The right to trial by jury is one of the most fundamental constitutional rights that is designed to prevent governmental oppression and arbitrary law enforcement.[288]  The public interest in having a criminal trial conducted by juries is so important that a criminal defendant may not waive the right to a trial by jury except under limited circumstances.[289]  The prosecutor must consent and an express waiver must be given personally by the defendant and will never be presumed from a silent record.[290]  The California Constitution also requires that a jury trial must be expressly and knowingly waived in open court personally by the accused,[291] and the California courts have repeatedly emphasized the fundamental nature of the right to trial by jury.[292]

 

            A valid jury waiver is constitutionally required.[293]  Any error with respect to a constitutionally required admonition and waiver is error per se.[294]  A harmless error standard does not apply to an inadequate jury waiver because the right to trial by jury is fundamental under the federal constitution, and its denial is “structural error,” warranting reversal without requiring a showing of prejudice.[295]  Under the California Constitution, the right to jury trial is also fundamental, and its denial is considered a “structural defect in the proceedings,” resulting in a “miscarriage of justice” within the meaning of California Constitution, article VI, section 13.[296]  A per se rule of reversal applies not only with respect to the failure to obtain a knowing waiver of the constitutional right to a jury trial, but also to an involuntary waiver obtained as the result of coercion by the trial court.[297]

 

            Where the defendant wishes to waive jury, but will present evidence and contest guilt before the court in a bench trial, the record must still reflect that the defendant understood the nature of his or her right to a jury trial, and waived it intelligently and understandingly.[298]  

 

            Because trial by jury is the constitutionally preferred method to resolve criminal trials, the U.S. Supreme Court has made clear that courts should not lightly approve jury trial waivers:

 

Trial by jury is the normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses.  In such cases the value and appropriateness of jury trial have been established by long experience, and are not now to be denied. Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact-finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant.  And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.[299]

 

The clearest case of violation of the right to trial by jury is where the court does not advise the defendant of this right, or does not obtain an express waiver of the fundamental constitutional right to trial by jury.[300]

[288] See Duncan v. Louisana, 391 U.S. 145 (1968).

[289] See Patton v. United States, 281 U.S. 276 (1930).

[290] See United States v. Saadya, 750 F.2d 1419 (9th Cir. 1985).

[291] Cal. Const., Art. I, § 16; People v. Ernst (1994) 8 Cal.4th 441, 448 (anything less than personal waiver by defendant of right to jury trial requires reversal of resulting conviction); People v. Holmes (1960) 54 Cal.2d 442, 442 (waiver of right to jury trial cannot be implied from conduct).

[292] People v. Collins (2001) 26 Cal.4th 297.

[293] People v. Wright, 43 Cal.3d 487, 493, 233 Cal.Rptr. 69, 72 (1987).

[294] Id., 43 Cal.3d at 494, 233 Cal.Rptr. at 72; see also People v. Collins (2001) 26 Cal.4th 297.

[295] People v. Collins (2001) 26 Cal.4th 297.

[296] Ibid.

[297] Ibid.

[298] See People v. Lookadoo (1967) 66 Cal.2d 307, 311, 57 Cal.Rptr. 608, 610.

[299] Patton, 281 U.S. at 312-313 (emphasis added).

[300] People v. Ernst (1994) 8 Cal.4th 441, 444-445.

Ninth Circuit

POST CON RELIEF " GROUNDS " JURY TRIAL WAIVER
United States v. Shorty, 741 F.3d 961 (9th Cir. Dec. 20, 2013) (district court failed to take the necessary precautions to ensure defendants jury-trial waiver was made knowingly and intelligently, after learning that defendant had low I.Q. and was learning disabled, when district court failed to conduct in-depth colloquy concerning jury-trial waiver).

Other

CAL POST CON " GROUNDS " GUILTY PLEA " WAIVERS " INSUFFICIENT DOCUMENTATION IN CLERK'S MINUTES
Short Answer Cases in both the Boykin-Tahl and 1016.5 lines of jurisprudence suggest that a clerks check marks on a waiver form, standing alone, will not be enough to show that the defendant knowingly and voluntarily waived a right if the adverse consequence is a direct result of the conviction. (See In re Birch (1973) 10 Cal.3d 314 [110 Cal.Rptr. 212]; People v. Dubon (2001) 90 Cal.App.4th 944 [108 Cal.Rptr.2d 914].) Longer Answer A. Boykin-Tahl case law In the Boykin-Tahl context, courts have held that, when the ignominy and duration of the adverse consequences of a conviction make it a particularly harsh sanction, a rubber-stamped notation of a waiver in the clerks docket entry is insufficient to establish that that waiver was knowing, voluntary, and intelligent. (People v. Zaidi (2007) 147 Cal. App.4th 1470, 1482 [55 Cal.Rptr.3d 566].) In the seminal case of In re Birch (1973) 10 Cal.3d 314 [110 Cal.Rptr. 212], the Defendant was convicted of Penal Code section 647, subdivision (a). The reporters transcript of the oral proceedings revealed only that the trial judge advised Birch of the charge against him, asked how he pled, and, upon Birchs response of guilty, suspended the imposition of sentence upon condition that Birch serve five days in jail. (Id. at p. 317.) The clerks docket entry, by contrast, contained hand-checked, rubber-stamped entries which purported to indicate that Birch had expressly waived his right to counsel and various other constitutional rights and that the court had found that the waivers were waived knowingly, intelligently, and understandingly. (Ibid.) The Court found that the docket entry was directly contradicted by the reporters transcript. (Id. at 321.) To avoid uncertainties regarding whether a waiver was tendered, the court admonished that to be adequate docket entries must specifically list the rights of which the defendant is actually advised . . . . No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead . . . . (Id. at 321 [citing In re Smiley (1967) 66 Cal.2d 606, 617 [58 Cal.Rptr. 579]].) Moreover, the court found that the trial court, in addition to advising a defendant of the right to counsel, has the responsibility to determine that an unrepresented defendant understands the nature of the charge, the elements of the offense, the pleas and defenses which may be available, [and] the punishments which may be exacted. (Ibid. [citing In re Johnson (1965) 62 Cal.2d 325, 335 [42 Cal.Rptr. 228]; In re Tahl (1969) 1 Cal.3d 122, 132 [81 Cal.Rptr. 577]].) In particular, the court reasoned that, in view of the unusual and onerous nature of the sex registration requirement that follows inexorably from a conviction under section 647, subdivision (a), the trial courts duty surely included an obligation to advise petitioner of this sanction prior to accepting his guilty plea. (Id. at p. 321.) Although the stigma of a short jail sentence should eventually fade, the ignominious badge carried by the convicted sex offender can remain for a lifetime. (Id. at p. 321-322.) Subsequent cases have distinguished Birch as applying only to direct consequences, rather than collateral consequences. In People v. Zaidi, the court reaffirmed the duty to advise regarding registration, noting that it found additional support for our conclusion in case law holding that a restrictive lifelong consequence or obligation is a direct consequence of the plea, and that a court must advise of the lifetime element. (147 Cal.App. at p. 1483.) Accordingly, consequences which are deemed collateral, or temporary, do not carry with them the duty to advise nor the explicit waiver requirements. (See People v. Barella (1999) 20 Cal.4th 261 [84 Cal.Rptr.2d 248] [no duty to inform defendant of the theoretical minimum portion of a sentence that will have to be served in custody]; Ganyo v. Municipal Court (1978) 80 Cal.App.3d 522, 527 fn. 1 [145 Cal.Rptr. 636] [no requirement that a defendant be advised of the increased minimum sentence he would receive automatically for a later conviction.]. The Court of Appeal in Ganyo v. Municipal Court made clear that the Birch ruling does not extend to all misdemeanor offenses. In that case, the defendant moved to strike a prior conviction on the grounds that she had not been aware that it would subject her to enhanced punishment in a second or subsequent violation. (80 Cal.App.3d at p. 525.) The Court held that docket entries recorded in the clerks handwriting as yes or no answers to specific questions do constitute an express and explicit waiver by the defendant. (Id. at p. 529.) If the answers had been taken down by a court reporter and transcribed or if they had been contained in a signed waiver there could be no question that they would be classified as express and explicit. Thus, it appears the objection really goes to the method of recording the answers rather than the answers themselves and, as we have seen, a docket entry is still an acceptable, though not the most desirable, method of recording such advisements and waivers. We conclude that the record is sufficient to demonstrate an express advisement and waiver of the Tahl-Mills constitutional rights. (Id. at p. 529-530.) The court in Ganyo noted that Mills v. Municipal Court (1973) 10 Cal.3d 288 [110 Cal.Rptr. 329], specifically approved deviations from the Tahl requirements in cases involving misdemeanors, including group advisement of rights and written waivers and entry of written pleas of guilty by defendants who do not appear. Moreover, the court in Mills, as have other cases, implicitly recognized the continuing necessity for and viability of the use of docket entries to record the advisement and waiver. (Ganyo v. Municipal Court, supra, 80 Cal.App.3d at p. 529.) Though the Ganyo ruling is in some tension with that in Birch, the two opinions are best read as standing for the proposition that, when a conviction has direct and lifelong adverse consequences, a docket entry will be an insufficient substitute for a waiver on the record.