Metropolitan News-Enterprise


Wednesday, March 15, 2023


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Jury Waiver That Deviated From Guidelines Wasn’t Knowing, Intelligent, Voluntary—C.A.

Dissent Says Defendant Knew What He Was Doing 


By a MetNews Staff Writer


The Court of Appeal for this district has reversed an arson conviction on the ground that the defendant was not adequately advised of the rights he was relinquishing in waiving trial by a jury, with a dissenting justice protesting that the record shows that the defendant clearly knew what he was doing.

Justice Hernaldo J. Baltodano authored the unpublished opinion for Div. Six, in which Presiding Justice Arthur Gilbert joined. The opinion affirms the conviction by Ventura Superior Court Judge Derek D. Malan of Jorge Armando Leyva for arson of an inhabited structure.

Malan failed to follow the guidelines set forth by the California Supreme Court in People v. Sivongxxay. Baltodano declared. Justice Kenneth Yegan, dissenting, maintained:  “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.”

The colloquy that took place appears in a box below.

Then-Chief Justice Tani Cantil-Sakauye (now retired) wrote the opinion in Sivongxxay, a case in which a death sentence was upheld. She said:

“[W]e offer 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. Going forward, we recommend 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.”

Tani Cantil-Sakauye added:

“We also recommend 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. Ultimately, a court must consider the defendant’s individual circumstances and exercise judgment in deciding how best to ensure that a particular defendant who purports to waive a jury trial does so knowingly and intelligently.”

Baltodano ’s Opinion

Baltodano said that “[o]nly one of the four advisements” enumerated in Sivongxxay “was fully given”: that a jury waiver would mean that a judge would decide the case. He noted that the judge gave no warning that a waiver would mean he was losing the right to participate in jury selection and that a jury verdict would have to be unanimous.

The justice wrote:

“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’…shows the waiver was not knowing and intelligent based on the totality of the circumstances.”

Right to Silence

The transcript shows that Malan queried whether Leyva understood that he had a Fifth Amendment right not to testify, that a jury would be told that if he did not testify his silence could not be held against him, and that if he waived a jury, he would still have that right of silence but it would be the judge, not a jury, who would be respecting that right.

Leyva said he had a question; his lawyer, Deputy Public Defender Barbara Volpe, suggested that the judge repeat his inquiry to the defendant; Malan broke his inquiry into two parts to simplify it; Leyva said he understood and assented. As Baltodano sized it up:

“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.”

Yegan’s Dissent

In his dissent, Yegan observed that “the guidelines provided in Sivongxxay are not mandatory.” He quoted Cantil-Sakauye as noting that the guidelines were “not intended to limit trial courts to a narrow or rigid colloquy” and 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.”

The dissenter disputed Baltodano ’s assertion that Leyva had a question he wanted to pose that went unanswered. He pointed out that Leyva acted under the guidance of counsel, and questioned the relevancy of the California Supreme Court’s 2017 decision in People v. Blancett, cited by Baltodano , saying that “[t]he jury waiver in this case is not a ‘barebones colloquy’ like that in” Blancett, remarking:

“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.”

Yegan asserted:

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

The case is People v. Leyva, B320760.







At a hearing on Feb. 23, 2022, defendant Jorge Armando Leyva waived his right to a trial by jury in the prosecution of him in Ventura Superior Court on a charge of arson of an inhabited dwelling. After Deputy Public Defender Barbara Volpe told Judge Derek D. Malan that ““I discussed this matter with Mr. Leyva and he’s going to waive jury at this time” and Malan advised the defendant that he could confer with Volpe if he wished, the following dialogue took place:


[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.

[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.



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