Opinion
C087165
11-04-2019
THE PEOPLE, Plaintiff and Respondent, v. RENE MUNOZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF16-1003)
Following a court trial, defendant Rene Munoz was found guilty of 79 counts of inappropriate sexual conduct involving a minor, including one count of forcible sexual penetration and 17 counts of forcible rape by means of duress. The trial court sentenced defendant to an aggregate term of 183 years four months.
On appeal, defendant argues his convictions for forcible penetration and forcible rape by means of duress must be reversed because there was insufficient evidence of duress. He also argues the judgment must be reversed because he did not knowingly and intelligently waive his right to a jury trial.
We reject defendant's contentions, but we do note a discrepancy between the trial court's oral pronouncement of judgment and the abstract. In particular, the court's pronouncement of judgment shows defendant was convicted of 21 counts of unlawful sexual intercourse under Penal Code section 261.5, subdivision (d), and 21 counts of lewd or lascivious acts under section 288, subdivision (c)(1). However, the abstract shows defendant was convicted of 22 counts of lewd or lascivious acts under section 288, subdivision (c)(1), and only 20 counts of unlawful sexual intercourse under section 261.5, subdivision (d). Although this error did not affect the calculation of defendant's total prison term, it nevertheless requires correction. Thus, we shall order that the abstract of judgment be corrected and otherwise affirm the judgment.
Further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
The victim, G.G., first met defendant when she was 12 years old and defendant was approximately 27 years old. Defendant was a friend of G.G.'s stepfather. Defendant's girlfriend, Leticia, was a friend of G.G.'s mother. G.G.'s family and defendant's family were friends and socialized with each other. Early on, G.G. considered defendant to be "trustworthy," and defendant would give G.G. advice about family and friends. G.G. sometimes watched defendant's children and they spent time at each other's homes.
The summer before G.G.'s freshman year of high school, when G.G. was 14 years old and defendant was approximately 29 years old, defendant began sending G.G. sexual text messages. Defendant told G.G. that he had feelings for her but felt weird about it because she was younger. Although G.G. told defendant that it was wrong for him to have those feelings, they soon began texting each other daily. Many of the texts were sexual in nature. At the time, G.G. had a boyfriend, but she was still a virgin. In one of his messages, defendant told G.G. that "having sex with an experienced person is better than having sex with a virgin."
On the day after Thanksgiving during G.G.'s freshman year, defendant invited G.G. to his house and told her that his family would not be there. G.G. was confused, but flattered. She agreed to go to defendant's house because she wanted to lose her virginity to him. When G.G. arrived, defendant took her to his bedroom and he had vaginal intercourse with her. G.G. did not tell anyone about the encounter because she was embarrassed and did not want anyone to know.
Over the remainder of G.G.'s freshman year, defendant had vaginal intercourse with G.G. approximately once a month either at his home or hers. During her sophomore year, defendant had vaginal intercourse with G.G. two or three times a week. At times, defendant had anal intercourse with G.G. On a few occasions, defendant recorded them having sex.
During G.G.'s sophomore year, defendant told G.G. that he fantasized about having intercourse with two women at once. G.G. persuaded her friend and classmate, J.C., who was 16, to join her and defendant at a hotel in Davis, where defendant had sexual intercourse with both G.G. and J.C. Afterward, defendant gave $200 each to G.G. and J.C.
Defendant and G.G. had a second threesome with a different underaged girl during G.G.'s junior year.
During her freshman and sophomore years, G.G. was happy in her relationship with defendant. Defendant gave her gifts and money and took her to the movies and on dates. G.G. enjoyed the attention and liked how defendant made her feel.
By the beginning of her junior year, G.G. no longer wanted to be in a relationship with defendant. G.G. wanted to spend time with friends from school, but defendant discouraged her from doing so. G.G. told defendant several times that she did not want to be with him anymore. G.G. stopped responding to some of defendant's text messages. However, defendant continued sending G.G. text messages and told her that "if he didn't have [her], nobody was going to have [her]." Defendant warned G.G. not to go to parties and told her that he would know if she did.
Defendant threatened to hurt G.G. G.G. believed defendant's threats because, on one occasion, defendant choked her, placed a pillow over her face, kissed her forehead, and told her it was the "kiss of death or something." Defendant told G.G. that he could "make it look like an accident, and nobody would know that it was him." Also, defendant told G.G. that he was a leader of a criminal street gang and a member of a cartel. Defendant told her that he had property in Texas where he had bodies buried and that he had visited the leaders of his gang at Folsom State Prison. He specifically told G.G. that he would kill people. Once, when defendant learned that a friend of his named Miguel had been sending text messages to G.G., defendant told G.G. that he would "take him off the map," which G.G interpreted to mean defendant would kill him. G.G. never heard from Miguel again and defendant made G.G. believe that Miguel was dead.
Defendant also threatened to hurt himself. G.G. was concerned that defendant's children would be without a father if defendant killed himself.
Many times during G.G.'s junior year she suspected defendant was following her. In one instance, defendant sent her a text message indicating that he had seen her walking to her car with a boy. G.G. did not see defendant and was scared because she did not know where he was hiding.
Although defendant's threats scared G.G., she did not tell anyone, both because she felt there was no one to tell and also because she knew it would lead to a court proceeding. G.G. just wanted to move on with her life without defendant, but knew she "couldn't get away from him." Defendant's threats caused G.G. to stay in the relationship and continue having sex with defendant. During her junior year, G.G. had sex with defendant about two or three times a week. G.G. would meet defendant and have sex with him even after telling him that she did not want to have sex.
G.G. never explicitly said to defendant, "[S]top, I don't want to have sex, I'm not consenting anymore." She was afraid to tell defendant that she did not want to have sex with him because he might get upset and he had a "very bad temper." G.G. felt trapped, like she had no choice. When G.G. would tell defendant she no longer wanted to be with him, defendant told her that if he could not have her, no one was going to have her.
In the summer after her junior year, G.G. became pregnant with defendant's child. Defendant told G.G. that he was dealing with "federal time in regards to his gang membership stuff," and said that his lawyer told him to terminate the pregnancy. G.G. did not want an abortion, but defendant took her to obtain one. G.G. developed a pelvic infection from the procedure and told defendant about it. Defendant continued to have vaginal intercourse with G.G. while she had the infection, even though it hurt and she did not want to.
During her senior year, G.G. was "really, really trying to get away from [defendant]." However, defendant would not allow it. Defendant would hit her in the face when G.G. talked back to him or said something he did not like. Defendant would hit her until he was sure she was in pain. Defendant made it "very clear" to G.G. that she had to do what she was told or she "would get hurt, or he would hit [her]." G.G. did not want to continue having sex with defendant, but felt she had no choice. She continued having intercourse with defendant two or three times a month.
The last time that defendant and G.G. had sex was on February 10, 2016. Defendant came to her house, but G.G. told him she did not want to have intercourse because she had an infection. Defendant said they would have anal intercourse. G.G. did not want to do that, but did anyway.
On February 17, 2016, G.G. received a text message from someone claiming to be the girlfriend of one of defendant's friends. The message indicated that defendant "had gotten plastic bags and that he was out to get [G.G.], and that [G.G.] better hide because he was going to come and get [her]." G.G. was very scared and in a panic, believing that defendant was coming to kill her. G.G. did not want to die, so she told her mother and called the police. The following day, defendant was arrested.
As part of the police investigation, G.G. provided her cellular phones to the police. The police recovered over 3,500 texts between defendant and G.G. from her phones. Texts from defendant to G.G. included such messages as: "N if you try to leave well, u don't wanna kno what would happen"; "Cuz u belong to me. [¶] I told you that from tha start. [¶] Tha[t] day I put my dick n u I told u I own u"; "But u took me to[o] far so now ur either gonna b happy or u can decide to go find another guy n I'll juz kill him n cut ur tits off it ur"; "U dont talk to other guys, u don't hv other guys walk u to klass or ur car, when ur friends boyfriend is around u keep ur head down n don't talk to him. U do all that n ur good, u don't n I find out I'll make it so painful for u that u would rather be erased"; "I'm that motherfucker that will take ur life"; "Ur mine, N if I can't hv u I'll take u"; "Ur dead nigga. [¶] U better not let me c u bitch. [¶] Remember how tha[t] pillow felt. [¶] I'll make sure it's worse so u feel pain like no other"; and "U will feel pain. [¶] Ur dead bitch." (Sic.)
The Defense
Defendant testified on his own behalf at trial. Defendant admitted having vaginal, oral, and anal intercourse with G.G. between 2012 and 2016. He knew it was illegal and claimed it was a "[m]istake." But, according to defendant, G.G. was the aggressor and he was the victim. Defendant claimed that G.G. controlled the relationship by threatening to tell his family or call the police if defendant did not do what she wanted. Defendant claimed that G.G. never asked to break off the relationship or to stop having sex. Defendant claimed that he tried to end the relationship, but because of G.G.'s threats, he felt he had no choice but to continue to be with her.
Defendant denied ever putting a pillow over G.G.'s face, choking her, hitting her, or otherwise physically abusing her. Defendant denied that he is in a gang. As for his threatening texts, defendant claimed he was "role playing" based on the television show Gangland, which he said "excited" G.G. Defendant claimed that G.G. was upset on the morning she called the police because G.G. had asked him to leave with her and he told her that he was not going to leave his family.
G.G. denied that defendant's "tough guy" persona was merely role playing.
Verdict and Sentencing
After a court trial, the trial court found defendant guilty of 79 of the 82 charges against him. The trial court found defendant guilty of one count of forcible sexual penetration of a minor by means of duress (§ 289, subd. (a)(1)(C)); one count of sodomy with a minor (§ 286, subd. (b)(1)); 17 counts of forcible rape of a minor 14 years of age or older by means of duress (§§ 261, subd. (a)(2), 264, subd. (c)(2)); 17 counts of unlawful sexual intercourse with a minor more than three years younger than the perpetrator (§ 261.5, subd. (c)); 21 counts of unlawful sexual intercourse with a minor under 16 years of age when the perpetrator is 21 years of age or older (§ 261.5, subd. (d)); 21 counts of committing lewd or lascivious acts on a child 14 or 15 years of age (§ 288, subd. (c)(1)); and one count of possession of child pornography (§ 311.11, subd. (a)). The trial court sentenced defendant to a total prison term of 183 years four months.
Pursuant to section 1170.1, the court imposed the midterm of nine years for defendant's conviction of forcible rape of a minor (§ 261, subd. (a)(2)) in count 3 as the principal term; a consecutive term of eight months (one-third the midterm) for his conviction of sodomy with a person under 18 years of age (§ 286, subd. (b)(1)) in count 2; 21 consecutive terms of one year each (one-third the midterm) for his convictions of unlawful sexual intercourse when the minor was under 16 years of age and the defendant was 21 years of age or older (§ 261.5, subd. (d)) in counts 40, 42, 44, 46, 48, 50, 52, 54, 56, 58, 60, 62, 64, 67, 69, 71, 73, 75, 77, 79, and 81; and a consecutive term of eight months (one-third the midterm) for his conviction of possession of child pornography (§ 311.11, subd. (a)) in count 66. In addition, pursuant to section 667.6, subdivisions (d) and (e)(8), the court imposed one fully consecutive term of eight years for defendant's conviction of forcible sexual penetration of a minor (§ 289, subd. (a)(1)(C)) in count 1; and 16 consecutive terms of nine years each for defendant's convictions of forcible rape of a minor (§ 261, subd. (a)(2)) in counts 5, 7, 9, 11, 13, 15, 19, 21, 23, 25, 27, 29, 31, 33, 35, and 37. Pursuant to section 654, the court stayed imposition of two-year midterms for each of defendant's 17 convictions of unlawful sexual intercourse when the minor was more than three years younger than the defendant (§ 261.5, subd. (c)) in counts 4, 6, 8, 10, 12, 14, 16, 20, 22, 24, 26, 28, 30, 32, 34, 36, and 38; and each of defendant's 21 convictions of lewd or lascivious acts upon a child 14 or 15 years of age (§ 288, subd. (c)(1)) in counts 41, 43, 45, 47, 49, 51, 53, 55, 57, 59, 61, 63, 65, 68, 70, 72, 74, 76, 78, 80, and 82.
DISCUSSION
I
Sufficiency of the Evidence
The trial court convicted defendant of one count of forcible sexual penetration of a minor (§ 289, subd. (a)(1)(C)) and 17 counts of forcible rape (§ 261, subd. (a)(2)) for conduct occurring during G.G.'s junior and senior years of high school. Defendant contends there was insufficient evidence to support these convictions. We disagree.
When considering a challenge to the sufficiency of the evidence, we review the entire record to see whether it contains substantial evidence from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Cochran (2002) 103 Cal.App.4th 8, 12-13 (Cochran), overruled in part on other grounds as stated in People v. Soto (2011) 51 Cal.4th 229, 248.) We view the facts in the light most favorable to the judgment, resolving all conflicts in the evidence and drawing all reasonable inferences in support of the trier of fact's determination. (Cochran, at p. 13; People v. Honig (1996) 48 Cal.App.4th 289, 350.) We do not reweigh the evidence or reevaluate the credibility of witnesses. (Cochran, at p. 13.) The test on appeal is not whether we believe the evidence establishes the defendant's guilt beyond a reasonable doubt, but whether, viewing the evidence in the light most favorable to the prosecution, " ' " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " ' " (Ibid.) A judgment will be reversed only if there is no substantial evidence to support the verdict under any hypothesis. (People v. Bolin (1998) 18 Cal.4th 297, 331.) Given our limited role on appeal, the defendant bears an "enormous burden" in claiming there is insufficient evidence to sustain his convictions. (People v. Veale (2008) 160 Cal.App.4th 40, 46.)
Both offenses at issue here—forcible rape and forcible sexual penetration of a minor—require proof that the criminal act was accomplished "against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury . . . ." (§§ 261, subd. (a)(2), 289, subd. (a)(1)(C).) The People's theory at trial was that defendant committed these offenses through duress and, when the trial court returned its verdicts, it relied on a finding of duress.
Section 261, subdivision (a)(2) defines forcible rape as an "act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under . . . circumstances: [¶] . . . [¶] (2) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." (§ 261, subd. (a)(2).)
Section 289, subdivision (a)(1)(C) defines forcible sexual penetration of a minor as "an act of sexual penetration upon a minor who is 14 years of age or older, when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person . . . ." (§ 289, subd. (a)(1)(C).)
Duress, for forcible penetration, means " 'a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which [he or she] would not otherwise have performed, or acquiesce in an act to which [he or she] otherwise would not have submitted.' " (People v. King (2010) 183 Cal.App.4th 1281, 1320; see also Cochran, supra, 103 Cal.App.4th at p. 13.) The statutory definition of duress for forcible rape is virtually identical except that it excludes "hardship." (§ 261, subd. (b); People v. Leal (2004) 33 Cal.4th 999, 1007.)
In determining whether there was duress, we consider the totality of the circumstances, including, among other factors, the age and size of the victim relative to the defendant, the victim's relationship to the defendant, whether the defendant threatened to harm the victim or the victim's family, whether the defendant physically controlled the victim, and whether the defendant sought to intimidate and exert psychological control over the victim. (Cochran, supra, 103 Cal.App.4th at pp. 13-16; People v. Veale, supra, 160 Cal.App.4th at p. 46; People v. Senior (1992) 3 Cal.App.4th 765, 775.)
Here, we conclude there was sufficient evidence of duress to support the convictions for forcible rape and forcible sexual penetration.
First, at the time these crimes were committed, G.G. was only 16 or 17 years of age. Defendant, in contrast, was an adult authority figure, approximately twice her age.
Second, defendant had a familial-like relationship with her. G.G. viewed defendant as a trusted family friend who gave her advice. Although defendant and G.G. were not related, a reasonable trier of fact could conclude that they had something akin to an uncle-niece relationship.
Third, defendant used his position as an adult authority figure to psychologically influence and control G.G. Defendant built G.G.'s trust by giving her gifts and money and taking her to the movies and on dates. At the same time, defendant sought to intimidate her and isolate her from her friends. Defendant warned G.G. not to go to parties and told her that he would know if she did. He impressed upon her that he had "eyes on [her] everywhere." There were many occasions during G.G.'s junior year where G.G. suspected defendant was following her, and in one instance, defendant sent her a text message indicating that he had seen her walking to her car with a boy.
Fourth, defendant repeatedly threatened G.G. with physical harm to induce her to stay in the relationship and continue having intercourse with him. When G.G. tried to leave defendant, he threatened to hurt her and told her that "if he didn't have [her], nobody was going to have [her]." Defendant also sent G.G. numerous threatening text messages, such as: "Cuz u belong to me. [¶] I told you that from tha start. [¶] Tha[t] day I put my dick n u I told u I own u"; "N if you try to leave well, u don't wanna kno what would happen"; and, "I'm that motherfucker that will take ur life." (Sic.) He legitimized his threats by convincing G.G. that he was part of a criminal street gang and a member of a drug cartel. He convinced G.G. that he had killed people, including a friend named Miguel who had sent text messages to G.G. and then suddenly stopped.
Fifth, defendant used violence to control G.G. On one occasion, defendant choked G.G., placed a pillow over her face, kissed her forehead, and told her it was the "kiss of death or something." Defendant hit her when she talked back to him or said something he did not like. Defendant made it "very clear" to G.G. that she had to do what she was told or she "would get hurt."
Defendant's violent and threatening behavior scared G.G. G.G. said that defendant's threats caused her to stay in the relationship and continue having sex with defendant even though she did not want to. She felt trapped, as if she had no choice. Based on this evidence, the trier of fact could reasonably conclude defendant committed the crimes of forcible rape and forcible penetration of a minor by means of duress.
Defendant argues that the evidence was insufficient to support duress because a reasonable 16- or 17-year-old teenage girl in G.G.'s situation would have reacted to defendant's threats and violence by calling the police. Defendant argues that G.G. admitted she could have, and should have, called the police earlier than she did; that she never expressly told defendant she was not consenting to intercourse with him; and that G.G. explained that part of the reason she did not want to call the police or tell anyone was because she did not want to end up in a courtroom.
However, the definition of duress is objective in nature and not dependent on how the particular victim subjectively perceived or responded to the defendant's behavior. (People v. Soto, supra, 51 Cal.4th at p. 246.) The focus is on the defendant's wrongful act, not the victim's response to it. (Ibid.) The relevant question here is not whether G.G. acted reasonably, but whether a reasonable trier of fact could have concluded, based on the totality of the circumstances, that defendant's threats were sufficient to coerce a reasonable person of ordinary susceptibilities to perform or acquiesce in the sexual acts. Viewing the evidence in the light most favorable to the judgment, and drawing all reasonable inferences in its support, we conclude that there was sufficient evidence to establish duress.
II
Jury Trial Waiver
Defendant contends the judgment against him must be reversed because he did not knowingly and intelligently waive his right to a jury trial. Defendant's argument lacks merit.
A. Additional Background
At the trial readiness conference, defendant's counsel indicated that defendant was willing to waive his right to a jury trial and proceed instead by court trial. The following exchange occurred:
"THE COURT: So we chatted at bench with counsel, and it looks like counsel are ready to confirm the matter for trial starting on Tuesday. It's noted here as February 12th, but that's an error. February 12th is a court holiday, so we're really talking about February 13th, Tuesday. [¶] And counsel indicated that they're opting for a Court trial. [¶] Is that the People's wish?
"[PROSECUTOR]: People would be willing to waive jury trial.
"THE COURT: And, [defense counsel], is that your wish?
"[DEFENSE COUNSEL]: It's [defendant's] wish to waive that constitutional right.
"THE COURT: [Defendant], you do have the right to have this case tried by a jury. [¶] Did you discuss that with your lawyer?
"[DEFENDANT]: I did.
"THE COURT: And understanding your right to have the case tried to a jury, you wish to waive that right and have the case tried by the Court?
"[DEFENDANT]: I do.
"THE COURT: And you agree, [defense counsel]?
"[DEFENSE COUNSEL]: Yes, your Honor, I concur.
"THE COURT: The Court will accept the waiver from [defendant] and counsel. This will be a Court trial. Jury trial is waived."
B. Analysis
The constitutional right to a jury trial "may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant's counsel." (Cal. Const., art. I, § 16; People v. Sivongxxay (2017) 3 Cal.5th 151, 166, 168, fn. 3 (Sivongxxay).) A defendant's waiver of the right to a 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," ' " as well as voluntary " ' "in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception." ' " ' " (Sivongxxay, at p. 166.)
Here, defendant acknowledges that he expressly agreed to waive his constitutional right to a jury trial, and he makes no claim that his waiver was the product of intimidation, coercion, or deception. Instead, defendant claims his waiver was not knowing and intelligent because the trial court did not adequately advise him of the nature of the jury trial right and the consequences of forgoing that right. We are not persuaded.
Although our Supreme Court has acknowledged "the value of a robust oral colloquy," and provided "general guidance" to help ensure a jury trial waiver is knowing and intelligent, the court has been careful to emphasize that its guidance is merely "advisory." (Sivongxxay, supra, 3 Cal.5th at pp. 169-170.) The Supreme Court has consistently "eschewed any rigid formula or particular form of words that a trial court must use" to ensure that a jury trial waiver is knowing and intelligent. (Id. at p. 169.) While it may be better practice for the trial court to advise the defendant of basic jury mechanics in a waiver colloquy, a trial court's failure to do so will not necessarily render the waiver ineffective. (Id. at pp. 170, 189 & fn. 18; see also United States v. Williams (7th Cir. 2009) 559 F.3d 607, 610.) A valid waiver depends not on whether specific admonitions were given but whether the record affirmatively shows, based on the totality of the circumstances, that the defendant's waiver was knowing and intelligent. (Sivongxxay, at pp. 167, 189.) We independently examine the record to determine whether this standard has been met. (People v. Burgener (2009) 46 Cal.4th 231, 241; People v. Doolin (2009) 45 Cal.4th 390, 453.)
The court offered the following guidance: "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. 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." (Sivongxxay, supra, 3 Cal.5th at pp. 169-170.)
The record shows that defendant knowingly and intelligently waived his right to a jury trial. Defendant was represented by counsel, was aware of his right to a jury trial, discussed that right with his counsel, and then requested a court trial. Although the trial court did not explain the basic mechanics of a jury trial, the trial court advised defendant that he had a constitutional right to have his case tried by a jury and explained that if defendant waived that right, his case would be tried by the court. The court specifically asked if defendant discussed the right to a jury trial with his counsel and defendant confirmed that he had. There is nothing in the record to suggest that defense counsel acted incompetently in advising defendant regarding the waiver of that right. Nor is there anything to suggest that defendant was confused about his right to a jury trial, about the consequences of his waiver of that right, or the mechanics of his ensuing court trial.
That defendant has no prior experience with the criminal justice system, while relevant, does not compel a different result.
Jury trial waivers are routinely upheld where, as here, a defendant was represented by counsel and specifically discussed the jury trial waiver with counsel. (See People v. Doyle (2016) 19 Cal.App.5th 946, 952-954, review dism., Jan. 31, 2018, S238666 (Doyle); People v. Castaneda (1975) 52 Cal.App.3d 334, 344-345; People v. Acosta (1971) 18 Cal.App.3d 895, 901-902, 906; People v. Evanson (1968) 265 Cal.App.2d 698, 700-702; see also People v. Daniels (2017) 3 Cal.5th 961 (Daniels); People v. Tijerina (1969) 1 Cal.3d 41, 46; People v. Lookadoo (1967) 66 Cal.2d 307, 311-313; cf. People v. Blancett (2017) 15 Cal.App.5th 1200, 1206-1207 [no valid waiver where counsel appointed moments before the waiver with no indication the defendant had an opportunity to discuss the decision with his attorney].) These cases reinforce the "important principle" that 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. (Daniels, at p. 999 (conc. & dis. opn. of Cuéllar, J.).)
Dissenting from dismissal of review in Doyle, Justice Liu commented that while the Supreme Court's decision in People v. Langdon (1959) 52 Cal.2d 425 has not been disapproved, its rule "that a jury trial waiver by a defendant with counsel is presumed to be knowing and intelligent . . . has fallen into desuetude." (Doyle, supra, 19 Cal.App.5th at p. 957 (dis. opn. of Liu, J.).) We need not address this issue because our ruling is not based merely on the fact that defendant was represented by counsel. Rather, it is based on affirmative statements that defendant was aware of the jury trial right and specifically discussed waiving that right with his counsel.
In Daniels, supra, 3 Cal.5th 961, in a plurality opinion, our Supreme Court upheld a self-represented defendant's waiver of his right to a jury trial of the guilt phase in his capital case where the trial court advised the defendant that if he waived jury trial, the court alone would decide the question of guilt, even though the defendant was not represented by counsel; the court did not give any of the other admonitions recommended in Sivongxxay; and the court did not ask the defendant whether he understood the nature of the right he was waiving or confirm that the defendant had received such information elsewhere. (Id. at pp. 986-989 (conc. & dis. opn. of Cuéllar, J.); id. at pp. 1029-1030 (conc. & dis. opn. of Kruger, J.); id. at p. 1028 (conc. & dis. opn. of Corrigan, J.).) A different four-to-three majority found the defendant's waiver constitutionally invalid as to the penalty phase. (Id. at pp. 1002-1006 (conc. & dis. opn. of Cuéllar, J.); id. at p. 1030 (conc. & dis. opn. of Kruger, J.).) Because there is no majority opinion in Daniels, the case lacks authority as precedent. (Board of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 918.) --------
Relying on People v. Jones (2018) 26 Cal.App.5th 420, defendant argues that the record of his pretrial waiver is too "sparse" to affirmatively show a knowing and intelligent waiver. We find Jones distinguishable. In Jones, the waiver inquiry was limited to the prosecutor asking the defendant whether she understood her right to a jury trial and agreed to waive it. (Jones, at p. 428.) Although the defendant's attorney joined in the defendant's waiver, the trial court neither explained the nature of the right to a jury trial or inquired whether the defendant had discussed the jury trial right with her attorney. (Id. at pp. 429, 436.) Under these circumstances, the court concluded that the defendant's "bare acknowledgment that she understood her right to a jury trial was inadequate." (Id. at p. 436.)
Here, in contrast, the court specifically asked defendant if he discussed his jury trial right with counsel, and defendant confirmed that he had. We presume that defense counsel performed his duty and adequately informed defendant of his legal rights. (Doyle, supra, 19 Cal.App.5th at p. 959, citing People v. Robertson (1989) 48 Cal.3d 18, 36; see also People v. Thomas (1974) 43 Cal.App.3d 862, 868; Bus. & Prof. Code, § 6068.) In addition, the trial court asked defendant whether, having spoken to his attorney, he understood his jury trial rights and wished to waive them. Defendant confirmed he did. Thus, unlike Jones, the record in this case affirmatively shows that defendant provided a knowing and intelligent waiver of his right to a jury trial.
III
Correction of Abstract of Judgment
The trial court's oral pronouncement of judgment shows that defendant was convicted of 21 counts of unlawful sexual intercourse with a minor under 16 years of age when the perpetrator is 21 years of age or older (§ 261.5, subd. (d)) and 21 counts of committing lewd or lascivious acts on a child 14 or 15 years of age (§ 288, subd. (c)(1)). In reviewing the abstract of judgment, however, we discovered that the abstract shows convictions for 22 counts of lewd or lascivious acts under section 288, subdivision (c)(1), and only 20 counts of unlawful sexual intercourse under section 261.5, subdivision (d). This appears to be the result of a typographical error incorrectly listing count 77, a violation of section 261.5, subdivision (d), as a violation of section 288, subdivision (c)(1).
Although the abstract misidentifies count 77 as a violation of section 288, subdivision (c)(1), the error did not affect the calculation of defendant's total prison term of 183 years four months. Nevertheless, because the abstract of judgment differs from the oral pronouncement of judgment, we conclude the abstract must be corrected to reflect that count 77 was a conviction for unlawful intercourse with a minor under section 261.5, subdivision (d), and not a conviction for lewd or lascivious acts under section 288, subdivision (c)(1). (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The trial court is directed to prepare a corrected abstract of judgment in accordance with this opinion and to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
KRAUSE, J. We concur: MURRAY, Acting P. J. HOCH, J.