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Court of Appeal, First District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. William ERNST, Defendant and Appellant. IN RE: William ERNST on Habeas Corpus.

Nos. A052133, A055017.

Decided: November 24, 1992

Michael B. McPartland, under appointment by the Court of Appeal, Petaluma, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Thomas A. Brady and Sharon G. Birenbaum, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Appellant William Ernst was charged by information with the following:  in counts I and II, vehicular manslaughter (Pen.Code[FN1] , § 191.5);  in count III, driving while under the influence of an alcoholic beverage with bodily injury (Veh.Code, § 23153, subd. (a));  in count IV, driving with .10 percent or more blood-alcohol level with bodily injury (Veh.Code, § 23153, subd. (b)), and in counts V and VI, murder (§ 187).   As to all but the murder counts, the information alleged Ernst proximately caused injury and death to more than one victim in violation of Vehicle Code section 23182.   In connection with counts III and IV, it was alleged that within seven years of the commission of the instant offense, Ernst was convicted of driving with .10 percent or more blood-alcohol level in violation of Vehicle Code section 23152, subdivision (b).

Ernst entered a plea of not guilty and denied all allegations in the information.   He later changed his plea to not guilty and not guilty by reason of insanity.   In the court trial which followed, the evidence showed that Ernst, with two passengers, was driving a station wagon at 11 p.m. on Santa Rosa city streets at an excessive rate of speed.   At the intersection of Yulupa and Sonoma Avenues, Ernst went through a red light and collided with another vehicle, killing the occupants Jonathan Potenza and Lisa Rodriguez.   The passengers in Ernst's vehicle suffered serious injuries.   Ernst's blood-alcohol level one hour after the collision was .20 percent.

Ernst was found guilty of two counts of second degree murder, one count of driving while under the influence of an alcoholic beverage with bodily injury, and one count of driving with .10 percent or more blood-alcohol level with bodily injury.   The court made no findings on counts I and II, having determined that vehicular manslaughter is a lesser included offense of murder.   In the separate sanity trial which followed, the court found Ernst sane at the time of the offenses.

Ernst was sentenced to 15 years to life on both second degree murder counts with the sentence on count VI to run concurrently with the sentence on count V.   The court also sentenced him to two years for the driving under the influence conviction and to a one-year enhancement under Vehicle Code section 23182, to run concurrently to the sentence on count V.   The sentence on count IV for driving with .10 percent or more blood alcohol level was stayed pursuant to section 654.   Ernst's appeal has been consolidated with his petition for writ of habeas corpus.   We have determined the judgment must be reversed based on the inadequate waiver of his right to a jury trial.


In light of the focus of our decision, we present only those facts bearing upon the issue at hand.   The record shows that at an October 5, 1990, pretrial confirmation proceeding defense counsel stated:  “[W]e're prepared to waive a jury as to both phases of the trial at this time, and my client is prepared to go on the record to that effect.”   The People responded that they were not “prepared to waive jury at this time.”   The trial court stated:  “Then there's no sense taking his waiver if both sides aren't going to waive.   I'll go ahead and confirm the matter for trial for the 15th at 8:45 in Department 6.”   Ernst's on-the-record waiver was not made at the October 5, 1990, proceeding.

On October 15, 1990, on the master calendar, the People informed the court that both sides are ready and that “[t]here is a waiver.”   Defense counsel confirmed:  “We are prepared to waive jury as to both issues.”   The trial court did not take Ernst's express waiver of his right to jury trial at this proceeding.

On October 17, 1990, the first day of trial, the People stated:  “[Defense counsel] indicated there was to be a jury waiver by his client.   In the event that happens, we're also prepared to waive jury.”   The trial court asked:  “Shall we do that?”   Defense counsel replied:  “Do we do that again?   We did it on Master Calendar.”   The People responded:  “Did you?   I wasn't there.”   The court then appeared to check records from the master calendar proceeding.   Defense counsel offered:  “We're prepared to reiterate.”   The court stated:  “Jury waived by both sides.   It's been done.  [¶]  Is this going as a nonjury case?”   Counsel for both sides responded affirmatively.   The case proceeded to a court trial without an express waiver of jury trial by Ernst.


 Article I, section 16 of the California Constitution provides in relevant part:  “A jury 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.”  (Emphasis added.)   Waiver by counsel is insufficient, there must be an express waiver on the record.  (In re Tahl (1969) 1 Cal.3d 122, 131–132, 81 Cal.Rptr. 577, 460 P.2d 449.)   In order for there to have been an effective waiver of a jury trial in favor of a court trial, the waiver must be personal, voluntary and intelligent.  (People v. Castaneda (1975) 52 Cal.App.3d 334, 344, 125 Cal.Rptr. 9.)   While there is no precise formula for determining the effectiveness of the waiver (ibid.), the method of waiver prescribed by our state constitutional provision must be strictly followed.  (People v. Crouch (1963) 218 Cal.App.2d 157, 158, 32 Cal.Rptr. 141.)   It is apparent from the record before us that Ernst at no time expressly waived his right to a jury trial.   Furthermore, the People acknowledge that their search of the trial court's record discloses no express waiver.

While the People concede error in the trial court's failure to obtain an express waiver, they maintain the knowing and voluntary nature of Ernst's waiver may be gleaned from the record as a whole.   Similar arguments have repeatedly been rejected by our courts.  (See In re Tahl, supra, 1 Cal.3d at p. 131, 81 Cal.Rptr. 577, 460 P.2d 449 [waiver not implied by defendant's conduct];  People v. Holmes (1960) 54 Cal.2d 442, 443–444, 5 Cal.Rptr. 871, 353 P.2d 583 [importance of jury trial right precludes waiver by implication];  People v. Walker (1959) 170 Cal.App.2d 159, 166, 338 P.2d 536 [waiver not implied from defendant's failure to object during court trial].)

The rationale for strict construction of this state constitutional requirement is clear:  “If the waiver were left to implication from conduct, there would be a danger of misinterpretation with respect to a right the importance of which requires there be certainty.   Moreover, appellate courts would be faced with the burdensome task of determining whether the facts of the particular case warrant such an implication, whereas trial courts, without any difficulty, can eliminate doubt and safeguard the rights of both the defendant and the People by obtaining express statements from the defendant, from his attorney, and from the prosecuting attorney not merely as to whether a trial by jury is desired but specifically that a jury is or is not waived.”  (People v. Holmes, supra, 54 Cal.2d at p. 444, 5 Cal.Rptr. 871, 353 P.2d 583.)

The People urge the omission does not require reversal.   Relying on People v. Howard (1992) 1 Cal.4th 1132, 5 Cal.Rptr.2d 268, 824 P.2d 1315, the People argue that the effectiveness of the jury trial waiver in this case should be analyzed under federal constitutional standards.   In Howard, our Supreme Court held that error in Boykin/Tahl admonitions and waivers with respect to the admission of a prior prison term (see In re Yurko (1974) 10 Cal.3d 857, 863–864, 112 Cal.Rptr. 513, 519 P.2d 561), no longer required reversal per se.   The court analyzed that the Yurko decision was based on interpretations of federal law contained in Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 and In re Tahl, supra, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449 and that the “weight of authority no longer supports the proposition that the federal Constitution requires reversal when the trial court has failed to give explicit admonitions on each of the so-called Boykin rights.”  (People v. Howard, supra, 1 Cal.4th at p. 1175, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)   Reasoning that the effectiveness of the waiver of a federal constitutional right is governed by federal constitutional standards, the Howard court held that “Yurko error involving Boykin/Tahl admonitions should [now] be reviewed under the test used to determine the validity of guilty pleas under the federal Constitution.   Under that test, a plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.   [Citations.]”  (Ibid.)

 We do not agree with the People that a totality-of-the-circumstances standard of review should be applied in this case.   Unlike the admonition and waiver of Boykin rights involved in Howard, our state Constitution specifically provides for an express waiver of a right to a jury trial.   Federal constitutional standards are not determinative of the effectiveness of a defendant's jury trial waiver under California Constitution, article I, section 16.  (See Raven v. Deukmejian (1990) 52 Cal.3d 336, 352–353, 276 Cal.Rptr. 326, 801 P.2d 1077 [holding independent state constitutional construction retains vitality].)   Furthermore, our courts have consistently applied a reversible per se standard for defective jury trial waivers in violation of our state Constitution.  (See People v. Lang (1989) 49 Cal.3d 991, 1028–1029, 264 Cal.Rptr. 386, 782 P.2d 627;  People v. Holmes, supra, 54 Cal.2d at p. 444, 5 Cal.Rptr. 871, 353 P.2d 583;  People v. Crouch (1963) 218 Cal.App.2d 157, 160, 32 Cal.Rptr. 141;  People v. Walker, supra, 170 Cal.App.2d at p. 166, 338 P.2d 536.)

 Even if we were to analyze the omission under federal constitutional standards and apply a harmless-beyond-a-reasonable-doubt standard of review, as the People apparently urge, the judgment must still be reversed.   The record does not otherwise affirmatively indicate Ernst's personal acquiescence to the waiver of his right to a jury trial.   The People contend that Ernst's failure to raise a protest to the trial court or move for new trial demonstrates that he waived jury trial.   We disagree.   The record is devoid of any overt expression of Ernst's jury trial waiver.

In view of our reversal based on the lack of an express personal waiver of a jury trial, we do not consider the remaining issues in Ernst's appeal or in his petition for writ of habeas corpus.

The judgment is reversed and the action remanded for a new trial.   The petition for writ of habeas corpus is denied.


1.   All further statutory references are to the Penal Code unless otherwise indicated.

MERRILL, Acting Presiding Justice.

CHIN and WERDEGAR, JJ., concur.