.) In addition 

to the “stark colloquy,” we considered the lack of evidence that 

Blancett had discussed his jury trial right and waiver with 

counsel, his inexperience with the criminal justice system, and 

his lack of familiarity with the MDO (mentally disordered 

offender) proceedings. (Id. at pp. 1206-1207.) This case is unlike 

Blancett because the trial court’s advisements here, taken 

together with Leyva’s prior jury trial experience as indicated in 

the record, demonstrate that he was aware that (1) a jury is made 

up of 12 members of the community, (2) he could participate in 

jury selection through his attorney, and (3) by waiving his right 

to a jury trial, the judge would decide his guilt or innocence. 

Although the trial court did not advise Leyva that a jury 

verdict must be unanimous, our Supreme Court has “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.) 

The record also reflects that Leyva had the opportunity to 

discuss the matter of waiver with his attorney both before and 

during the hearing, which also satisfied one of the “additional 

steps” recommended in Sivongxxay to ensure that a defendant 

comprehends what the jury trial right entails. (Sivongxxay, 

supra, 3 Cal.5th at p. 169.)

Nevertheless, the majority concludes that Leyva was not 

advised of “‘the basic mechanics of a jury trial.’” (Maj. opn. ante, 

p. 8.) For example, the majority contends “the [trial] court did 
3

not inquire whether counsel explained the differences between a 

jury trial and a court trial, or whether Leyva understood.” (Id. at 

p. 6.) The majority also contends that “[t]he record does not 

reflect that Leyva and his counsel took a break from the 

proceedings to discuss his question [during the waiver colloquy], 

much less that Leyva received an answer to his question.” (Ibid.) 

First, the record does not show that Leyva’s question went 

unanswered. Second, the majority overlooks the crucial role of 

counsel. “Counsel is presumed competent and informed as to 

applicable constitutional and state law . . . . Counsel . . . can be 

expected, where necessary or advisable, to consult with the client 

about jury trial concerns.” (People v. Barrett (2012) 54 Cal.4th

1081, 1105; People v. Daniels (2017) 3 Cal.5th 961, 996 (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”]; 

Daniels, 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”].) 

Here, the record reflects that counsel expressly informed 

the trial court that she “discussed this matter with Mr. Leyva” 

and that he is “going to waive jury at this time.” When the trial 

court informed Leyva that he had a right to a jury trial decided 

by 12 individuals, Leyva responded that he would “rather have a 

judge.” The relevant circumstances here, including the colloquy, 

Leyva’s prior trial experience, and the fact that he was

represented by counsel, support the trial court’s finding that 
4

Leyva knowingly and intelligently waived his right to a jury trial. 

The majority also relies on “[o]ther circumstances” to 

support its conclusion that “the prosecution has not established a 

valid waiver,” specifically, the lack of a written waiver form and 

the absence of an express finding of voluntariness. (Maj. opn. 

ante, p. 7.) But the law has not mandated any specific method for 

finding a valid waiver. Rather, reviewing courts must examine 

the totality of the circumstances. (See Sivongxxay, supra, 3 

Cal.5th at pp. 167, 169 [“eschew[ing] any rigid formula or 

particular form of words that a trial court must use in taking a 

jury waiver”]; People v. Smith (2003) 110 Cal.App.4th 492, 502 

[no requirement that the court make an express finding that 

waiver was knowing and voluntary].) 

Considering the totality of the circumstances here, I would 

conclude Leyva’s jury waiver was knowing, intelligent, and 

voluntary. Accordingly, I would affirm the trial court’s judgment.

NOT TO BE PUBLISHED.

YEGAN, J.
Derek D. Malan, Judge

Superior Court County of Ventura

______________________________

Mi Kim, 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, Assistant 

Attorney General, Steven D. Matthews and Michael J. Wise, 

Deputy Attorneys General, for Plaintiff and Respondent.