The PEOPLE, Plaintiff and Respondent, v. Vaene SIVONGXXAY, Defendant and Appellant., 219 Cal. Rptr. 3d 265

Cantil-Sakauye, C.J. Following a bench trial, defendant and appellant Vaene Sivongxxay was convicted of one count of first degree murder (Pen. Code, § 187 ), 13 counts of robbery (§§ 211, 212.5), and two counts of attempted robbery (§§ 664, 211, 212.5). The trial court found true the special circumstance allegation that defendant committed the murder during the commission of a robbery. (§ 190.2, subd. (a)(17)(A).) At the conclusion of the penalty phase bench trial, the court imposed a verdict of death. This appeal is automatic. (Cal. Const., art.

VI, § 11, subd. (a); § 1239, subd. (b).) We affirm the judgment in its entirety. I. FACTS Defendant was tried jointly with codefendant Oday Mounsaveng. Both defendants were tried by a judge sitting without a jury. A. Guilt Phase 1. Prosecution Evidence Defendant and Mounsaveng committed a series of robberies in Fresno between July and December 1996. a. Thanh Tin Jewelry Attempted Robbery On July 31, 1996, Mounsaveng walked into the Thanh Tin Jewelry store, asked to examine a gold chain, and then left. He returned with defendant about an hour later. The men looked around for a long time without buying anything.

Liem Phu Huynh, the owner of the jewelry store, asked the men why they were taking so long. Mounsaveng and defendant claimed they were brothers and were waiting for their sister to arrive. Eventually, they left. When defendant and Mounsaveng returned to the store later that afternoon, Huynh was working in a back room, and his wife Phung Ngoc Ho was behind the sales counter. After asking to examine several items, Mounsaveng pulled a handgun out of his waistband, grabbed Ho by the collar, and pointed the gun at her. Huynh, who was watching from the back room, set off an alarm. Mounsaveng and defendant fled. b.

First JMP Mini-Mart Robbery On the afternoon of August 16, 1996, Bobbie Her was working behind the counter at her parents' convenience store, JMP Mini-Mart. Mounsaveng entered and asked whether the store cashed checks. When Bobbie answered that it did, Mounsaveng left. He eventually returned with defendant, and the two men milled about the store. Bobbie's father Xeng Wang Her arrived and began restocking drinks in the store's refrigerator case. Defendant walked up to Xeng, pointed a handgun at him, and forced him to walk toward the cash register.

Defendant then forced Xeng to lie down and kicked him in the back of the head. Meanwhile, Mounsaveng jumped over the counter and forced Bobbie to open the cash register. Mounsaveng and defendant took all of the money in the store, ripped a cordless phone off the wall, and then fled in a blue pickup truck. c. Phnom Penh Jewelry Robbery On October 10, 1996, defendant entered the Phnom Penh Jewelry store. Mounsaveng followed a few minutes later and asked the store's owner, Kee Meng Suy, to repair a Buddha pendant. Suy recognized Mounsaveng because he had brought in the same pendant for repair a few months before.

Suy took the pendant to his workbench in the store's back room. While Suy was working, his wife Suntary Heng showed Mounsaveng some other pieces of jewelry. Suy finished repairing the pendant and handed it back to Mounsaveng, who said he was not satisfied with the work and asked Suy to do it again. Suy returned to his work bench. Heng then took the couple's two young children, who were at the store that day, into the back room to get some food.

At that point, defendant and Mounsaveng forced their way into the back room, pointed guns at Suy's head, and told him to "stay still." Defendant and Mounsaveng punched Suy, pushed him to the floor, and used tape and an extension cord to bind his limbs and cover his mouth and eyes. Both men then punched, kicked, and stomped Suy as Heng and the couple's two children watched. Mounsaveng demanded Suy's gun and the videotape from the store's security camera, but Heng explained he had no gun and the camera was broken. Eventually, Suy lost consciousness.

As Mounsaveng and defendant cleared out the store's safe and the jewelry in its display cases, Heng activated a silent alarm. The two men fled in a light blue Honda. d. Second JMP Mini-Mart Robbery Mounsaveng and defendant returned to the JMP Mini-Mart on December 14, 1996. Xeng Wang Her was working in the store with his wife, Phayvane Boulome, and there were five or six customers inside. Upon entering the store, both Mounsaveng and defendant pulled out guns, told the customers to lie on the ground, and demanded that Xeng and Boulome open the cash register.

Mounsaveng took money from the cash register and also picked up Xeng's gun, which was underneath the counter. Mounsaveng then forced Xeng into a back room, where Mounsaveng took cigarettes and change. After that, Mounsaveng grabbed Boulome and demanded that she open a second cash register, but she explained it was broken. Before leaving, Mounsaveng and defendant took money and jewelry from the customers at gunpoint. In the course of robbing the customers, defendant kicked an elderly woman in the mouth. One customer recalled seeing an unoccupied white car outside the store with its engine running. e.

Sean Hong Jewelry Robbery and Murder In November 1996, defendant sold some rings and other items to the Sean Hong Jewelry store. He also left a Buddha pendant to be repaired. On December 19, 1996, three days after the second JMP Mini-Mart robbery, Mounsaveng and defendant paid a visit to the Sean Hong store. Seak Ang Hor, the wife of store owner Henry Song, was working behind the sales counter. Hor told defendant that his Buddha pendant was ready to be picked up, but he said he did not have the money to pay for it. Mounsaveng asked to see the pendant anyway.

Song retrieved the pendant from a safe in the store's back room and came out to show it to Mounsaveng and defendant. After the men were finished looking at the pendant, Song started walking toward the back room. Mounsaveng pulled out a gun and screamed "give the money and gold." Defendant also brandished a gun. Defendant and Mounsaveng forced Song and Hor into the back room; Mounsaveng then left and closed the door. Defendant demanded that Hor open the safe, but she refused. Song attempted to grab defendant's gun, and the two men engaged in a hand-to-hand struggle.

Mounsaveng returned to the back room and beat Song on the head with his gun. Hor pressed a silent alarm button, prompting Mounsaveng to pull her out of the back room. Once in the front area of the store, Hor kicked the wall in an effort to alert the business owner next door. At some point, she heard Mounsaveng say "let's go." Defendant forced Hor to give him cash from her purse. He also smashed a display case and took jewelry. After Mounsaveng and defendant left, Hor found her husband lying on the floor of the back room with blood coming out of his mouth. Song died within the hour.

The cause of death was perforation of the heart and lungs from three gunshot wounds. Hor did not see either of the robbers shoot her husband, nor did she recall hearing the gunshots. However, the robbery was partially captured on the store's video camera. A Fresno Police Department detective testified that in reviewing a video of the incident, he could identify a moment when several gunshots were audible. At that moment, defendant and Song were not in the camera's frame, but Mounsaveng and Hor were. Mounsaveng was pointing his gun toward the location where defendant and Song were fighting.

After the shots were fired, Mounsaveng moved out of the frame and toward the back room, where defendant and Song had been fighting. Ballistics evidence showed that all of the bullets were fired from the same gun. In the video, one of the defendants is heard to say, "shoot, shoot." Defendant was arrested on February 12, 1997, and agreed to be interviewed by a Fresno Police Department detective. He initially denied involvement in the robberies. However, after the detective showed him stills from the Sean Hong Jewelry store's video camera, defendant admitted he took

part in the robbery. At first, he claimed Mounsaveng was the one who shot Henry Song. Defendant described his struggle with Song and claimed that Song hit him on the head with a chair. But when the detective asked how the struggle ended, defendant confessed that he, not Mounsaveng, had shot Song. He apologized for lying at the outset of the interview and said he was sorry to Song's family for what he had done. Defendant also told the detective that Mounsaveng forced him to rob the Sean Hong Jewelry store and that he was so high on cocaine that day he could hardly think. 2.

Defense Evidence A toxicologist who screened defendant the day after his arrest testified that his blood tested positive for alcohol and cocaine. The manager of an apartment building located near the JMP Mini-Mart (Mini-Mart) testified that on December 14, 1996, the day of the second Mini-Mart robbery, he saw two teenagers running down the street, one of whom had a ponytail. Police later found a stolen white Toyota Camry in the parking lot of the apartment building.

An officer who tested latent fingerprints from the Thanh Tin Jewelry store and the second Mini-Mart robbery testified that none of the prints matched defendant or Mounsaveng. A different officer testified that none of the witnesses to the second Mini-Mart robbery mentioned in their initial interviews that the robbers had tattoos. Finally, defense counsel introduced records indicating that defendant was in prison in Washington State from 1993 until February 1996, which countered Mounsaveng's allegation that defendant was among a group of men who threatened him in December 1995 and January 1996.

In closing argument, defense counsel challenged the eyewitness identifications of his client, suggested that defendant perceived himself to be under imminent threat during his struggle with Song, and asserted that defendant may have been under the influence of drugs or coerced by Mounsaveng. Mounsaveng admitted his role in the robberies but claimed he acted under duress. 3. Trial Court's Findings The trial court found both defendants guilty of first degree murder.

The court also found "beyond a reasonable doubt that the special circumstance against each defendant ha[d] been proven," stating that "[t]here is no doubt that this murder was committed during the commission of the robbery" of the Sean Hong Jewelry store. In addition, the court found both defendants guilty of 13 counts of robbery and two counts of attempted robbery, and it found insufficient evidence to support either defendant's duress defense. B. Penalty Phase 1. Aggravating Evidence a.

Victim Impact Evidence Seak Ang Hor, Henry Song's widow, talked about her husband's life and described how his murder had affected her. Hor and Song had been married for about 30 years and had five children. The family emigrated to the United States in 1981 to escape conflict in Cambodia. At the time of the murder, Song had owned the Sean Hong Jewelry store for about four years. The family's entire life savings was invested in the business, and they had no insurance. Hor closed the jewelry store after her husband's murder. Two of Song's adult children, David and Lilly, also testified.

David described cleaning up the store after the murder. He also testified that everyone in the family now had to work harder to support their mother and youngest brother. Lilly, who had renewed her driver's license on the day of the murder, said that "every time I use my license, it reminds me ... of the pain, that he was killed." She also had to drop out of college because she could not concentrate. b.

Prior Criminal Activity The prosecution introduced evidence of defendant's prior criminal activity involving the use of force. (§ 190.3, factor (b).) On September 8, 1992, defendant and several accomplices broke into a home in Kennewick, Washington, and robbed the inhabitants at gunpoint. Defendant was convicted of first degree robbery and sentenced to 55 months in prison in Washington State. However, he escaped from custody on February 28, 1996. Defendant's girlfriend S. K., with whom defendant lived during the 1996 Fresno robberies, testified that he was violent and abusive.

On September 5, 1996, Fresno police pulled over a vehicle in which defendant was a passenger. A handgun was found inside the car. The vehicle's driver testified that an Asian man carrying a gun had offered him money for a ride and that as the police pulled them over, the Asian man offered him more money to say that the gun was his. However, the driver could not say for sure whether that man was defendant. On January 17, 1997, Ty K., the brother of defendant's girlfriend, called the police because defendant was acting in a drunk and belligerent manner.

Police arrested defendant for unauthorized possession of a firearm, possession of a controlled substance, and vandalism. When awaiting trial for the charged crimes, defendant was detained at the Fresno County Jail. On March 9, 1997, a correctional officer told defendant that he was being placed in isolation due to a fight with another inmate. Defendant became hostile and told the officer, "I see you all the time on the streets, I'll remember you." On May 15, 1997, another correctional officer found among defendant's possessions a piece of metal she described as a "shank." c.

Prior Felony Convictions The prosecution introduced conviction records showing that defendant had 1992 and 1993 Oregon felony convictions for unauthorized use of a vehicle as well as a 1993 Washington State conviction for first degree armed robbery. (§ 190.3, factor (c).) 2. Mitigating Evidence Defendant testified on his own behalf. He was born in Laos, but his family was forced to flee the country after the Communists came to power because his father and brother had fought alongside the United States Army. The family resettled in a refugee camp in Thailand.

Defendant's family was poor, and he received no formal education. He was conscripted into the Thai army for five years. Aside from his stint in the army, defendant lived in the refugee camp until he came to the United States in 1987. When in prison for a prior offense, defendant referred himself to a chemical dependency program.

In his penalty phase closing argument, defendant's counsel emphasized his client's difficult upbringing, his confession and expressions of remorse, and his drug addiction, as well as guilt phase testimony suggesting that defendant shot Song in the course of a struggle for defendant's gun. 3.

Sentencing Before announcing its sentencing decisions, the trial court indicated it had considered, in mitigation, both defendants' difficult backgrounds; defendant's drug addiction and his "request for help with chemical dependence"; his confession and expressions of remorse; and the evidence that he may have "perceived necessity and self-defense" in shooting Song due to the store owner's resistance. In aggravation, the trial court found that all of the alleged crimes of violence and the prior felony convictions had been proved beyond a reasonable doubt.

The court observed that "defendant has shown a long pattern of violent crime against many, many victims." The court cited defendant's criminal history; the violence he exhibited in the charged offenses, including the killing of Henry Song; and defendant's conduct in custody since his arrest. The trial court concluded that "[r]egarding Mr. Sivongxxay, as unpleasant as it is, I find the death sentence to be justified and appropriate." II. DISCUSSION In his appeal, defendant challenges the validity of his jury waiver and the trial court's consideration of certain evidence at the penalty phase.

He also raises several challenges to the constitutionality of the death penalty. A. Guilt Phase As previously discussed, the guilt and penalty phases of defendant's trial proceeded before a court sitting without a jury. Defendant asserts that he did not enter a valid waiver of his right to a jury trial, in derogation of his rights under the state and federal Constitutions and state statutory law. 1. Waiver of a Jury Trial Both defendant and Mounsaveng were present at the pretrial waiver hearing and were represented by counsel. The colloquy proceeded as follows: "THE COURT: Okay.

Oday Mounsaveng and Vaene Sivongxxay. "MS. DETJEN: Jennifer Detjen, appearing for the People. "MR. PETILLA: Rudy Petilla, for Mr. Sivongxxay. "MR. KINNEY: Ernest Kinney, present in court, for Tony Vong [an alias of Oday Mounsaveng]. "THE COURT: This matter is currently set for trial. What do we have, the 11th? "MS. DETJEN: That's good. "THE COURT: January 11th. Status of the case? "MR. KINNEY: Your Honor, I believe we're ready to proceed on the 11th. I've talked with cocounsel and the DA, and for a variety of reasons-we're prepared to go.

We're prepared to-waive a jury trial and have a judge trial in this death penalty case. "MR. PETILLA: That's correct, Your Honor, and I have, of course-would acknowledge that this particular court would still be hearing the case. "THE COURT: Yes, it's been assigned to me for all purposes. Ms. Detjen, People's position? "MS. DETJEN: People are ready to waive a jury trial in this case. "THE COURT: All right. And I think the record should show-since this is a capital case-that, and the record is void of any in-chambers' [sic ] discussions on this. We haven't had any. "MS. DETJEN: That's correct. "MR. PETILLA: Yes.

"MR. KINNEY: That's correct. "THE COURT: Mr. Mounsaveng, Mr. Sivongxxay, you each have a right to a trial, either by a jury of 12 people selected from this community, through a process that you would engage in with your attorneys, the district attorney and the Court, or a trial in front of a judge, acting alone without a jury. [¶] The burden of proof remains the same. The district attorney has the burden to go forth with evidence sufficient to prove your guilt beyond a reasonable doubt. Then, and only then, would we get to a penalty phase. [¶] In a court trial, I would hear the evidence.

I, alone, would make the decision on whether that evidence was sufficient to prove your guilt beyond a reasonable doubt. [¶] In the event I made such a finding, as to either or both of you, we would then proceed to a penalty phase, where the district attorney would present aggravation evidence.

Through your-you, through your attorney, would have a right to present mitigation evidence, and it would fall upon me to make the decision as to the appropriate punishment, which could result in a death penalty sentence. [¶] Do you give up your right to a jury trial and agree that this Court, alone, will make those decisions, Mr. Mounsaveng? "THE DEFENDANT MOUNSAVENG: Yes. "THE COURT: Mr. Sivongxxay? "THE DEFENDANT SIVONGXXAY: Yes. "THE COURT: Ms. Detjen? "MS. DETJEN: Yes, Your Honor, the People waive the jury trial. "THE COURT: All right.

We'll show a jury waiver on all issues, confirm the matter for January the 11th. We'll notify the jury commissioner that they do not need to send out any summonses, and we will start with the pretrial matters on that day...." There was no further discussion of jury waiver throughout the remainder of the trial proceedings. Under the federal Constitution and our state Constitution, a defendant in a criminal prosecution has a right to a jury trial. (U.S. Const., amend. VI ; Cal. Const., art. I, § 16 ; People v.

Weaver (2012) 53 Cal.4th 1056, 1071, 139 Cal.Rptr.3d 355, 273 P.3d 546 (Weaver ).) However, 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." (Cal. Const., art. I, § 16.) Waiver must be "express[ed] in words ... and will not be implied from a defendant's conduct." ( People v.

Holmes (1960) 54 Cal.2d 442, 443-444, 5 Cal.Rptr. 871, 353 P.2d 583 (Holmes ).) Moreover, "a defendant's waiver of the right to jury trial may not be accepted by the court unless it is 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.' " ' " (People v. Collins (2001) 26 Cal.4th 297, 305, 109 Cal.Rptr.2d 836, 27 P.3d 726 (Collins ), quoting Moran v.

Burbine (1986) 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410.) "[W]hether or not there is an intelligent, competent, self-protecting waiver of jury trial by an accused must depend upon the unique circumstances of each case." (Adams v. U.S. ex rel. McCann (1942) 317 U.S. 269, 278, 63 S.Ct. 236, 87 L.Ed. 268 (Adams ).) Defendant acknowledges that he expressly stated on the record that he gave up his right to a jury trial, and he makes no claim that his purported waiver was coerced or otherwise involuntary. Instead, he asserts that his decision to waive his jury trial right was not knowing and intelligent.

Specifically, he contends that as a Laotian refugee with no formal education and limited command of the English language, he would not have understood what the right to trial by jury entailed unless the trial court or counsel explained it to him. Defendant points out that the trial court's waiver colloquy did not explain that a jury must be impartial, that its verdict must be unanimous, or that the trial court must declare a mistrial if the jury fails to reach a verdict.

The trial court also did not ask any questions confirming that defendant understood how a jury works, or that defendant had discussed the jury waiver with his counsel. Our precedent has not mandated any specific method for determining whether a defendant has made a knowing and intelligent waiver of a jury trial in favor of a bench trial. We instead examine the totality of the circumstances. (See Adams , supra , 317 U.S. at p. 278, 63 S.Ct. 236 ; cf. People v.

Marlow (2004) 34 Cal.4th 131, 148, 17 Cal.Rptr.3d 825, 96 P.3d 126 [looking to the "totality of the circumstances" in ascertaining whether a defendant knowingly and intelligently waived his rights in entering a guilty plea]; People v. Howard (1992) 1 Cal.4th 1132, 1175, 5 Cal.Rptr.2d 268, 824 P.2d 1315 (Howard ) [same].) Here, we conclude that defendant entered a knowing and intelligent jury waiver. Although defendant is a Laotian refugee with no formal education and limited English proficiency, he was represented by counsel and assisted by a translator throughout the trial.

The defense initiated the request for a court trial. In response, the trial court advised defendant that he had a right to a jury trial, that a jury consists of 12 people from the community, that he would have the right to participate in the selection of the jury, and that waiver of the right to a jury would mean the judge alone would determine his guilt or innocence and any resulting punishment.

After these advisements, defendant answered "Yes" when asked whether he wished to "give up [his] right to a jury trial and agree that this Court, alone, will make those decisions." The trial court then observed that the waiver applied to "all issues" at trial. Additionally, defendant had prior experience with the criminal justice system, having pleaded guilty to two prior offenses in Oregon and one in Washington State. In 1993, in connection with his guilty plea in Washington, he signed a waiver stating that he "fully underst[ood]" his right to a jury trial. (See Parke v.

Raley (1992) 506 U.S. 20, 37, 113 S.Ct. 517, 121 L.Ed.2d 391 ["evidence of a defendant's prior experience with the criminal justice system [is] relevant to the question whether he knowingly waived constitutional rights"] ); People v. Langdon (1959) 52 Cal.2d 425, 432, 341 P.2d 303 [observing, in ascertaining whether there had been a knowing and intelligent waiver of the jury trial right, that the defendant "had also been before the criminal courts on at least three previous occasions"]; State v.

Rizzo (2011) 303 Conn. 71, 31 A.3d 1094, 1112 (Rizzo ) [considering a defendant's prior experience with the criminal justice system as relevant to whether the defendant entered a knowing and intelligent jury waiver]; People v. Bannister (2008) 232 Ill.2d 52, 327 Ill.Dec. 450, 902 N.E.2d 571, 584 [same]; Poore v. State (Ind. 1997) 681 N.E.2d 204, 207 [same].) Viewed holistically, the circumstances surrounding defendant's jury waiver demonstrate that it was knowing and intelligent.

Defendant points out that the trial court did not mention that a jury must be impartial, and must also be unanimous in order to render a verdict. But "[t]he United States Supreme Court has never held that a defendant, when waiving the right to a jury, constitutionally is entitled to be canvassed by the trial court, let alone to require a specifically formulated canvass" (Rizzo , supra , 31 A.3d at p. 1116 ; see also U.S. v.

Cochran (9th Cir. 1985) 770 F.2d 850, 851 (Cochran )), and we have never insisted that a jury waiver colloquy invariably must discuss juror impartiality, the unanimity requirement, or both for an ensuing waiver to be knowing and intelligent. (See People v.

Tijerina (1969) 1 Cal.3d 41, 45-46, 81 Cal.Rptr. 264, 459 P.2d 680 [finding a jury waiver knowing and intelligent even though the defendant was not advised of the unanimity requirement].) It is true that in many cases in which we have upheld a waiver of a jury trial, we have observed that the defendant had been expressly advised that unanimity among the 12 jurors is necessary to render a guilt or penalty verdict. (See People v. Cunningham (2015) 61 Cal.4th 609, 636, 189 Cal.Rptr.3d 737, 352 P.3d 318 ; People v. Scott (1997) 15 Cal.4th 1188, 1208, 65 Cal.Rptr.2d 240, 939 P.2d 354 (Scott ); People v.

Diaz (1992) 3 Cal.4th 495, 570, 11 Cal.Rptr.2d 353, 834 P.2d 1171 (Diaz ); People v.

Robertson (1989) 48 Cal.3d 18, 37, fn. 5, 255 Cal.Rptr. 631, 767 P.2d 1109 (Robertson ).) But under the totality of the circumstances standard, the presence or absence of a reference in a colloquy to this particular attribute of a jury trial, or to the impartiality requirement, is not necessarily determinative of whether a waiver meets constitutional standards. (See Weaver , supra , 53 Cal.4th at pp. 1072-1074, 139 Cal.Rptr.3d 355, 273 P.3d 546 [rejecting a defendant's argument that the failure to advise him of his right to participate in jury selection necessarily rendered his jury waiver invalid]; U.S. v.

DeRobertis (7th Cir.1983) 715 F.2d 1174, 1186 [finding a knowing and intelligent jury waiver notwithstanding the trial court's failure to advise the defendant of the juror vote necessary to convict]; Rizzo , supra , 31 A.3d at p. 1118 ["this court and others have rejected claims that an otherwise valid waiver of the right to a jury is undermined by the trial court's failure to include a specific item of information in its canvass"].) With the circumstances presented here, we are not persuaded that the trial court's failure to mention these characteristics of a jury trial renders defendant's waiver constitutionally infirm.

At the same time, we use this opportunity to emphasize the value of a robust oral colloquy in evincing a knowing, intelligent, and voluntary waiver of a jury trial. Although our case law has eschewed any rigid formula or particular form of words that a trial court must use in taking a jury waiver, we observe that many other courts have offered guidance regarding important components of the waiver colloquy. (See, e.g., U.S. v.

Delgado (7th Cir. 1981) 635 F.2d 889, 890 [trial courts "should explain that a jury is composed of twelve members of the community, that the defendant may participate in the selection of jurors, and that the verdict of the jury is unanimous. The court should inform the defendant that if he waives a jury, the judge alone will decide guilt or innocence"]; U.S. v. Robertson (10th Cir. 1995) 45 F.3d 1423, 1432 [same]; Marone v. U.S. (2d Cir. 1993) 10 F.3d 65, 68 [same]; U.S. v. Martin (6th Cir. 1983) 704 F.2d 267, 274-275 [same]; State v. Blann (2014) 217 N.J. 517, 90 A.3d 1253, 1253 [same]; State v.

Redden (1997) 199 W.Va. 660, 487 S.E.2d 318, 326 [adopting the same advisements and also suggesting that a trial court should "ascertain on the record whether improper pressure or inducements, or a confused mental state, have affected the defendant's decision to waive the right to a jury trial"]; U.S. v. Duarte-Higareda (9th Cir. 1997) 113 F.3d 1000, 1002 (Duarte-Higareda ) [stating that the district court should advise a defendant of these factors and "question the defendant to ascertain whether the defendant understands the benefits and burdens of a jury trial and freely chooses to waive a jury"]; State v.

Anderson (2002) 249 Wis.2d 586, 638 N.W.2d 301, 310 [adopting similar advisements and also stating that a trial court must ensure that the defendant "made a deliberate choice, absent threats or promises, to proceed without a jury trial" and "had enough time to discuss this decision with his or her attorney"].) Consistent with these decisions, we 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.

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. This guidance, of course, pertains only to waiver of a jury trial in favor of a bench trial. Furthermore, we emphasize that our guidance is not intended to limit trial courts to a narrow or rigid colloquy. We agree with the Connecticut Supreme Court that ultimately, a " 'defendant's rights are not protected only by adhering to a predetermined ritualistic form of making the record.

Matters of reality, and not mere ritual, should be controlling.' " (Rizzo , supra , 31 A.3d at p. 1120.) Accordingly, the guidance above is advisory. As reflected in our determination here that defendant entered a knowing and intelligent waiver of his right to a jury trial, 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. (See U.S. v. Rodriguez (7th Cir. 1989) 888 F.2d 519, 527 [describing the advisements prescribed in U.S. v.

Delgado , supra , 635 F.2d 889, as "called for as a matter of prudence," and observing that "[l]esser (even no) warnings do not call into question the sufficiency of the waiver so far as the Constitution is concerned"]; Cochran , supra , 770 F.2d at p. 851.) Reviewing courts must continue to consider all relevant circumstances in determining whether a jury trial waiver was knowing, intelligent, and voluntary. 2. Jury Waiver for the Special Circumstance Allegation Defendant also contends that he did not validly waive his right to a jury trial with respect to the special circumstance allegation.

He observes that "the trial court made no mention of the special circumstance determination or the right to a jury trial thereon," and that defense counsel never stated on the record that he had discussed the special circumstance determination with his client. Defendant asserts that he therefore cannot be found to have entered a separate waiver of a jury trial for this allegation, as is required under People v.

Memro (1985) 38 Cal.3d 658, 700-704, 214 Cal.Rptr. 832, 700 P.2d 446 (Memro ), and that his general jury waiver cannot be understood as incorporating a knowing and intelligent surrender of his right to a jury trial concerning the allegation.

Defendant's argument merges what are in fact two separate questions: whether his jury waiver was knowing and intelligent regarding the special circumstance allegation, and thereby met constitutional standards; and whether state law statutory error occurred under Memro , due to a failure to satisfy that decision's requirement for complying with certain provisions of the Penal Code. We find that there was a knowing and intelligent waiver regarding the special circumstance allegation, but agree with defendant that there was error under Memro . On the record before us, however, this error was harmless. a.

Adequacy of the Jury Waiver for the Special Circumstance Allegation Under the Federal and State Constitutions A defendant who has been convicted of first degree murder is eligible for the death penalty only if the prosecution has charged, and the trier of fact has found true, one or more statutorily enumerated special-circumstance allegations. (§ 190.2, subd. (a).) "Whenever special circumstances ... are alleged and the trier of fact finds the defendant guilty of first degree murder, the trier of fact shall also make a special finding on the truth of each alleged special circumstance." (§ 190.4, subd. (a).) With the exception of a prior-murder special-circumstance allegation (§ 190.2, subd. (a)(2)), which requires a separate proceeding, "[i]f the trier of fact finds the defendant guilty of first degree murder, it shall at the same time determine the truth of all special circumstances charged...." (§ 190.1, subd. (a).) Defendant asserts that there was no knowing and intelligent waiver of his right to a jury trial concerning the robbery-murder special circumstance alleged against him.

He does not argue that he was unaware of the special circumstance, or that he did not appreciate that he could receive the death penalty if it were found true. Rather, he emphasizes that the trial court never explicitly told him that he had a right to a jury trial for the special circumstance allegation. Defendant argues that this omission, viewed in the context of the record as a whole, means that he cannot be understood to have entered a valid waiver of his right to a jury trial for this allegation.

Defendant demands more than the federal and state Constitutions require for a valid waiver of the jury trial right. As discussed, a knowing and intelligent jury waiver requires an appreciation of the nature of the jury trial right and the consequences of forgoing this right. (Collins , supra , 26 Cal.4th at p. 305, 109 Cal.Rptr.2d 836, 27 P.3d 726.) There is no additional constitutional requirement that a defendant be specifically advised of the specific charges, enhancements, allegations, or other issues to which a general jury waiver will apply.

On the contrary, with a comprehensive jury waiver such as the one entered below, absent unusual circumstances not present here " '[i]t is settled that where a defendant waives a jury trial he is deemed to have consented to a trial of all of the issues in the case before the court sitting without a jury.' " (People v. Berutko (1969) 71 Cal.2d 84, 94, 77 Cal.Rptr. 217, 453 P.2d 721 (Berutko ), quoting People v. Russell (1961) 195 Cal.App.2d 529, 532, 16 Cal.Rptr. 9 ; see also People v.

Jarmon (1992) 2 Cal.App.4th 1345, 1354-1355, 4 Cal.Rptr.2d 9 ; see generally 6 LaFave et al., Criminal Procedure (4th ed. 2015) § 22.1(h), p. 48 ["A jury waiver generally waives the right to a jury determination of all of the elements of an offense, including facts that authorize a higher sentencing range, treated as elements under the Court's Apprendi line of cases"] and cases cited.) Under this prevailing rule, our earlier determination that defendant's general waiver of a jury trial was knowing and intelligent is sufficient in itself to defeat defendant's contention that his waiver did not meet constitutional standards with regard to the special circumstance allegation.

Defendant's argument would fail even if we were to assume that-contrary to the conventional rule-a constitutionally sufficient general jury waiver does not necessarily incorporate a knowing and intelligent waiver of a jury trial for a special circumstance allegation in a capital case. Here, the specific advisements the trial court provided to defendant before taking his waiver, together with the other surrounding circumstances, confirm that defendant knowingly and intelligently relinquished his right to a jury trial for this allegation.

To review, after each defendant, through counsel, stated his desire to waive jury trial, the trial judge explained to defendant that he had "a right to a trial, either by a jury ... or a trial by a judge." The judge described the trial as incorporating two phases.

In the first phase, the judge explained, the district attorney bore the burden of introducing evidence sufficient to prove guilt beyond a reasonable doubt, and "[t]hen, and only then, would we get to a penalty phase." The judge also explained that in a court trial he alone "would make the decision on whether that evidence was sufficient to prove [defendant's] guilt beyond a reasonable doubt," and "In the event [he] made such a finding," the case would proceed to a penalty phase, at which time it would "fall upon [the judge] to make the decision as to the appropriate punishment, which could result in a death penalty sentence." The ultimate question posed to defendant was "Do you give up your right to a jury trial and agree that this Court, alone, will make those decisions ...?" After defendant answered in the affirmative, the trial court observed that the waiver applied to "all issues" in the trial.

Viewed together with all other relevant circumstances, this colloquy demonstrates beyond any dispute that defendant's waiver incorporated a knowing and intelligent declination of a jury trial for the special circumstance allegation. The trial court's advisement conveyed that defendant had a right to a jury trial with regard to all issues as to which an adverse determination could expose him to the death penalty-which included the special circumstance allegation-and that with his waiver, defendant would be giving up that right.

Defendant's ensuing assent to a bench trial therefore manifested a knowing and intelligent waiver of his jury trial right with regard to the special circumstance allegation. Our finding of a knowing and intelligent waiver of a jury trial for the special circumstance allegation finds support in our decision in Diaz , supra , 3 Cal.4th 495, 11 Cal.Rptr.2d 353, 834 P.2d 1171. There, in taking the defendant's waiver of a jury trial, the trial court informed the defendant, " '[Y]ou'll be giving up that right to have the jury in two different functions.

First of all, first function is to decide the question of your guilt or innocence. Then the second function, similarly, assuming there are 12 of them and they would unanimously agree that you were guilty, then you would have 12 jurors who must unanimously agree as to the punishment. [¶] They have a choice, life without the possibility of parole or death....

And you'll be giving up that right.' " The defendant answered, " 'I'm giving it up.' " The court then asked the defendant if he understood that his waiver applied to " 'both phases ... of the special circumstances case.' " The defendant assented. (Id. , at p. 564, 11 Cal.Rptr.2d 353, 834 P.2d 1171.) The defendant also told the court that he had discussed the matter " 'quite thoroughly' " with his attorney. (Id ., at p. 565, 11 Cal.Rptr.2d 353, 834 P.2d 1171.) Diaz , supra , 3 Cal.4th 495, 11 Cal.Rptr.2d 353, 834 P.2d 1171, rejected the defendant's argument that his waiver was invalid, ruling instead that "the trial court explained to defendant that the waiver of his right to trial by jury applied to all aspects of his special circumstances case, from beginning to end....

Although the trial court's admonition was not a model of clarity, we believe it was sufficient to advise defendant that his waiver, which included all aspects of guilt and penalty, included within it a waiver of the right to jury trial on the truth or falsity of the special circumstance allegation." (Id. , at p. 565, 11 Cal.Rptr.2d 353, 834 P.2d 1171.) Diaz reached this conclusion even though the trial court never explained to the defendant what a "special circumstance" was, and indeed, used the term "special circumstance" only in describing the type of case that was involved.

The defendant in Diaz was never told by the judge that this "special circumstance" represented a specific allegation as to which he had a distinct jury trial right. Yet the court in Diaz nevertheless found a valid jury waiver concerning the special circumstance allegation. Given similar facts, the same reasoning applies here.

Although the court below never used the phrase "special circumstance" in its colloquy with defendant, its advisement communicated to defendant that his waiver of a jury trial, if entered, would encompass the determinations that could make him subject to the death penalty as part of a described trial process. Defendant's resulting jury waiver was therefore knowing and intelligent with regard to the special circumstance allegation.

The dissenting justices apparently read the trial judge's advisements differently, perceiving the failure to expressly refer to the special circumstance allegation as somehow implicitly excluding that allegation from a counseled and otherwise comprehensive jury waiver. (See conc. & dis. opn. of Liu, J., post , 219 Cal.Rptr.3d at pp. 308-312, 396 P.3d at pp. 460-463 ; conc. & dis. opn. of Cuéllar, J., post , at pp. 219 Cal.Rptr.3d at pp. 322-324, 396 P.3d at pp. 471-473.) We respectfully disagree with this

interpretation of the colloquy, for the reasons we have previously given. The dissenting justices' position boils down to the proposition that the judge was constitutionally bound to utter the phrase "special circumstance" at some point in the waiver colloquy with defendant, even if the judge never went on to explain what this phrase meant. But our waiver jurisprudence rejects the notion that a knowing and intelligent waiver hinges on the recitation of a " 'talismanic phrase.' " (Howard , supra , 1 Cal.4th at p. 1180, 5 Cal.Rptr.2d 268, 824 P.2d 1315, quoting U.S. v.

Sherman (9th Cir. 1973) 474 F.2d 303, 306.) The fact of the matter is that the dissenting justices, like defendant, would require a degree of elaboration and specificity in a jury waiver colloquy that has never been demanded for a jury waiver to be considered knowing and intelligent under constitutional standards. b. Statutory Issues with Jury Waiver / Memro Error Defendant's related attack on his jury waiver, as it pertains to the special circumstance allegation, involves our decision in Memro .

Memro , supra , 38 Cal.3d 658, 214 Cal.Rptr. 832, 700 P.2d 446, reconciled the provisions of sections 190.1, subdivision (

a) and 190.4, subdivision (a). The former provides, in pertinent part, that in the trial of a capital case, "The question of the defendant's guilt shall be first determined. If the trier of fact finds the defendant guilty of first degree murder, it shall at the same time determine the truth of all special circumstances charged." (§ 190.1, subd. (a).) This provision suggests that the same trier of fact will determine guilt and the truth of any special circumstance allegations.

The relevant text within the latter provision states, however, that "[i]f the defendant was convicted by the court sitting without a jury, the trier of fact [on the special circumstance allegation(s) ] shall be a jury unless a jury is waived by the defendant and by the people, in which case the trier of fact shall be the court." (§ 190.4, subd. (a).) Memro construed these statutes (as enacted by the Legislature in 1977, see Stats. 1977, ch. 316, §§ 7, 12, pp. 1257, 1261), read together, as requiring a "separate, personal waiver" of the right to a jury for a special circumstance allegation, above and beyond the standard guilt phase and penalty phase waiver. (Memro , at p. 704, 214 Cal.Rptr. 832, 700 P.2d 446.) We have since clarified that the "separate waiver" required under Memro does not require a second enunciated waiver by the defendant.

In Diaz , this court's first case applying Memro , we explained that under Memro , "[t]he waiver must be made by the defendant personally, and must be 'separate'-that is, if the defendant is to be deemed to have waived the right to jury trial on both guilt and special circumstances, the record must show that the defendant is aware that the waiver applies to each of these aspects of trial." (Diaz , 3 Cal.4th at p. 565, 11 Cal.Rptr.2d 353, 834 P.2d 1171.) Because the defendant in Diaz "told the court that he had discussed the matter 'quite thoroughly' with his counsel," and the trial court's colloquy "explained to defendant that the waiver of his right to trial by jury applied to all aspects of his special circumstances case, from beginning to end," Diaz held that Memro was satisfied. (Diaz , at p. 565, 11 Cal.Rptr.2d 353, 834 P.2d 1171.) The Memro rule was construed similarly in People v.

Wrest (1992) 3 Cal.4th 1088, 13 Cal.Rptr.2d 511, 839 P.2d 1020 (Wrest ). There, the defendant engaged in an on-the-record colloquy with the prosecutor.

In this colloquy, the prosecutor mentioned the terms "special circumstances" or "special allegations" several times, ultimately asking the defendant, " 'In other words, you don't want a jury trial on the issue of guilt or the special circumstances or the enhancements, right?' " to which the defendant answered, " 'Yes.' " (Id ., at pp. 1103-1104, 13 Cal.Rptr.2d 511, 839 P.2d 1020, italics omitted.) Wrest found that the record reflected an "express and personal understanding and waiver of [the defendant's] right to a jury trial on the special circumstance allegations," observing that "[t]he mere fact that the prosecutor's questions combined issues of guilt, special circumstances, and enhancements did not vitiate the waiver." (Id ., at p. 1104, 13 Cal.Rptr.2d 511, 839 P.2d 1020.) In finding no error under Memro , Wrest disapproved three Court of Appeal decisions to the extent that they might have been read to require a specific procedure for complying with Memro . (Wrest , at pp. 1104-1105, 13 Cal.Rptr.2d 511, 839 P.2d 1020.) Wrest explained that Memro does not demand "that a defendant's waiver of his jury-trial right on special circumstance allegations be taken in accordance with a prescribed ritual, e.g., a separate interrogation of defendant about his special circumstance jury trial rights as distinct from his other jury trial rights.... [Memro ] simply requires that a valid waiver of the jury-trial right on a special circumstance actually cover the special circumstance.

It does not require such a waiver to be taken in accordance with any particular procedure." (Wrest , at p. 1105, 13 Cal.Rptr.2d 511, 839 P.2d 1020 ; see also Weaver , supra , 53 Cal.4th at pp. 1074-1075, 139 Cal.Rptr.3d 355, 273 P.3d 546 ; Scott , supra , 15 Cal.4th at p. 1208, 65 Cal.Rptr.2d 240, 939 P.2d 354.) The Attorney General urges us to construe the waiver colloquy here as sufficient under Memro .

The Attorney General's argument finds some support in our statement in Wrest , supra , 3 Cal.4th 1088, 13 Cal.Rptr.2d 511, 839 P.2d 1020, that Memro "simply requires that a valid waiver of the jury-trial right on a special circumstance actually cover the special circumstance." (Wrest , at p. 1105, 13 Cal.Rptr.2d 511, 839 P.2d 1020.) Arguably, our conclusion that the trial court secured a constitutionally adequate waiver of a jury trial concerning the special circumstance allegation could be equated with a determination that defendant's waiver covered the charge, in the sense that it encompassed a knowing and intelligent waiver of a jury trial for the allegation.

We nevertheless conclude the colloquy fell short of what the applicable statutes, as construed in Memro , require. There was no specific reference in the waiver colloquy to the need to adjudicate the special circumstance allegation; the term "special circumstance" was never mentioned at all. Although such precision is not required for a knowing, voluntary, and intelligent waiver, we believe that Memro 's requirement of a "separate waiver," even as that rule was subsequently clarified in Diaz and Wrest , demands at least that much specificity.

Although we recognize that the line we draw is a narrow one, we hold that defendant's purported waiver as to the special circumstance determination was deficient, as a matter of state law, under Memro , supra , 38 Cal.3d 658, 214 Cal.Rptr. 832, 700 P.2d 446. Having identified Memro error, we now consider whether this error is amenable to harmless error review or instead requires automatic reversal. States are free to apply their own harmless error rules to errors of state law. (Cooper v.

California (1967) 386 U.S. 58, 62, 87 S.Ct. 788, 17 L.Ed.2d 730 ["when ... state standards alone have been violated, the State is free ... to apply its own state harmless-error rule to such errors of state law"].) The California Constitution imposes upon this court an obligation to conduct "an examination of the entire cause" and reverse a judgment below for error only upon determining that a "miscarriage of justice" has occurred. (Cal. Const., art.

VI, § 13.) This provision informs the general rule in this state that to obtain reversal of the judgment based on a violation of a state statute, a defendant must demonstrate that it is "reasonably probable that a result more favorable to [the defendant] would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243 (Watson ).) Defendant argues that the Watson standard does not apply here, and that the error below should instead be regarded as structural, or reversible per se. We disagree.

Categorization of an error as structural represents "the exception and not the rule." (Rose v. Clark (1986) 478 U.S. 570, 578, 106 S.Ct. 3101, 92 L.Ed.2d 460 ; see also People v. Marshall (1996) 13 Cal.4th 799, 851, 55 Cal.Rptr.2d 347, 919 P.2d 1280 ["[t]here is a strong presumption any error" is susceptible to harmless error analysis].) In determining whether a federal constitutional error qualifies as structural, courts "ask whether the error rendered the trial 'fundamentally unfair or an unreliable vehicle for determining guilt or innocence' (Neder [v.

United States (1999) 527 U.S. 1, 9 [119 S.Ct. 1827, 144 L.Ed.2d 35] ] ), or whether the effect of the error is 'necessarily unquantifiable and indeterminate' (Sullivan [v. Louisiana (1993) 508 U.S. 275, 282, 113 S.Ct. 2078, 124 L.Ed.2d 182 ] )." (People v. Aranda (2012) 55 Cal.4th 342, 366, 145 Cal.Rptr.3d 855, 283 P.3d 632, italics omitted.) The fact that an error implicates important constitutional rights does not necessarily make it structural. "Many statutes ... set out procedures designed to protect constitutional principles.

Broadly construed, many of these procedural statutes may be said to protect due process and other constitutional safeguards. Nevertheless, most procedural shortcomings constitute trial error" and not structural error. (People v. Anzalone (2013) 56 Cal.4th 545, 555-556, 155 Cal.Rptr.3d 352, 298 P.3d 849 (Anzalone ).) The "miscarriage of justice" language within

article VI,

section 13 of the California Constitution likewise contemplates a limited class of structural errors, consisting of " '[t]he kinds of errors that, regardless of the evidence, may result in a "miscarriage of justice" because they operate to deny a criminal defendant the constitutionally required "orderly legal procedure" (or, in other words, a fair trial)-for example, the denial of the defendant's right to a jury trial or to an impartial trial judge [citation]-[and] all involve fundamental "structural defects" in the judicial proceedings....' " ( People v.

Alexander (2010) 49 Cal.4th 846, 896, 113 Cal.Rptr.3d 190, 235 P.3d 873.) The mistake that occurred here is not such an error. At the outset, we observe that defendant has not directed our attention to any language in

section 190.1, subdivision (a), in

section 190.4, subdivision (a), or in any legislative or ballot materials relating to these statutes that indicate the Legislature (in enacting the 1977 versions of these statutes) or the electorate (in repealing and reenacting these statutes as part of a 1978 initiative (Prop. 7, §§ 3-4, 9-10, as approved by voters, Gen.

Elec., Nov. 7, 1978)) saw a structural error as occurring when a trial court, in taking a knowing and intelligent waiver of the jury trial right, fails to explicitly reference the special circumstance allegation as encompassed within the waiver, or otherwise obtain a separate jury waiver for this allegation. Nor does the analysis in Memro itself support treating the error here as structural.

Memro determined that another error required reversal and a remand of the matter for additional proceedings. (Memro , supra , 38 Cal.3d at p. 704, 214 Cal.Rptr. 832, 700 P.2d 446.) For this reason, Memro did not need to and did not determine the consequences of a judge's failure to elicit a sufficiently specific jury waiver for the trial of a special circumstance allegation. (Id ., at pp. 704-705, 214 Cal.Rptr. 832, 700 P.2d 446.) Yet Memro never suggested that a failure to obtain such a waiver would fall into the rare class of mistakes that are reversible per se.

And indeed, every Court of Appeal that has detected the type of error described in Memro has applied a form of harmless error analysis to the mistake, rather than finding it reversible per se. (People v. Moreno , supra , 228 Cal.App.3d at p. 579, 279 Cal.Rptr. 140 ; People v. Gastile , supra , 205 Cal.App.3d at pp. 1383-1384, 253 Cal.Rptr. 283 ; People v. Granger (1980) 105 Cal.App.3d 422, 428-429, 164 Cal.Rptr. 363.) The type of Memro error involved here is, in fact, quite different from those mistakes that are regarded as structural.

This error did "not necessarily render [defendant's] criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence." ( Neder v. United States , supra , 527 U.S. at p. 9, 119 S.Ct. 1827.) Nor are the effects of this lapse "necessarily unquantifiable and indeterminate." (Sullivan v. Louisiana , supra , 508 U.S. at p. 282, 113 S.Ct. 2078.) On the contrary, we are more than capable of scrutinizing the record to ascertain whether it reveals a reasonable probability that defendant would have demanded a jury trial for the special circumstance allegation, had no Memro error occurred.

Defendant characterizes such an inquiry as unduly speculative. But we have conducted comparable evaluations of the record in other contexts, assessing whether a defendant would have made a different decision absent an error in advisement. For example, we have structured examinations of prejudice around whether a criminal defendant still would have entered a guilty or no contest plea had the judge provided an adequate advisement regarding the plea's immigration consequences (People v. Martinez (2013) 57 Cal.4th 555, 559, 160 Cal.Rptr.3d 37, 304 P.3d 529 (Martinez ); People v.

Superior Court (Zamudio ) (2000) 23 Cal.4th 183, 192, 96 Cal.Rptr.2d 463, 999 P.2d 686 (Zamudio )); whether a defendant would have accepted a plea bargain offered by the prosecution had his or her attorney provided effective assistance of counsel (In re Alvernaz (1992) 2 Cal.4th 924, 937, 8 Cal.Rptr.2d 713, 830 P.2d 747 ); and whether an unrepresented defendant would have invoked the right to counsel had he or she been readvised of this right upon arraignment after the preliminary examination, as is required under

section 987, subdivision (a) (People v. Crayton (2002) 28 Cal.4th 346, 365, 121 Cal.Rptr.2d 580, 48 P.3d 1136 (Crayton )). Martinez , supra , 57 Cal.4th 555, 160 Cal.Rptr.3d 37, 304 P.3d 529, is instructive concerning the nature of this type of review. Previously, we had determined in Zamudio , supra , 23 Cal.4th 183, 96 Cal.Rptr.2d 463, 999 P.2d 686, that where a trial court fails to supply the advisement required under

section 1016.5 regarding the immigration consequences of a guilty or no contest plea and the defendant shows that his or her conviction may result in adverse immigration consequences, the court, on the defendant's motion, must vacate the judgment and allow the defendant to withdraw the plea-provided, however, the defendant also could show prejudice by establishing that "it was reasonably probable he or she would not have pleaded guilty if properly advised." (Martinez , at p. 559, 160 Cal.Rptr.3d 37, 304 P.3d 529, citing Zamudio , at p. 210, 96 Cal.Rptr.2d 463, 999 P.2d 686.) Martinez considered "whether a court ruling on a motion to vacate pursuant to

section 1016.5 may deny relief, for lack of prejudice, if it concludes the defendant would not have obtained a more favorable outcome had he or she chosen not to plead guilty or nolo contendere." (Martinez , at p. 559, 160 Cal.Rptr.3d 37, 304 P.3d 529.) It determined that "because the question is what the defendant would have done , relief should be granted if the court, after considering evidence offered by the parties relevant to that question, determines the defendant would have chosen not to plead guilty or nolo contendere, even if the court also finds it not reasonably probable the defendant would thereby have obtained a more favorable outcome." (Ibid . ) This approach recognizes that a defendant may accept or reject a plea for what might objectively appear to be unreasonable motives, which must be respected as reflections of the defendant's autonomy.

Nevertheless, as befits an error under state statutory law alone, review occurs under the "reasonably probable" standard of Watson , supra , 46 Cal.2d at page 836, 299 P.2d 243, and the defendant bears the burden of showing that he or she would have acted differently had the error not occurred. (Martinez , supra , 57 Cal.4th at p. 562, 160 Cal.Rptr.3d 37, 304 P.3d 529.) This assignment of the burden can be important, as it was in People v. McClellan (1993) 6 Cal.4th 367, 24 Cal.Rptr.2d 739, 862 P.2d 739.

McClellan considered a trial court's failure to advise the defendant that his guilty plea would make him subject to registration as a sex offender under

section 290. (McClellan , at p. 372, 24 Cal.Rptr.2d 739, 862 P.2d 739.) On appeal, the defendant in McClellan argued that the error automatically entitled him to withdraw from the plea agreement. (Id ., at p. 374, 24 Cal.Rptr.2d 739, 862 P.2d 739.) Although this court agreed with the defendant that an error occurred under state law (id ., at p. 376, 24 Cal.Rptr.2d 739, 862 P.2d 739 ), it disagreed regarding the resulting remedy.

McClellan concluded that the defendant bore the burden of showing he would have made a different decision with a proper advisement, and determined that he had not met that burden: "Although defendant alleges that had he been properly advised, he would not have entered his plea of guilty, there is nothing in the record on appeal to support this contention.

Thus, we conclude defendant has failed to meet his burden of establishing prejudice." (Id ., at p. 378, 24 Cal.Rptr.2d 739, 862 P.2d 739.) Our decisions in cases such as Martinez and McClellan manifest the viability of the form of harmless error analysis that applies here. Similarly pertinent is People v. Sanchez (1995) 12 Cal.4th 1, 47 Cal.Rptr.2d 843, 906 P.2d 1129, where this court evaluated whether a defendant was prejudiced by an error in advisement by considering whether the defendant still would have waived a jury trial absent the mistake.

The defendant in Sanchez received a death sentence after he waived a jury trial for the guilt phase of a capital case, opting instead for the court to decide guilt on the basis of preliminary hearing transcripts. (Id ., at pp. 17, 23-27, 47 Cal.Rptr.2d 843, 906 P.2d 1129.) On appeal, the defendant argued that the trial court committed prejudicial error because in taking the defendant's waiver of a jury trial for the guilt phase, it failed to comply with a state law requirement that the defendant be advised of the potential maximum and minimum terms of imprisonment. (Id ., at p. 30, 47 Cal.Rptr.2d 843, 906 P.2d 1129 ; see People v.

Dakin (1988) 200 Cal.App.3d 1026, 1033, 248 Cal.Rptr. 206.) Applying the Watson "reasonably probable" standard of review to this omission, Sanchez found insufficient indicia of prejudice. (Sanchez , at p. 30, 47 Cal.Rptr.2d 843, 906 P.2d 1129.) The defendant knew that he faced a possible death sentence if convicted, it was noted. (Ibid . ) Furthermore, Sanchez observed, "It is clear from the record that defendant would have waived his right to a jury trial and insisted on the submission of the guilt phase on the preliminary hearing transcripts even if he was specifically told by the court that he faced a possible death sentence." (Id ., at p. 31, 47 Cal.Rptr.2d 843, 906 P.2d 1129.) Other courts also consider themselves capable of ascertaining whether a defendant would have chosen a jury trial over a bench trial if there had not been an error by the judge or counsel in connection with the jury waiver.

In U.S. v. Williams (7th Cir. 2009) 559 F.3d 607, for example, faced with a jury waiver that did not comply with the requirements of rule 23(

a) of the Federal Rules of Criminal Procedure (18 U.S.C.) the court declined to characterize the error as structural. It instead ascertained that "for purposes of determining whether the waiver was , in fact, invalid, one can determine whether the defendant adequately understood his right to a jury; moreover, if the defendant lacked such an understanding, one can assess the likelihood that he would have stood on his right to a jury had he been properly admonished of his right." (U.S. v. Williams , at p. 614.) Later, the court in U.S. v.

Williams reiterated that, having failed to raise a timely objection to the allegedly inadequate waiver procedure, the defendant "must show that he did not have a concrete understanding of his right to a jury and that it is reasonably probable that he would not have waived a jury had he had such an understanding." (Id ., at p. 616.) A similar inquiry has also been endorsed for ascertaining whether a defendant suffered prejudice due to ineffective assistance of counsel in connection with a jury waiver. In State v.

Keller (Iowa 2009) 760 N.W.2d 451, for example, the defendant's written jury waiver did not discuss any of the specific elements of the jury trial right, and there was no record of any waiver colloquy between the trial court and the defendant. (Id., at p. 452.) The defendant in Keller pressed an ineffective assistance of counsel claim, asserting that her counsel provided constitutionally inadequate assistance by not ensuring a knowing and adequate waiver. (Ibid . ) In describing the defendant's burden of showing prejudice, the Keller court explained that she "must prove by a preponderance of the evidence that, but for counsel's failure to assure compliance with the rule, she would not have waived her right to a jury trial." (Id. , at p. 453.) In Illinois, prejudice from the deficient performance of counsel in connection with a jury waiver is assessed by reference to "whether there exists a reasonable likelihood that the defendant would not have waived his jury right in the absence of the alleged error." ( People v.

Maxwell (1992) 148 Ill.2d 116, 170 Ill.Dec. 280, 592 N.E.2d 960, 973.) And in Mallory , supra , 941 A.2d 686, the Pennsylvania Supreme Court rejected the petitioner's argument that counsel's alleged ineffective assistance in connection with a jury waiver amounted to structural error. Mallory concluded instead that "to prove trial counsel ineffective.... appellant must show that his understanding of the written [jury] waiver was constitutionally impaired by his lawyer's deficient performance, as well as proof that he would have elected a jury but for his lawyer's performance." (Id. , at p. 702 ; see also Taylor v.

Horn (3d Cir. 2007) 504 F.3d 416, 450 [observing that a habeas corpus petitioner had not shown that he was prejudiced by the denial of his jury trial right because he "never asserted that he would have elected [a jury], had he known of the option"].) The purpose of this discussion of relevant authority is not to suggest that all of these cases are factually on all fours with the present matter.

It merely establishes that, contrary to defendant's position that such an inquiry is hopelessly speculative, in appropriate circumstances courts can indeed ascertain whether or not a particular defendant would have chosen a jury trial instead of a bench trial had an error in advisement not occurred. Of course, there are limits to the ability of courts to undertake this form of analysis.

These limits are suggested by our decision in Collins , supra , 26 Cal.4th 297, 109 Cal.Rptr.2d 836, 27 P.3d 726 There, in taking the defendant's jury waiver, the judge advised him that he would receive "some benefit" by forgoing a jury trial. (Id ., at p. 302, 109 Cal.Rptr.2d 836, 27 P.3d 726.) Collins regarded this inducement as violating the defendant's federal constitutional rights, because it meant that his ensuing waiver of a jury trial could not be understood as voluntary. (Id ., at pp. 309, 311, 109 Cal.Rptr.2d 836, 27 P.3d 726.) This error, Collins determined, was structural, in the same manner as the outright refusal to provide any jury trial would be. (Id ., at p. 312, 109 Cal.Rptr.2d 836, 27 P.3d 726.) The situation here is different from that before the Collins court in two important respects.

First, the statutory error that arises under state law when a trial court fails to meet Memro 's prophylactic requirement does not necessarily warrant the same treatment that a constitutional error would receive. Our precedent, and that of other jurisdictions, has recognized a difference between a failure to comply with a statutory requirement that may serve to protect a constitutional right, and a violation of the underlying constitutional right itself.

In Anzalone , supra , 56 Cal.4th at page 555, 155 Cal.Rptr.3d 352, 298 P.3d 849, for example, we explained that the statutory requirement that a court or clerk ask a jury whether it has agreed upon a verdict in a criminal case (§ 1149) is "designed to protect the right to a unanimous verdict," a "core constitutional right." We nevertheless held that a failure to comply with this statute was subject to harmless error analysis under the standard specified in Watson , supra , 46 Cal.2d at page 836, 299 P.2d 243. (Anzalone , at pp. 555, 560, 155 Cal.Rptr.3d 352, 298 P.3d 849.) Likewise, in Crayton , supra , 28 Cal.4th at page 364, 121 Cal.Rptr.2d 580, 48 P.3d 1136, we identified the requirement that an unrepresented defendant be readvised of his or her right to counsel upon being arraigned on an information after a preliminary examination (§ 987, subd. (a)) as a "prophylactic safeguard" that protects the right to counsel.

Yet we determined that a failure to readvise a defendant amounted to statutory error, not federal constitutional error, and reviewed the error for prejudice under the Watson standard. (Crayton , at pp. 365-366, 121 Cal.Rptr.2d 580, 48 P.3d 1136 ; see also People v.

Vera (1997) 15 Cal.4th 269, 276, 278, 62 Cal.Rptr.2d 754, 934 P.2d 1279 [distinguishing between the forfeiture rules applicable to constitutional rights and those applicable to statutory rights].) Second, even granting the existence of Memro error, defendant nonetheless personally entered a constitutionally adequate jury waiver, applicable to all phases of his trial.

The presence of a personal jury waiver that met basic constitutional standards, if not the heightened requirements recognized as a matter of statutory construction in Memro , minimizes any speculation that would otherwise be associated with ascertaining whether defendant would have chosen a jury trial for the special circumstance allegation, but for the Memro error. The presence of a knowing, intelligent, and voluntary personal waiver of a jury trial by defendant distinguishes the facts of this case from those involved in People v.

Blackburn (2015) 61 Cal.4th 1113, 191 Cal.Rptr.3d 458, 354 P.3d 268 (Blackburn ) and People v. Tran (2015) 61 Cal.4th 1160, 191 Cal.Rptr.3d 251, 354 P.3d 148, in which errors of state law were treated as structural.

In Blackburn , this court classified as reversible per se a failure to obtain any personal jury waiver at all from a defendant in a civil commitment proceeding. (Id ., at pp. 1133-1134, 191 Cal.Rptr.3d 458, 354 P.3d 268.) Tran similarly cast as structural error the absence of a personal jury waiver from a defendant prior to proceedings to extend his involuntary commitment after pleading not guilty by reason of insanity to a criminal offense. (Tran , at p. 1163, 191 Cal.Rptr.3d 251, 354 P.3d 148.) In those decisions, this court's view of the absence of a personal jury waiver in commitment proceedings as a structural error found support in prior decisions treating a comparable absence of a personal jury waiver in a criminal proceeding as a structural defect. (People v.

Ernst , supra , 8 Cal.4th at pp. 444-449, 34 Cal.Rptr.2d 238, 881 P.2d 298 ; Holmes , supra , 54 Cal.2d at pp. 443-444, 5 Cal.Rptr. 871, 353 P.2d 583 ; see Cal. Const., art. I, § 16.) Here, in contrast, defendant personally entered a jury waiver, meaning that we are not left to "speculate about whether [defendant] would have chosen a jury trial if he ... had been in a position to make a personal choice." (Blackburn , supra , 61 Cal.4th at p. 1134, 191 Cal.Rptr.3d 458, 354 P.3d 268.) Under somewhat analogous circumstances, Blackburn itself contemplated the application of harmless error analysis.

The Blackburn majority observed that "a trial court's failure to properly advise [a] ... defendant of the right to a jury trial does not by itself warrant automatic reversal.

Instead, a trial court's acceptance of a defendant's personal waiver without an express advisement may be deemed harmless if the record affirmatively shows, based on the totality of the circumstances, that the defendant's waiver was knowing and voluntary." (Id ., at p. 1136, 191 Cal.Rptr.3d 458, 354 P.3d 268.) The distinctive facts involved here also render inapposite decisions from other jurisdictions that defendant cites for the proposition that a failure to obtain a valid jury waiver requires automatic reversal. In Fortune v.

U.S. (D.C. 2013) 59 A.3d 949, 955 (Fortune ) the trial court failed to take any waiver of a jury trial from the defendant before proceeding to a bench trial of a charged crime-an error of constitutional dimensions. Other cases that defendant relies upon, meanwhile, either did not involve a personal jury waiver by the defendant (e.g., State v.

Hauk (Ct.App. 2002) 257 Wis.2d 579, 652 N.W.2d 393, 403-404 ) or addressed a perceived failure to secure a knowing and intelligent waiver of the right to a jury trial (e.g., Duarte-Higareda , supra , 113 F.3d at p. 1003 )-errors that, as we have explained, differ from the one involved here in their magnitude and their susceptibility to harmless error analysis. Nor does State v. Little (Minn. 2014) 851 N.W.2d 878 (Little ) support defendant's position that the mistake here defies harmless error analysis.

In Little , the prosecution added a new charge after defendant entered a jury waiver. (Id ., at p. 881.) The Little court concluded that the earlier waiver did not necessarily encompass the later-added charge. (Id ., at p. 883.) The court nevertheless conducted harmless error review and found the error prejudicial. (Id. , at p. 886.) In finding prejudice, the court emphasized that although the conduct underlying the new charge was the same as that involved with previously charged crimes for which defendant had entered a jury waiver, "the elements to be proved and the penalties are dramatically different." (Id ., at pp. 885-886.) Thus, whereas Little involved no waiver with regard to an added charge that significantly upped the ante of the defendant's trial, here defendant entered a constitutionally adequate jury waiver applicable to all phases of his trial.

The cases therefore diverge in both the magnitude of the errors involved, and the ability of a reviewing court to evaluate what a defendant would likely have done in the absence of the error. Even so, Little applied harmless error analysis to the error before it. The fact that Little identified the error as prejudicial due to uncertainty about that defendant's choice between a jury trial and a bench trial does not support the wholesale rejection of harmless error analysis in this context. Similarly distinguishable is Miller v.

Dormire (8th Cir. 2002) 310 F.3d 600, a federal habeas corpus case, in which a jury waiver was entered by the petitioner's counsel. (Id ., at pp. 601-602.) The petitioner testified at an evidentiary hearing that his attorney never explained the right to a jury trial to him, and "that he would have insisted upon a jury trial had he known he had the right to make such a decision." (Id ., at p. 602.) The prosecution argued that the petitioner could not show prejudice because he could not establish that a jury would have reached a verdict different from the one that resulted from the petitioner's bench trial. (Id. , at p. 604.) The court determined that the attorney's complete failure to counsel his client regarding a jury trial constituted ineffective assistance under the Sixth Amendment to the United States Constitution, and "presumed" that prejudice resulted from this "structural" error. (Miller , at p. 604.) Thus, Miller also involved constitutional error, not statutory error under state law, the petitioner had made a showing of prejudice, and the court's characterization of the error before it as structural connoted its rejection of a form of harmless error analysis that we do not endorse here.

Significantly, after Miller was decided, that same federal appellate circuit rejected another federal habeas corpus petitioner's claim of ineffective assistance of counsel in connection with a jury waiver on the ground that the petitioner had "not established that he would have insisted on a jury trial in any event." (Nelson v. Hvass (8th Cir. 2004) 392 F.3d 320, 324.) We therefore conclude that at least where, as here, a defendant has personally entered a knowing, intelligent, and voluntary jury waiver as to all aspects of his or her trial, Memro error admits of harmless error analysis.

This assessment entails a review of the record to ascertain whether it reveals a reasonable probability that defendant would have opted for a jury trial of the special circumstance allegation, had no Memro error occurred. In undertaking this inquiry, we consider "what the defendant would have done" (Martinez , supra , 57 Cal.4th at p. 558, 160 Cal.Rptr.3d 37, 304 P.3d 529, italics omitted), not what we believe he should have done (id ., at p. 562, 160 Cal.Rptr.3d 37, 304 P.3d 529, italics omitted).

As we explain, on this record we conclude that defendant has not shown that there is a reasonable probability that, had the trial judge expressly referenced the special circumstance allegation in the waiver colloquy or otherwise sought a separate waiver regarding the allegation, defendant would have refused to enter such a waiver, and instead would have sought a jury trial for this aspect of his case. (See Watson , supra , 46 Cal.2d at p. 836, 299 P.2d 243.) Defendant personally entered what we have determined to be a knowing and intelligent jury trial waiver, and did so with the assistance of counsel.

The record reveals no hesitation by defendant in entering the waiver, nor uncertainty or confusion about its scope or consequences, even when the trial judge advised him that it applied "to all issues" in the case. Nor does the record reflect any concern or objection by defendant when the attorneys offered argument to the court concerning the relationship of the evidence adduced at trial to the special circumstance allegation-first in connection with

section 1118 motions, and again in the parties' closing statements-or when the court found the special circumstance allegation to be true. Finally, to the degree such evidence is useful in ascertaining what defendant would have done (see Martinez , supra , 57 Cal.4th at p. 564, 160 Cal.Rptr.3d 37, 304 P.3d 529 ), we perceive nothing in the nature of the allegations or the proof at trial that suggests a basis for seeking a decision maker for the special circumstance allegation different from the one who would decide the charged crimes and penalty.

The proof of the special circumstance allegation was overwhelming, and overlapped with the evidence establishing defendant's guilt of felony murder. In conclusion, because the record before this court on appeal provides no basis for concluding that defendant would have chosen a jury trial for the special circumstance allegation had the trial judge avoided Memro error, we find the error harmless under the Watson standard. B. Penalty Phase Issues 1. Penalty Phase Jury Waiver Issues Defendant also asserts that his waiver of a jury trial for the penalty phase was invalid or incomplete. His argument is twofold.

First, he renews his argument concerning the absence of a knowing and intelligent jury waiver, stressing that the trial judge failed to adequately apprise him of essential features of the penalty phase. Additionally, relying on People v. Hovarter (2008) 44 Cal.4th 983, 81 Cal.Rptr.3d 299, 189 P.3d 300 (Hovarter ), defendant argues that the court was required to reaffirm at the outset of the penalty phase any jury waiver entered prior to trial. These arguments lack merit. a.

Adequacy of the Jury Waiver for the Penalty Phase Under the Federal and State Constitutions Defendant's argument that he did not enter a knowing and intelligent waiver as to the penalty phase is not well taken. As previously related, the trial court's advisement explained to defendant that he had a right to a trial by jury, and discussed two "decisions" that would be made by the court if this right were waived.

First, the court would make "the decision on whether [the] evidence was sufficient to prove ... guilt beyond a reasonable doubt." The court further explained that in the event it made such a finding, the case "would then proceed to a penalty phase" in which the district attorney would present aggravation evidence, defendant would have a right to present mitigation evidence, and it would fall on the court to make "the decision as to the appropriate punishment, which could result in a death penalty sentence." After this explanation, the court asked defendant, "Do you give up your right to a jury trial and agree that this Court, alone, will make those decisions ...?" (Italics added.) Defendant assented.

With the trial court's phrasing leaving no question that defendant's right to a jury trial extended to any penalty phase-at which time the court, if a jury was waived, would make the s

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