P. v. Jackson

Filed 1/10/20 P. v. Jackson CA8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHNNY EARL JACKSON, JR.,
Defendant and Appellant.
B293680
(Los Angeles County
Super. Ct. No. NA104857)
APPEAL from a judgment of the Superior Court of Los
Angeles County. Judith L. Miller, Judge. Affirmed.
Janet Uson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Steven D. Matthews and Heidi
Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________

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INTRODUCTION
A jury convicted defendant and appellant Johnny E.
Jackson Jr. of second-degree robbery. Jackson waived his right
to a jury trial on multiple prior conviction allegations, and the
trial court found the allegations true. On appeal, Jackson
contends his waiver of a jury trial was not knowing, intelligent,
or voluntary. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND1
Jackson was charged by information with one count of
robbery in the second degree (Pen. Code, § 212.5, subd. (c)).2
It was further alleged that, for purposes of section 667.5,
subdivision (b), Jackson had suffered four prior convictions.
In addition, it was alleged one of his prior convictions qualified as
a serious felony for purposes of sentencing enhancements under
sections 667 and 1170.12.
During trial, Jackson admitted suffering the prior
convictions. The jury convicted him of second-degree robbery,
and the court sentenced him to 10 years in prison.3
On appeal of that judgment, we concluded Jackson’s
admissions of the prior convictions were not voluntary and
intelligent. (See People v. Jackson, supra, B280386.) After
vacating the admissions and sentence, we remanded the case so
1 We take some of the facts from our prior nonpublished
opinion in this case, People v. Jackson, (May 7, 2018, B280386)
[nonpub. opn.].
2 All further unspecified section references are to the Penal
Code.
3 The details of Jackson’s crime is not relevant to this appeal,
so we need not discuss them.

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the trial court could take proper admissions or allow Jackson to
assert his right to a jury or court trial on the prior conviction
allegations.
At the initial hearing on remand, Jackson’s counsel
requested a jury trial on the prior conviction allegations. After
further discussion with the court, Jackson eventually waived his
right to a jury trial and agreed to a court trial. The following
discussion occurred at that hearing:
“The Court: This is a remittitur that has come back.
What date would you like to set for either pretrial or
further proceedings or hearing?
[Prosecutor]: Jury trial.
The Court: Jury trial?
[Defense Counsel]: Yes.
The Court: It’s a jury trial on the priors?
[Defense Counsel]: Correct.
The Court: You’re doing a jury trial—
[Defense Counsel]: Apparently so.
The Court: —on the priors?
[Defense Counsel]: Yes.
[Prosecutor]: Counsel asked that I give him a
different deal—give him a deal on that, and I said,
‘No,’ because it’s a trial. That’s what he got
sentenced to. There are technical issues.
The Court: Okay.
[Prosecutor]: There we have it.
[Defense Counsel]: Based on my reading, the worst
he could possibly get is what he’s already gotten.
The Court: I understand. Let’s go off the record for a
second.

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[¶] . . . [¶]
[Defense Counsel]: Can I just talk to him for a
second?
(Counsel conferring with client.)
The Court: Okay. So this matter has been brought
back from the appellate court, so I have no doubt,
Mr. Jackson, that [defense counsel] has thoroughly
explained to you what’s going on.
I’m not really sure what happened in the first
trial. I believe it was with Judge Kim—correct me if
I’m wrong—but there was a mistake or something
happened in regards to the prior convictions that
occurred in that trial, so the appellate court sent it
back to us to basically fix whether or not you were
properly adjudicated on those prior convictions.
The appellate court essentially said, ‘No, you were
not adjudicated on them,’ so they sent it back to us to
figure it out.
The other thing that the appellate court has
made very clear is that the sentence that Judge Kim
gave you has flat out been vacated, which means,
depending on what happens with those prior
convictions, I, as a new judge on the case, may have
different discretion to sentence you.
I can never sentence you more—to more than
what you had already gotten from Judge Kim. There
may be—I haven’t reviewed your file, so let me be
clear—there may be discretion where I could
sentence you less, if I felt that the case warranted a
little bit less. I’m not making any representations to

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you that I will do that. As I said, I don’t know
anything about the case.
So it comes to us, at this point in time
with: Are we going to have a full-blown jury
trial on those prior convictions?
Just so you understand, if this case goes
to the jury, all the jury is deciding whatsoever
is whether the paperwork that’s been
submitted to—as an exhibit. So often, it’s just
literally rap sheets, prison packets.
Whether that paperwork—by the way, a
stamped official is really official. All I’m—and I
actually decide identification on that
paperwork. I then decide whether that
paperwork qualifies under the law for different
levels of priors—whether it’s one year, five
year, a strike, et cetera, et cetera. They don’t
even decide that.
All they’re looking is looking at pieces of
paper and deciding, ‘Is this a valid piece of
paper and that a person by your name suffered
certain prior convictions.’ We don’t have to do
that by way of jury trial. We can do that by
way of a court trial. So by way of the court
trial, it just gets rid of the jury, but the
evidence is still presented.
I just listen and review the paperwork.
I’m actually familiar with that paperwork, so I
can decide whether I see something that
appears to be false or not false. I’m the trier of

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fact on that. Now, you do have the right to have 12
jurors decide that. That spends a lot of time. You’re
eating up time here in county jail, so you’re not
spending whatever time at state prison. I know it
sounds weird, but a different facility where you can
get going with other things.
The Defendant: It’s terrible.
The Court: What?
The Defendant: It’s terrible being in county jail.
The Court: It’s terrible.
Well, I don’t doubt that any jail facility would
be terrible—whether it’s state prison or county jail.
Of course, I would understand, sir, that no facility of
such nature would be fun to stay at.
My only understanding—at least at state
prison—is you might be able to start working a job,
earning money, things like that, whereas at county
jail, you cannot do that.
To say it’s an advantage, I know that that’s a
misnomer, but at least there are some things you can
do a little bit differently at state prison.
So sir, if you had a jury trial, you would then
have the right—your attorney would have the right to
cross-examine and confront witnesses about this
paperwork. Usually it’s a DA clerk that comes in and
testifies to the nature of the paperwork, but they
don’t even have to do that if the paperwork is fairly
self-explanatory.
If you want to present a defense to that
paperwork, maybe you have some contrary

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paperwork or even you—you could do that, and
then you would have the right to testify
whether that paperwork is valid or not.
Do you want all that to happen or do
you—in front of a jury, or do you agree all that
can happen just in front of me as a court trial?
The Defendant: Second option, just a court trial.
The Court: Okay. So let’s just be clear. Your
attorney has recommended earlier a jury trial, but he
just wanted to make sure that all T’s crossed and I’s
were dotted with the appellate court at this time.
I’ve explained the options to you. You are
willing to waive your right to a jury trial, the
right to cross-examine and confront witnesses,
present a defense, and remain silent. And all
those rights still exist, just so we’re clear, in a
court trial. Do you agree to that sir?
The Defendant: I agree.
The Court: Okay. Very good, sir. Thank you very
much. Jury trial is waived.”
At the subsequent court trial, the People presented
certified records showing Jackson suffered the prior convictions
as alleged. Jackson argued the paperwork did not sufficiently
identify him as the defendant in the prior cases. The court
disagreed and found true the prior conviction allegations. It
sentenced Jackson to an aggregate term of 10 years and imposed
various fines and fees.
Jackson timely appealed.

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DISCUSSION
Jackson’s sole contention on appeal is that his waiver of a
jury trial on the prior conviction allegations was not knowing,
intelligent, or voluntary. We disagree.
When the People allege a prior conviction sentencing
enhancement, the defendant has a statutory right to a jury trial
on the factual issues raised by a denial of the allegation of prior
convictions. (People v. Vera (1997) 15 Cal.4th 269, 274; In re
Yurko (1974) 10 Cal.3d 857, 863.) The defendant may waive the
right to a jury trial and have the court determine the truth of the
allegation. (§ 1158.)
The trial court may only accept a defendant’s waiver of the
right to a jury trial if it is knowing, intelligent, and voluntary.
(People v. Collins (2001) 26 Cal.4th 297, 305.) A waiver is
knowing and intelligent if made with a full awareness of the
nature of the right being abandoned and the consequences of the
decision to abandon it. A waiver is voluntary if the product of a
free and deliberate choice rather than intimidation, coercion, or
deception. (Ibid.)
A trial court is not required to give a specific colloquy
before accepting a defendant’s waiver. (People v. Sivongxxay
(2017) 3 Cal.5th 151, 170 (Sivongxxay).) Nonetheless, the
Supreme Court recommends 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

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Supreme Court also recommends “trial judge[s] take additional
steps as appropriate to ensure, on the record, that the defendant
comprehends what the jury trial right entails.” (Ibid.)
There is no specific method for determining whether a
defendant has made a knowing, intelligent, and voluntary waiver
of a jury trial in favor of a court trial. (Sivongxxay, supra,
3 Cal.5th at p. 167.) Instead, we must examine the totality of the
circumstances. (Ibid.)
Here, we conclude Jackson entered a knowing, intelligent,
and voluntary jury waiver. Jackson was represented by counsel
throughout the case, including during the specific hearing at
issue. At that hearing, the court expressly informed him that,
on the prior conviction allegations, he had the right to a trial by
12 jurors at which he could cross-examine and confront
witnesses, present evidence, and testify in his own defense.
The court further explained the relevant characteristics of a court
trial. It then asked Jackson whether he wanted a jury trial or
court trial, to which Jackson responded that he wanted a court
trial. Before accepting this implicit waiver, the court reminded
Jackson his counsel previously requested a jury trial and asked
explicitly whether he agreed to waive his right to a jury trial;
Jackson responded that he did. In addition, Jackson had very
recently completed a full jury trial on the underlying offense,
during which he would have gained familiarity with the
fundamental aspects of a jury trial. (See Sivongxxay, supra,
3 Cal.5th at p. 167 [considering the defendant’s prior experience
with the criminal justice system as relevant to whether his jury
waiver was knowing and intelligent].) Considered as a whole,
the circumstances surrounding Jackson’s waiver demonstrate it
was knowing, intelligent, and voluntary.

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Jackson sets forth various arguments as to why his waiver
was not knowing and intelligent, none of which has merit. First,
he complains that the court improperly minimized the jury’s role
and diminished the evidence presented at a trial as mere
“paperwork” and “pieces of paper.” Jackson does not, however,
contend the court’s representations were false or misleading.
It is apparent the court’s statements were meant to convey to
Jackson the limited nature of the jury trial, likely to disabuse
him of any erroneous notion that it would concern the merits of
the underlying convictions.
Jackson additionally contends his waiver was not knowing
and intelligent because the trial court failed to give all the
advisements recommended by the Supreme Court in Sivongxxay,
including that a jury is composed of 12 members of the
community, his counsel would assist in selecting the jury, and all
12 jurors must unanimously agree to render a verdict. The
Supreme Court was clear that such advisements are not required
and “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.” (Sivongxxay, supra, 3
Cal.5th at p. 170.) Here, we have little doubt Jackson was
familiar with these basic aspects of a jury trial given the recency
of his jury trial on the underlying offense.
Next, Jackson asserts the court improperly represented it
had expertise when it stated, “I’m actually familiar with that
paperwork [on prior convictions], so I can decide whether I see
something that appears to be false or not false. I’m the trier of
fact on that.” Implicit in this argument is that Jackson would
have welcomed such expertise, which we doubt. Indeed, Jackson
did not argue during his court trial that the paperwork was false.

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We are not convinced, therefore, the court’s representations had
any impact on Jackson’s decision.
Jackson further asserts the trial court erred in failing to
inquire whether he had any questions, wanted to consult with his
attorney, and understood the rights being waived, as well as
failing to make an inquiry of counsel on the record. A trial court
is not required to make such inquiries in every case. (See
Sivongxxay, supra, 3 Cal.5th at p. 170.) For the reasons
discussed above, we do not think they were required under the
circumstances here.
We are also not persuaded by Jackson’s various arguments
as to why his waiver was not voluntary. First, he suggests the
trial court improperly indicated he might receive a lesser
sentence if he waived a jury trial. In support, he points to the
court’s statements that it may have discretion to give him a
lesser sentence than the prior court gave. The record does not
demonstrate, however, that the court explicitly or implicitly tied
its sentencing discretion to Jackson’s wavier of a jury trial.
Rather, the court made these comments in the context of
discussing the procedural posture of the case, and particularly
the fact that Jackson’s prior sentence had been vacated. The
court was also clear that it was not making any representations
regarding Jackson’s sentence, which it would not even consider
until it became more familiar with the case.
Jackson additionally suggests the court improperly coerced
him to waive a jury trial by noting such a trial would take “a lot
of time” during which he would remain in county jail. This was
not coercion. The court did not threaten to delay Jackson’s case if
he elected a jury trial. Nor did it offer to accelerate the case if he
elected a court trial. Rather, it made a truthful statement about

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something that may not have been obvious to Jackson: a jury
trial would require he remain in county jail for an extended
period of time. Jackson clearly welcomed such information.
People v. Collins, supra, 26 Cal.4th 297, upon which
Jackson relies, is distinguishable. There, the Supreme Court
held a trial court improperly persuaded a defendant to waive his
right to a jury trial when, “upon learning that defendant might
waive jury trial, the court informed defense counsel that ‘there
might well be a benefit in it,’ because ‘just by having waived jury’
and thus not taking two weeks’ time to try the case, ‘that has
some effect on the court.’ ” (Id. at p. 309.) The Supreme Court
explained that such comments improperly offered to reward the
defendant for refraining from exercising a fundamental
constitutional right. (Ibid.) Here, in contrast, the trial court did
not offer, implicitly or explicitly, to reward Jackson for waiving
his right to a jury trial. Nor did it threaten to punish him if he
refused such a waiver.
DISPOSITION
We affirm the judgment.
BIGELOW, P. J.
We concur:
STRATTON, J.
WILEY, J.

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