The PEOPLE, Plaintiff and Respondent, v. David Scott DANIELS, Defendant and Appellant., 221 Cal. Rptr. 3d 777

Cuéllar, J. The jury lies at the heart of California's criminal justice system and its capital sentencing scheme. Despite the costs and practical burdens associated with juries, the federal Constitution requires safeguards "[t]o protect against inappropriate incursions" on a defendant's exercise or waiver of the fundamental right to a trial by a jury of his or her peers. ( People v. Collins (2001) 26 Cal.4th 297, 307, 109 Cal.Rptr.2d 836, 27 P.3d 726 ( Collins ).) Our state Constitution proclaims that "[t]rial by jury is an inviolate right and shall be secured to all." ( Cal. Const., art.

I, § 16.) And California statutes afford capital defendants the right to a jury trial not only with respect to adjudication of guilt or innocence, but also with respect to determinations regarding special circumstance allegations and the decision to impose the death penalty. (See Pen.

Code, § 190.4, subds. (a), (b) ; all further unmarked statutory references are to the Penal Code.) A criminal defendant is permitted to waive his or her jury trial rights-but only if the record demonstrates the waivers are express, voluntary, knowing, and intelligent. ( Collins , supra , 26 Cal.4th at p. 305, 109 Cal.Rptr.2d 836, 27 P.3d 726.) That proves to be a problem in this case. We, the undersigned, cannot conclude that defendant David Scott Daniels's waivers of jury trial were knowing and intelligent, in compliance with constitutional requirements.

That this error results in unquantifiable prejudice is the reason we would reverse Daniels's guilt convictions, the true findings of special circumstances, and the penalty of death. Our view on this issue, however, does not today command a majority of the court. Thus, we concur in the court's reversal of the penalty of death, while we dissent from the judgment to affirm Daniels's trial convictions and special-circumstance findings.

Because the court reverses the judgment of death, we need not address Daniels's claims challenging specific aspects of his trial relating to his death sentence, or California's death penalty scheme more generally. We analyze Daniels's remaining claims only to the extent they seek to attack his convictions or the special-circumstance determinations. With the exception of Daniels's claim maintaining that his jury trial waiver was invalid, discussed in

part II.D, the court unanimously agrees with the reasoning and resolution of Daniels's claims examined below. I. FACTS A. Guilt Phase Evidence The People presented the following evidence during the guilt phase of trial. Daniels did not present any guilt phase evidence or argument. 1. Armed Robberies and Carjacking From November 26 through December 27, 1999, Daniels committed several armed robberies of businesses in Sacramento.

The robberies proceeded in substantially the same fashion: Daniels would enter a bank or store, pull out a firearm or insinuate that he had a firearm, and demand money from the cash register. On one occasion, Daniels led a customer and a clerk to the back of the store, took $25 from the customer's wallet, and bound the customer's and clerk's necks and faces with cable wire before taking $1,000 dollars from the store's cash register. On January 1, 2000, Daniels approached Gabriel Tover and Lisa Lovado outside a Blockbuster Video in Stockton, holding what looked to be a machine gun or an Uzi.

Daniels pointed his firearm at Tover and demanded the keys to a silver 1995 Chevrolet Camaro; Tover obliged. After also taking Lovado's purse and Tover's wallet, Daniels got into the car and drove off. In connection with these and similar incidents, Daniels pleaded guilty on January 8, 2001, to 11 counts of armed robbery with use of a firearm, one count of carjacking with use of a firearm, and one count of vehicle theft. In addition, Daniels admitted he had suffered two prior strike convictions within the meaning of the Three Strikes Law (§§ 667, subds. (b)-(i), 1170.12). 2.

LeWayne Carolina Homicide Jennifer O'Neal and Daniels were dating and had known each other about four years. At approximately 6:30 p.m. on December 28, 1999, Daniels picked up O'Neal and O'Neal's eight-year-old daughter in his car. O'Neal noticed that Daniels had, under his clothing, a Tec-9 firearm tied around his neck with a shoelace. Daniels told O'Neal he needed the firearm for protection, explaining that he was "on the run" and not going back to prison. Around 8:00 p.m., Daniels, O'Neal, and O'Neal's daughter went to the Ramada Inn on Auburn Boulevard, where O'Neal rented a room.

Daniels made a phone call in the lobby, as well as some calls in the hotel room. Daniels smoked three cocaine cigarettes between approximately 8:00 and 9:30 p.m. Daniels, O'Neal, and O'Neal's daughter left the hotel together by car. They picked up a woman named Marcie, then drove to Martina Daniels's house in South Sacramento where they picked up Martina and her friend Lamar. Lamar recommended a place where Daniels could buy illegal drugs. Daniels drove the car and its passengers to an apartment complex on Mack Road.

He seemed "very high" and "very hyper." His driving was "okay, a little fast, but he was driving normally." When they arrived at the Stonegate apartment complex, Daniels indicated he would be right back, and both he and Lamar exited the car. O'Neal described Daniels's demeanor as "very aggressive" and observed that "he was not in a normal state of mind. He was not rationally thinking." Martina, Marcie, O'Neal, and O'Neal's daughter waited in the car. Around 9:00 p.m. that same evening, Tamarra Hillian arrived to visit Ray Jedkins, a friend of hers from high school, at Jedkins's apartment.

Jedkins's cousin, LeWayne Carolina, was also at the apartment. As Hillian sat in the apartment living room watching television, there was a knock at the door. Jedkins answered the door and spoke with Daniels, who was standing outside, for "a little while" before Jedkins let Daniels inside. Daniels and Jedkins walked into the kitchen and chatted with Carolina before Jedkins returned to the living room. A few minutes later, Daniels walked into the living room and demanded money while pointing a large firearm in Jedkins's direction. Jedkins handed Daniels a wad of money from his pocket.

Then, Hillian heard gunshots and covered her face. Jedkins climbed out the living room window. After the gunshots stopped, Daniels ran out of the apartment. Hillian never saw Daniels point the gun at her or Carolina. After Daniels fled the apartment, Hillian tried to stand up, but her leg crumpled and she fell to the floor. She had been shot in the hand and in the leg. She crawled to the kitchen telephone and saw that Carolina had been fatally shot. As Hillian attempted to dial for help, Jedkins returned to the apartment and called 911.

Sacramento police officers later arrived at the Stonegate apartment complex and collected nine-millimeter and .380 bullet casings from the scene. Forensic pathologist Dr. Gregory Reiber, who performed the autopsy of Carolina, testified that Carolina suffered a fatal gunshot wound to the head and a superficial grazewound on the left side of his back. No soot or gunpowder was found on Carolina's head, indicating that the fatal gunshot was fired from a distance greater than 12 to 18 inches. About 10 minutes after the group had arrived at the apartment complex, Lamar returned alone to the car.

He appeared scared and looked as though he was praying. Daniels returned to the car soon after, holding his left side and gasping for air. Daniels told O'Neal, "I've been shot. That guy shot me." Daniels drove the car away from the apartment complex and back to Martina's house, swerving while appearing to nod off. At Martina's house, O'Neal and the other adults attempted to treat Daniels's bullet wounds on his left arm and left side near his back. Martina saw that Daniels had a gun, one she would identify in court as similar to the nine-millimeter gun found on Daniels at his arrest.

Martina drove Daniels, O'Neal, and O'Neal's daughter back to the Ramada Inn. In the hotel room, Daniels told O'Neal that there were three other men and a woman in the Stonegate apartment. He said a man in the kitchen started shooting, and Daniels had returned fire. Daniels told O'Neal he shot the woman, who had been yelling, and also shot the man sitting on the couch. He said "he would not be taken alive" by law enforcement. While relaying his account of events, Daniels smoked a cocaine cigarette.

Martina observed a smaller gun on the dresser, which Daniels explained he got from the man who shot him in the apartment. 3. LaTanya McCoy Homicide On December 30, 1999, local law enforcement authorities issued an arrest warrant for Daniels for the murder of LeWayne Carolina. On the morning of January 2, 2000, Sacramento Police Detective Michael Kaye was conducting surveillance in front of Martina's house. Around 6:00 a.m., Daniels drove a silver Chevrolet Camaro down the street, making unusual maneuvers before he paused in front of the residence. When the Camaro pulled away, Kaye followed in pursuit.

Kaye broadcasted the Camaro's direction of travel to responding patrol units. Officer Shaunda Davis of the Sacramento Police Department was on patrol, positioned on a nearby road. She activated the patrol car's overhead lights, as did officers in another patrol car, in anticipation of a felony vehicle stop. Daniels initially pulled over, but then drove off at a high speed before the officers could position themselves for a vehicle stop. Fog limited visibility. Police dispatchers were advised that Daniels's car was traveling on Mack Road at speeds up to 100 miles per hour.

Daniels's car weaved in and out of traffic. After passing the intersection of Mack Road and Franklin Boulevard, Daniels's Camaro collided with another car at a minimum of 80 miles per hour. The other car spun across the embankment that divided the roadway and burst into flames. Davis unsuccessfully attempted to remove the driver, LaTanya McCoy, from the burning car. The fire killed McCoy and burned her entire body. The Camaro veered off the road and eventually stopped. Shortly thereafter, several Sacramento City police officers arrived at the scene.

Officer Brian Ellis advised Daniels to put up his hands outside of the vehicle. Daniels raised his left hand but claimed his right hand was stuck. As Sergeant Steven Weinrich reached into the Camaro to extract Daniels, Daniels fired his Tec-9 firearm. Weinrich returned fire and was shot as he retreated behind the car. One bullet was later found lodged in Weinrich's bulletproof vest, while another bullet entered his upper thigh. B. Penalty Phase Evidence 1. Prior Statements by Daniels The penalty trial commenced on January 23, 2001.

The prosecution began its case by introducing statements made by Daniels on January 19, 2000, in which he threatened officers while hospitalized in the surgical intensive care unit. The prosecutor argued that these statements constituted an uncharged violation of

section 69 (obstructing or resisting an officer by means of threat or violence). Sacramento County Sheriff's deputies testified regarding two confiscated letters written by Daniels while in jail in April and June of 2000. In one six-page letter addressed to a woman named Nikki, Daniels stated that he felt responsible for McCoy's death and wished that he had died instead of McCoy. He also wished he had "killed every last one" of the police officers he shot. Daniels wrote he was not afraid to die and preferred death to life in prison.

He stated he knew he would get caught and "that's why [he] robbed every bank an [sic ] store in sight." Included with an 11-page letter from Daniels to his aunt was a printout labeled "Daniels Investigation Time Line," which contained admissions and details of crimes committed between November 16, 1999, and January 1, 2000. The listed offenses included 6 bank robberies, 17 robberies, 2 carjackings, and a shootout with the Turlock Police Department. 2.

Prior Convictions During the guilt phase, Daniels admitted to two prior felony convictions: a January 1986 felony conviction for attempted first degree burglary ( §§ 664, 459 ) and a July 1991 felony robbery conviction (§ 212.5). Daniels understood that those prior pleas could be relevant, admissible evidence for penalty purposes. At the penalty phase, the prosecution introduced certified copies of three prior convictions: a March 1988 felony conviction for possession of a controlled substance ( Health & Saf. Code, § 11350 ); an October 1990 felony conviction for sale of a controlled substance ( Health & Saf.

Code, § 11352 ); and a February 1998 felony conviction for second degree burglary ( § 459 ). Daniels acknowledged he had seen copies of these prior convictions. 3. Uncharged Crimes The prosecution introduced evidence of several uncharged crimes that occurred in December 1999. Specifically, the prosecution elicited a bank teller's testimony regarding Daniels's armed robbery of the Washington Mutual Bank in Stockton on December 11, 1999, and his departure from the bank with about $6,000 in stolen cash.

In addition, business proprietor Vorn Chan and his daughter Junda Chan testified about an armed robbery of Lim's Market in Stockton on December 22, 1999, during which a man took money from the cash register and Vorn's personal effects before driving off in a Toyota pickup owned by Vorn's son-in-law. Neither Vorn nor Junda identified Daniels as the perpetrator of the robbery, but Daniels indicated that he committed a crime at Lim's Market in the printout he had included in the letter to his aunt.

Witnesses testified that on December 30, 1999, Daniels was driving with an unidentified female on the J14 highway in Merced County. After driving off the roadway at a high speed, he exited his car in a daze and appeared "really loopy" and "spaced out." Shantel Little stopped to help. After Daniels approached her with a firearm, Little exited her white Camaro. Daniels and his female passenger entered the Camaro and drove away. Deputy Sheriff Mark Goddard, who was advised by dispatch of the carjacking, observed Daniels in the Camaro and pulled him over.

But once Goddard pulled in from behind, Daniels took off, weaving through traffic at speeds up to 80 miles per hour. Officers from the Turlock Police Department pursued the Camaro until Daniels collided with another car while driving 55 to 60 miles per hour. Daniels got out of the Camaro and fired approximately four to six gunshot rounds at the officers. He then fled on foot while the injured female passenger was arrested. Officers collected discharged shell casings from the scene and later concluded that the casings had been fired from Daniels's Tec-9 firearm.

Jose Campos testified that on the evening of December 30, 1999, Daniels walked into the garage of Campos's home in Turlock with a firearm and asked Campos for his car keys. Campos retrieved his keys from within the house, gave them to Daniels, and returned to his house. When Campos reentered the garage, his car was gone. 4. Statement of Apology Daniels declined to present evidence or deliver a closing argument during the penalty phase trial. He did, however, offer a lengthy apology-expressing deep remorse and sadness-to the Carolina and McCoy families.

Daniels stated that he had "no intention on doing anything" to Carolina. He spoke of being a father to four boys, and apologized in particular to Carolina's father. He "accept[ed] some responsibility for that accident" that killed McCoy. The chance to apologize to the families, he said, "means a lot to me, and I have to live with this for the rest of my life." He also noted that "it took a long time for me to really prepare myself to say this" to the family members. The court would later identify Daniels's statement as potentially mitigating evidence, stating, "During the penalty phase, Mr.

Daniels addressed the families of the victims. At that time, Mr. Daniels did express some remorse for his actions and took some responsibility for the crimes. These facts may constitute a mitigating factor." II. DISCUSSION A. Knowing and Intelligent Waiver of the Right to Counsel Daniels contends that the record does not reflect a valid waiver of the right to counsel.

To wit, he argues that the court did not adequately advise him of the complexities of a capital trial, made no meaningful inquiry into his understanding of the charges and possible defenses, and ignored his comment that he did not view self-representation as a disadvantage. We reject this claim. 1. Background At a court proceeding on April 28, 2000, Daniels asked to speak to the judge. Judge Ransom told Daniels that he had to speak through his lawyer. Daniels responded, "I'm not agreeing with nothing that's going on.

I'm not agreeing with nothing that's going on here-I'm not agreeing with nothing that's going on here." The proceeding terminated without further discussion. In a letter dated December 7, 2000, Daniels advised the court, "I am Respectfully Requesting that I be allowed to withdraw my 'Not Guilty' Plea and enter a 'Guilty Plea.' I am also Requesting that I Be allowed to Represent myself, my feretta [sic ] Rights. I fully understand that I am charged with the Capitol [sic ] offense of Murder penal code

Section 187 with the special circumstances." About two weeks later, on December 20, 2000, Judge Ransom engaged Daniels in a colloquy regarding the benefits of counsel and the drawbacks of self-representation. In response to the court's questioning, Daniels indicated that he knew he had the right to counsel at all stages of the case, he understood that self-representation is "generally not a wise choice" in criminal matters, and he would face the death penalty if convicted.

Further, Daniels acknowledged that the court would not help him present his case or grant him special treatment, he was being opposed by a trained prosecutor, he would be required to comply with all rules of criminal procedure and evidence, he would forfeit a potential ineffective assistance of counsel claim on appeal, he would be removed from the courtroom if he were disruptive, and he had a right to hire his own attorney at any time but the court would not delay proceedings to accommodate attorney preparation.

In response to the court's questioning, Daniels informed the court that he had a high school education and could read and write. He then stated, "I want to exercise my Faretta" and reiterated his wish to represent himself. The court then expressed that it was "satisfied he's doing this knowingly and intelligently," and granted the motion for self-representation. Later that day, Daniels signed a "Record of Faretta Warnings" form, acknowledging that he had been personally advised of various rights which had been discussed during the oral colloquy. Daniels rejected the court's offer to appoint advisory counsel.

The case was subsequently assigned, for all purposes, to Judge Long. At the outset of proceedings on January 5, 2001, Judge Long confirmed that Daniels was representing himself and that Judge Ransom had advised him of the pitfalls of self-representation. Daniels then acknowledged that he had received the amended information in this case. Thereafter, Judge Long arraigned Daniels on the amended information, reading aloud each of the 22 charges and the sentencing enhancements. After reading each charge, the court asked, "Do you understand the charges?" Daniels responded affirmatively as to each charge.

While arraigning Daniels on counts 12 and 21, the special-circumstance murder counts, Judge Long informed him that these were serious felonies. The court explained that, as to these charges, if Daniels were found guilty of these charges, the case would proceed to a penalty phase where the People would seek the death penalty. Daniels said he understood. After the court finished reading all the charges, the following colloquy transpired: "THE COURT: Sir, did you understand all those charges? "MR. DANIELS: Yes, sir.

"THE COURT: Are there any questions you need to ask me relating solely to the nature of the charges that the People of the State of California have filed against you? "MR. DANIELS: No, sir." Thereafter, by asking a series of yes or no questions, Judge Long warned Daniels about the dangers of self-representation. Despite the fact that the judge informed Daniels that the prosecutor in this case was "one of the experts in this county in prosecuting" death penalty cases, Daniels expressed his desire to continue self-representation.

During this colloquy, the following exchange occurred: "THE COURT: You understand that these are very, very serious matters and that whatever your legal training is and I don't know what it is, I'm going to get into that, that you, sir, are placing yourself at a severe disadvantage? Do you understand that? "MR. DANIELS: Yes, your Honor. I don't look at it as a disadvantage. "THE COURT: You do not look at it as a disadvantage? "MR. DANIELS: No.

"THE COURT: All right...." Judge Long reminded Daniels that he would be held to the standards of a lawyer, the court could not assist him in any way, the consequences of self-representation were "enormous" in this case, it is "never wise" for an unskilled person to represent himself, and that "it is said that he who represents himself is a fool." Judge Long asked Daniels if he understood that "it could get so bad in here based upon your lack of skill and you may have skill, that if this were a professional [sporting] event in the legal sense, it might be like a flag football team going up against the Tennessee Titans?" Daniels responded, "I hear you." Daniels stated he understood that he would not be able to raise the issue of counsel's competence on appeal.

As part of his analysis of Daniels's decision to exercise his right to self-representation, Judge Long made several inquiries about Daniels's mental state that day. Daniels responded that he was thinking clearly, he knew what he was doing, he was taking Neurontin for nerve damage in his hand but the medication was not interfering with his choice to represent himself, and that he was not under the effect of any substance that would cloud his judgment.

In response to the court's questioning, Daniels stated that he was 33 years old, could read and write, had graduated from high school, and had been employed "off and on" as a mailroom clerk-a job which required reading and understanding documents. He also stated that no threats had been made against him or his family members in connection with his decision, nor had he been subject to any force or pressure influencing him to represent himself.

When the court asked Daniels to state, in his own words, the potential penalty he would be facing if found guilty and the special circumstances found true, Daniels replied, "I could be put to death." This exchange followed: "THE COURT: Are there other areas that you think I need to explore at this time? Oh, and further, if you did want a lawyer, do you understand that I would appoint a lawyer for you and give you what additional time you need to prepare for this trial? Do you understand that? "MR. DANIELS: Yes, I do. "THE COURT: And even with that offer, you still want to represent yourself and proceed to trial?

"MR. DANIELS: Yes, your Honor." Daniels again declined advisory counsel. Following a 15-minute recess for Daniels to reflect on his decision, the court concluded its advisements and ruled on Daniels's Faretta motion: "THE COURT: All right. We are again on the record. Mr. Daniels, have you had an opportunity to think about, you know, the colloquy we have gone through relative to you representing yourself? "MR. DANIELS: Yes. "THE COURT: Now, let me ask you this: You have told me that you understand the nature of all these charges and what could happen to you, right? "MR. DANIELS: Yes, I understand.

"THE COURT: And if you wish to present a defense, that is kind of like up to you, but if you wish to do that, your mind is clear and your thoughts and you understand the charges where if you wish to do that, you feel you could do that? "MR. DANIELS: Yes, I do. "THE COURT: You do? "MR. DANIELS: Yes, I do. "THE COURT: All right. Is there anything else? "[THE PROSECUTOR]: No, your Honor, not on that issue. "THE COURT: All right. The Court makes findings as follows: One, the defendant, Mr.

Daniels, is competent, he understands the nature of the charges, he understands and represents that his mind is clear whereby if he wished to present a defense, he would know how to do that to these charges. [¶] The Court also finds that Mr. Daniels understands and is aware of the risk and dangers of representing himself, and I further find that he is waiving his right to a lawyer and proceeding to trial by way of self-representation. And I find that this choice for him to represent himself is done knowingly, freely, and intelligently, and without any force or coercion.

The Court then will grant you your right to represent yourself." Daniels signed a record of Faretta warnings in open court and affirmed that he understood the warnings contained in the document. 2. Analysis Daniels argues the court failed to meaningfully inquire into his understanding of the charges. The record contains no indication that Daniels ever discussed the risks of self-representation with counsel. Daniels asserts that neither Judge Ransom nor Judge Long inquired as to Daniels's legal experience or informed him of the complexities of trial.

Further, Judge Long did not address Daniels's statement that he did not view self-representation to be disadvantageous. As established by the high court in Faretta , a defendant has a federal constitutional right to the assistance of counsel during all critical stages of a criminal prosecution. ( Faretta v. California (1975) 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 ( Faretta ); United States v.

Wade (1967) 388 U.S. 218, 223-227, 87 S.Ct. 1926, 18 L.Ed.2d 1149.) A defendant may nonetheless waive this right and personally represent himself or herself, as long as the defendant's waiver of the right to counsel is valid. An effective waiver requires that the defendant possess the mental capacity to comprehend the nature and object of the proceedings against him or her, and waive the right knowingly and voluntarily. ( People v. Koontz (2002) 27 Cal.4th 1041, 1069, 119 Cal.Rptr.2d 859, 46 P.3d 335 ( Koontz ); Godinez v.

Moran (1993) 509 U.S. 389, 401, fn. 12, 113 S.Ct. 2680, 125 L.Ed.2d 321.) There is no prescribed script or admonition that trial courts must use to warn a defendant of the perils of self-representation. But the record as a whole must establish that the defendant understood the "dangers and disadvantages" of waiving the right to counsel, including the risks and intricacies of the case. ( People v. Blair (2005) 36 Cal.4th 686, 708, 31 Cal.Rptr.3d 485, 115 P.3d 1145 ; People v.

Burgener (2009) 46 Cal.4th 231, 241, 92 Cal.Rptr.3d 883, 206 P.3d 420.) If a defendant validly waives the right to counsel, a trial court must grant the request for self-representation. ( People v.

Welch (1999) 20 Cal.4th 701, 729, 85 Cal.Rptr.2d 203, 976 P.2d 754.) We review a Faretta waiver de novo, examining the entire record to determine the validity of a defendant's waiver. ( Koontz , at p. 1070, 119 Cal.Rptr.2d 859, 46 P.3d 335.) In determining the validity of a trial court's decision to permit the exercise of a defendant's Faretta right, we have treated the suggested advisements and inquiries set forth in People v.

Lopez (1977) 71 Cal.App.3d 568, 138 Cal.Rptr. 36 ( Lopez ) as a useful reference for courts to ensure the knowing and voluntary waiver of counsel. ( Koontz , supra , 27 Cal.4th at pp. 1070-1073, 119 Cal.Rptr.2d 859, 46 P.3d 335.) Lopez suggests the court provide advisements falling into three general categories: (1) ensuring the defendant's awareness of the " 'dangers and disadvantages' " associated with self-representation; (2) inquiring into the defendant's intellectual capacity; and (3) informing the defendant that he or she cannot later claim inadequacy of representation. ( Lopez , at pp. 572-574, 138 Cal.Rptr. 36.) Here, the record demonstrates that Daniels was-orally and in writing-sufficiently advised of the benefits of counsel and warned about the pitfalls of self-representation in accordance with Lopez 's guidance.

First, Daniels was made thoroughly aware of the " 'dangers and disadvantages of self-representation.' " ( Lopez , supra , 71 Cal.App.3d at p. 572, 138 Cal.Rptr. 36.) The court advised him that it is "never wise" for an unskilled person to represent oneself. The court also told him that it would not grant him any special treatment, and he would be subject to the same standards expected of an attorney.

Judge Ransom and Judge Long both emphasized to Daniels that he would be opposed by a trained prosecutor, whom Judge Long described as "one of the experts in this county in prosecuting [death penalty] cases." Judge Long analogized the expected disparity in lawyering skills to "a flag football team going up against the Tennessee Titans." Daniels signed a "Record of Faretta Warnings" form, attesting that he had been advised of the court's oral admonitions-including that he had the right to counsel at all stages of the case; it is generally "not a wise choice" to represent oneself in a criminal matter; he would not receive any special treatment from the court; and he would be required to comply with all rules of criminal procedure and evidence just like an attorney would.

Finally, Daniels was twice provided a form explaining his library privileges as a self-represented inmate. Daniels orally acknowledged that he had read and considered the court order regarding in propria persona privileges. The record reveals that the court amply advised Daniels of the dangers and disadvantages of self-representation. Second, the court conducted an inquiry into Daniels's intellectual capacity, as recommended in Lopez . Both Judge Ransom and Judge Long asked about Daniels's education level. Daniels stated that he had a high school education and could read and write.

He told the court that he had previously been employed "off and on" as a mailroom clerk, a job which required that he read and understand documents. The court also ensured that Daniels was made aware of his right to counsel. (See Lopez , supra , 71 Cal.App.3d at p. 573, 138 Cal.Rptr. 36.) Specifically, Daniels was informed of his right to appointed counsel, if he could not afford his own, throughout the entirety of proceedings. Daniels rejected the court's multiple offers to appoint advisory counsel and a defense investigator, and he later confirmed that he did not desire such assistance.

The court read aloud all 22 charges from the amended information and confirmed, after each offense, that Daniels understood the charge just read. Daniels acknowledged that he could be put to death if he were found guilty and the special circumstances found true. Daniels was informed that if he were disruptive, he would be removed from the courtroom and an attorney would be brought in to complete the case on his behalf.

We reject Daniels's argument that the court's inquiry was inadequate because it did not review the elements of the charges, possible defenses, or possible punishments besides the death penalty-or confirm that counsel had done so with Daniels. Although an "exploration into ... possible defenses and possible punishments" may be useful to help a defendant understand "just what he is getting himself into" ( Lopez , supra , 71 Cal.App.3d at p. 573, 138 Cal.Rptr. 36 ), it is not required for a knowing and intelligent waiver of counsel under Faretta . (See also People v.

Riggs (2008) 44 Cal.4th 248, 277, 79 Cal.Rptr.3d 648, 187 P.3d 363 ["The trial court is not required to ensure that the defendant is aware of legal concepts such as the various burdens of proof, the rules of evidence, or the fact that the pursuit of one avenue of defense might foreclose another...."]; People v.

Joseph (1983) 34 Cal.3d 936, 939-944, 196 Cal.Rptr. 339, 671 P.2d 843 [less extensive colloquy in capital case revealed that waiver was knowing and intelligent, rendering denial of self-representation request reversible error].) Further, Daniels told the court that he understood the nature of all the charges against him. Daniels's waiver was not defective simply because the court did not define offense elements, such as premeditation or malice aforethought, or review potential defenses.

Despite the absence of direct questions by Judge Ransom about Daniels's mental competence, Daniels points to nothing in the record that would have raised a question about his competence. (See Lopez , supra , 71 Cal.App.3d at p. 573, 138 Cal.Rptr. 36 ["If there is any question in the court's mind as to a defendant's mental capacity ... a rather careful inquiry into that subject should be made" (italics added) ].) Moreover, Judge Long did inquire about Daniels's present mental health and whether Daniels was "thinking clearly." In response to questioning, Daniels indicated that he was thinking clearly, knew what he was doing, and was not under the effect of any substance that would cloud his judgment.

The court made an express finding that Daniels was competent to waive his right to counsel. The record as a whole supports the court's conclusion. Daniels stated that he did not view self-representation as a disadvantage. "All right," replied the court, without asking why Daniels felt this way. If Daniels's statement had conveyed some understanding that his waiver of counsel was conditional, the court would have been obligated to accept the condition or else deem the waiver ineffective. (See People v.

Carter (1967) 66 Cal.2d 666, 670, 58 Cal.Rptr. 614, 427 P.2d 214 ["waiver of counsel which is made conditional by a defendant cannot be effective unless the condition is accepted by the court"].) But Daniels's statement does not divulge a conditional waiver, such as one contingent upon the receipt of some undisclosed benefit.

In light of the court's admonitions, Daniels's statement at most reflects his personal preference to control his own defense-which, no matter how ill-advised, he was entitled to do under Faretta . (See Faretta , supra , 422 U.S. at p. 834, 95 S.Ct. 2525 ["the defendant ... must be free personally to decide whether in his particular case counsel is to his advantage"].) Accordingly, Daniels fails to persuade that the court had a duty to clarify what Daniels meant, or else invalidate the waiver.

Third, Daniels was informed by both Judge Ransom and Judge Long that, if he chose to represent himself, he could not later claim inadequacy of representation. (See Koontz , supra , 27 Cal.4th at p. 1071, 119 Cal.Rptr.2d 859, 46 P.3d 335, citing Lopez , supra , 71 Cal.App.3d at p. 574, 138 Cal.Rptr. 36.) Daniels also raises an argument unrelated to the sufficiency of the court's admonitions.

He insists that, because his written request to represent himself was coupled with a request to plead guilty, it should have been apparent to the court that Daniels was trying to circumvent the statutory limitation on his ability to plead guilty. Daniels argues that the court should have sua sponte appointed additional counsel or determined whether Daniels was able to negotiate a plea that would not have subjected him to the death penalty. We are not aware of any binding authority-nor has Daniels identified any-that would have required the court to take such action.

There is no dispute that Daniels's express waiver of counsel was voluntary. Considering the record as a whole, we conclude that Daniels's counsel waiver was also knowing and intelligent, and therefore valid. B. Self-Representation in Violation of

Section 1018 and the Eighth and Fourteenth Amendments Representing himself, Daniels expressly waived the right to a trial by jury. At trial, he did not present any evidence or argument, did not raise any objections, and did not conduct cross-examination. Daniels argues that his actions at trial were tantamount to a guilty plea in violation of

section 1018, and that the proceedings were insufficiently reliable so as to violate the Eighth and Fourteenth Amendments to the United States Constitution. He seeks reversal of the murder convictions and the special-circumstance findings. For reasons elucidated below, this claim is one we reject. 1. Background At a court appearance on April 28, 2000, Daniels asked to speak with the judge. Judge Ransom informed Daniels that he would need to speak through his lawyer. In response, Daniels stated, "I'm not agreeing with nothing that's going on.

I'm not agreeing with nothing that's going on here-I'm not agreeing with nothing that's going on here." On August 7, 2000, at a proceeding to set a date for Daniels's preliminary hearing, Daniels told Judge Ransom that he wished to plead guilty. Daniels's counsel confirmed that Daniels was facing the death penalty for these charges. The court informed Daniels that he was not permitted to plead guilty without his counsel's consent; the court then entered Daniels's plea of not guilty.

On August 23, 2000, in response to the court's request that Daniels waive his right to a continuous preliminary hearing so that the court could start later the next day, Daniels told the court, "[I'm] willing to waive all my rights ... and go no further in the matter." The next day, after Daniels was held to answer, he repeated his desire to plead guilty. The court asked counsel if, "in light of the seriousness of the offense," he wished to enter pleas of not guilty and denials of enhancements on behalf of Daniels; counsel replied in the affirmative.

At Daniels's arraignment a week later, the court refused Daniels's request to address the court in private after the court asked Daniels whether he wanted counsel. In a letter dated December 7, 2000, Daniels wrote to Judge Ransom: "I am Respectfully Requesting that I be allowed to withdraw my 'Not Guilty' Plea and enter a 'Guilty Plea.' I am also Requesting that I Be allowed to Represent myself, my feretta [sic ] Rights. I fully understand that I am charged with the Capitol [sic ] offense of Murder penal code

Section 187 with the special circumstances." He enclosed a partially completed fill-in-the-blank Faretta motion form. On December 20, 2000, the court granted Daniels's request to represent himself, though it advised Daniels that, even if he was self-represented, he could not "plead guilty to a death penalty case and get the death penalty." The case was reassigned from Judge Ransom to Judge Long for all purposes on January 5, 2001. Despite Judge Ransom's prior admonition, Daniels again attempted to plead guilty to all charges.

The court prohibited Daniels from pleading guilty to the murders and related counts (counts 12-16, 20-22), but allowed him to enter guilty pleas to all other counts that had not been dismissed. Daniels waived his right to a jury trial and agreed to have Judge Long decide guilt and penalty. At trial, which lasted two days, the prosecution presented the testimony of 27 witnesses and entered 90 exhibits in evidence. Daniels asked no questions of any witness, raised no objections, presented no witnesses or evidence, and made no argument in his defense.

On review, Daniels argues that-by waiving counsel and jury trial and then failing to present any defense-he effectively pleaded guilty without consent of counsel, in violation of

section 1018. He contends that because his conviction obtained in violation of

section 1018, it must be reversed. Moreover, Daniels asserts that reversal is warranted because the proceedings below lacked the reliability required by the Eighth and Fourteenth Amendments. 2. Analysis

Section 1018 provides, in relevant part: "No plea of guilty of a felony for which the maximum punishment is death, or life imprisonment without the possibility of parole, shall be received from a defendant who does not appear with counsel, nor shall that plea be received without the consent of the defendant's counsel." In 1973, the Legislature amended the statute to add the requirement that defense counsel consent to a guilty plea in capital cases. (Stats. 1973, ch. 719, § 11, p. 1301.) We have recognized this amendment to be a component in an overhaul of California's death penalty laws, following the high court's decision in Furman v.

Georgia (1972) 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, in an effort to eliminate arbitrariness in the imposition of the death penalty. (See People v. Chadd (1981) 28 Cal.3d 739, 750, 170 Cal.Rptr. 798, 621 P.2d 837 ( Chadd ).) The consent of counsel requirement is rooted "in the state's strong interest in reducing the risk of mistaken judgments in capital cases and thereby maintaining the accuracy and fairness of its criminal proceedings." ( People v.

Alfaro (2007) 41 Cal.4th 1277, 1300, 63 Cal.Rptr.3d 433, 163 P.3d 118 ( Alfaro ).) Daniels informed the court several times, during various pretrial proceedings, that he wished to plead guilty to all charges, but the court told him that he could not do so under

section 1018. After counsel refused to consent to his pleading guilty, Daniels waived counsel and opted to represent himself. Even thereafter, the court did not permit Daniels to plead guilty to the murder charges or related counts; those charges thus proceeded to trial. Daniels argues that his own inaction at trial-his failure to cross-examine any prosecution witnesses, raise objections, and present evidence and argument in his defense-was tantamount to a "slow plea of guilty" in violation of

section 1018. A "slow plea" is an " 'agreed-upon disposition ... which does not require the defendant to admit guilt but results in a finding of guilt ... usually, for a promised punishment.' " ( People v. Wright (1987) 43 Cal.3d 487, 496, 233 Cal.Rptr. 69, 729 P.2d 260, quoting People v.

Tran (1984) 152 Cal.App.3d 680, 683, fn. 2, 199 Cal.Rptr. 539.) One of the clearest examples of a slow plea is "a bargained-for submission on the transcript of a preliminary hearing in which the only evidence is the victim's credible testimony, and the defendant does not testify and counsel presents no evidence or argument on defendant's behalf." ( Wright , at p. 496, 233 Cal.Rptr. 69, 729 P.2d 260.) Where the agreed-upon procedures become tantamount to a guilty plea, a court commits reversible error if it fails to secure the constitutional and statutory safeguards entailed by a plea. (See Tran , at pp. 684-685, 199 Cal.Rptr. 539.) For the purpose of addressing this claim, we assume-but do not decide-that a "slow plea" qualifies as a "plea" within the meaning of

section 1018. Daniels argues that the "truncated, non-adversarial proceedings" of this case do not advance

section 1018's constitutional and policy purposes of ensuring reliable judgments in capital cases. But a trial, even one where a defense is voluntarily forgone, is fundamentally different from a guilty plea. In the proceedings below, the state was put to its burden of proof as to the murder charges and related counts. A plea, on the other hand, "serves as a stipulation that the People need introduce no proof whatever to support the accusation" and " 'is itself a conviction.' " (Chadd , supra , 28 Cal.3d at p. 748, 170 Cal.Rptr. 798, 621 P.2d 837.) Moreover, a guilty plea severely limits the right to appeal. (See ibid. )

Section 1018 is reflective of the state's interest in reducing the risk of mistaken judgments, an interest that is particularly pronounced in the context of guilty pleas. (See id. at pp. 751-753, 170 Cal.Rptr. 798, 621 P.2d 837.) A submission "is defined by the rights a defendant surrenders." ( People v.

Robertson (1989) 48 Cal.3d 18, 40, 255 Cal.Rptr. 631, 767 P.2d 1109.) The essential components of a submission amounting to a slow plea are the waiver of trial by jury, the waiver of the right to confront witnesses, and the waiver of the privilege against self-incrimination. (See id. at pp. 39-40, 255 Cal.Rptr. 631, 767 P.2d 1109 ; see also Chadd , supra , 28 Cal.3d at p. 748, 170 Cal.Rptr. 798, 621 P.2d 837 [one of the consequences of a guilty plea is that it "strips the defendant of ... the privilege against self-incrimination, the right to a jury, and the right of confrontation"].) Here, there is no indication that Daniels's waiver of jury trial was the consequence of any negotiated agreement concerning the disposition, punishment, or evidence to be presented in the case.

Further, Daniels never surrendered his right to confront witnesses or otherwise challenge the prosecution's evidence at trial; he simply elected not to do so. He also preserved his privilege against self-incrimination by declining to testify throughout trial. In addressing Daniels's argument regarding the nature of proceedings in his case, we find instructive People v. Sanders (1990) 51 Cal.3d 471, 273 Cal.Rptr. 537, 797 P.2d 561. There, the defendant, who was represented by counsel, claimed that his decision not to present evidence at the penalty phase of trial was tantamount to a guilty plea in violation of

section 1018. ( Id. at p. 527, 273 Cal.Rptr. 537, 797 P.2d 561.) We rejected this argument, finding that

section 1018 did not govern, in part because the defendant's "choice did not amount to an admission that he believed death was the appropriate penalty, nor did he give up his right to confront or cross-examine those testifying against him at the penalty phase." ( Ibid. ) We found

section 1018's scope not so broad as to encompass the defendant's choice to not participate in his trial. ( Ibid. ) Daniels's argument does not persuade us that the trial court should have appointed counsel after realizing that Daniels intended to forgo presentation of any trial defense.

In affirming the Sixth Amendment's right of self-representation upon a knowing and intelligent waiver of the right to counsel, the high court stated, "The right to defend is personal.... [A]lthough [the defendant] may conduct his own defense ultimately to his own detriment, his choice must be honored out of 'that respect for the individual which is the lifeblood of the law.' [Citation.]" ( Faretta , supra , 422 U.S. at p. 834, 95 S.Ct. 2525.) We have held that "a capital defendant representing himself under Faretta has no duty to 'present a defense' but may simply 'put the state to its proof.' " ( Chadd , supra , 28 Cal.3d at p. 750, fn. 7, 170 Cal.Rptr. 798, 621 P.2d 837, quoting People v.

Teron (1979) 23 Cal.3d 103, 115, 151 Cal.Rptr. 633, 588 P.2d 773.) Daniels is correct to emphasize the significance of

section 1018's prohibition against guilty pleas in capital cases. But his refusal to participate in his defense at trial did not amount to a slow plea in violation of

section 1018. Further, we reject his related claims that the nonadversarial nature of the proceedings below rendered the judgment unreliable in violation of the Eighth and Fourteenth Amendments to the United States Constitution. "[T]he high court has never suggested that this heightened concern for reliability requires or justifies forcing an unwilling defendant to accept representation or to present an affirmative penalty defense in a capital case." ( People v.

Bloom (1989) 48 Cal.3d 1194, 1228, 259 Cal.Rptr. 669, 774 P.2d 698 ( Bloom ).) Indeed, such a requirement-which hinges solely on a defendant's behavior -would produce perverse incentives, encouraging defendants who wish to avoid the death penalty to decline to present any defense, knowing that their sentence will be reversed on appeal. (See id. at p. 1227, 259 Cal.Rptr. 669, 774 P.2d 698.) In the instant case, the prosecution discharged its burden of proof during the guilt and special-circumstance phases. The judgment does not violate the reliability requirements of the Eighth and Fourteenth Amendments. C.

Waiver of Counsel in Violation of

Section 686.1 Daniels also contends the trial court erred under

section 686.1 by failing to deny Daniels's Faretta motion. When Daniels's waiver of counsel was accepted, he had already expressed to the court his desire to plead guilty to all charges and had repeatedly declined advisory counsel and an investigator. Daniels argues that his passivity throughout the proceedings undermined the fairness and reliability of the judgment, such that his right to self-representation should have been subordinated or revoked based on recognized limits of the high court's Faretta decision and Eighth Amendment reliability requirements in capital cases.

Section 686.1 requires defendants in capital cases to be represented by counsel during all stages of the preliminary and trial proceedings. This provision predates the high court's decision in Faretta and may only be applied where Faretta is not implicated. (See People v. Johnson (2012) 53 Cal.4th 519, 526, 136 Cal.Rptr.3d 54, 267 P.3d 1125 [explaining that post- Faretta , " Penal Code

section 686.1... cannot be given effect"].) We acknowledge the importance of ensuring proceedings are fair and " 'appear fair to all who observe them.' " ( Indiana v. Edwards (2008) 554 U.S. 164, 177, 128 S.Ct. 2379, 171 L.Ed.2d 345.) But once a court determines that a competent defendant has knowingly and voluntarily asserted the right to self-representation under Faretta , the court is not authorized to revoke that right in an attempt to ensure that the defense case meets some minimum level of effectiveness.

The "likelihood or actuality of a poor performance by a defendant acting in propria persona" does not defeat the right of self-representation. ( People v. Taylor (2009) 47 Cal.4th 850, 866, 102 Cal.Rptr.3d 852, 220 P.3d 872.) We reject Daniels's argument that the Eighth Amendment's requirements outweigh an individual's interest in self-representation merely because a defendant has chosen not to participate in the defense.

Even where a defendant fails to present any defense or potentially mitigating evidence, the Eighth Amendment's requirement of reliability in death judgments is sufficiently attained " 'when the prosecution has discharged its burden of proof ... pursuant to the rules of evidence and within the guidelines of a constitutional death penalty statute, the death verdict has been returned under proper instructions and procedures, and the trier of penalty has duly considered the relevant mitigating evidence, if any, which the defendant has chosen to present.' " ( People v.

Mai (2013) 57 Cal.4th 986, 1056, 161 Cal.Rptr.3d 1, 305 P.3d 1175, quoting People v. Bradford (1997) 15 Cal.4th 1229, 1372, 65 Cal.Rptr.2d 145, 939 P.2d 259 ; see also Bloom , supra , 48 Cal.3d at 1228, 259 Cal.Rptr. 669, 774 P.2d 698.) We are not persuaded that Daniels's contentions warrant reconsideration of prior decisions by this court. The trial court committed no error in violation of

section 686.1. D. Knowing and Intelligent Waiver of the Right to a Jury Trial Daniels also asserts that the record does not reflect valid waivers of the right to a jury trial in favor of a bench trial. As we explain below, we would find this claim meritorious because the record fails to demonstrate his knowing and intelligent waiver. We find such error to be structural, requiring reversal of Daniels's convictions on all counts tried. 1. Background On December 20, 2000, Judge Ransom engaged Daniels in a Faretta colloquy and found that Daniels's decision to represent himself was knowing and intelligent.

Immediately after accepting Daniels's counsel waiver, the court asked if Daniels wanted to confirm the jury trial date, to which Daniels responded, "Yes. Keep it the same date for jury." On January 5, 2001, Daniels appeared, self-represented, before Judge Long. Judge Long provided Daniels with further admonitions about the waiver of counsel.

Then, the court accepted Daniels's waiver of his right to trial by jury in favor of a court trial as reflected in the following colloquy: "THE COURT: The other question I think I might raise with you is do you intend to proceed in terms of the guilt phase, and if there is a penalty phase, by way of a jury trial or by way of a court trial? "MR. DANIELS: Court trial. "THE COURT: Are you satisfied that that's what you want to do? "MR. DANIELS: Yes.

"THE COURT: Do you understand that you have an absolute right to proceed by way of jury trial both in the guilt phase and at penalty phase, if there is a penalty phase, if you want to do that? Do you understand me? "MR. DANIELS: Yes. "THE COURT: What you are telling me then is that you wish to waive your right to a jury trial in the guilt phase and in the penalty phase which basically means if there is [sic ] two phases, you will not have a jury determine your fate, but rather the Court will make certain findings based upon what you have been charged with? Do you understand that? "MR. DANIELS: I understand.

"THE COURT: And more specifically in the posture that we are presently in, that I will be the Judge that will make those determinations. Do you understand that? "MR. DANIELS: I understand. "THE COURT: Do you understand that if you go by way of the court trial rather than jury trial, I will decide whether the prosecution has proven its case beyond a reasonable doubt in the guilt phase of the trial, it will be my job to determine whether you are guilty or not guilty of the charges and allegations made against you? Do you understand that? "MR. DANIELS: I understand.

"THE COURT: Do you understand that I will determine whether the special circumstances are true or not true? Do you understand that? "MR. DANIELS: Yes. "THE COURT: Do you understand if I find you guilty of murder, of special circumstances, in the guilt phase of the trial, I will also determine whether the punishment is life without the possibility of parole or the death penalty in the penalty phase of the trial? You understand that? "MR. DANIELS: Yes, I understand. "THE COURT: Have you understood everything that I have told you relative to your right to proceed by way of jury trial or by way of court trial? "MR.

DANIELS: Yes. "[THE PROSECUTOR]: If I could just interject one thing. You did touch on it, but he would also have the right to have the jury determine the truth or not truth of the special circumstances. I think you did mention that. "THE COURT: Yes. If you waived jury, then the jury will not determine the truth and validity of the special circumstances, that will be my job to determine whether they are true or not true. Do you understand that? "MR. DANIELS: I understand.

"THE COURT: Now, in terms of waiving your right to jury trial in both the guilt and if there is a penalty phase, that phase also, are you doing this of your own free will? "MR. DANIELS: Yes. "THE COURT: Have any threats been made against you or any members of your family to get you to waive your right to a jury trial? "MR. DANIELS: No. "THE COURT: Have you been subject to any force to get you to waive your right to a jury trial? "MR. DANIELS: No.

"THE COURT: Is there some consideration or secret promise or deal or something that I am not aware of that's making you or forcing you to waive your right to jury trial and proceed by way of court trial? "MR. DANIELS: No. "THE COURT: Are you presently under the influence of any substance that would cause you not to be able to think clearly? "MR. DANIELS: No. "THE COURT: Do you know what you are doing? "MR. DANIELS: Yes. "THE COURT: All right. Do the People join, also? "[THE PROSECUTOR]: Yes.

"THE COURT: Also in the waiver of jury trial rights as to the guilt phase and also if there is a penalty phase, that the People waive their right to a jury trial in the penalty phase? "[THE PROSECUTOR]: Yes, People join. "THE COURT: All right. Do you know what you have just done, sir? "MR. DANIELS: Yes. "THE COURT: All right. The Court finds that Mr. Daniels understands and freely and voluntarily waives his right to jury trial and has elected to proceed by way of court trial in the guilt phase and also by way of court trial in the penalty phase if, in fact, there is a penalty phase.

And these waivers are now made part of the records of this Court." The record contains no jury waiver form, and there is no indication that one was ever signed by Daniels. During the afternoon session of that January 5th proceeding, Daniels-still self-represented-stated his intent to plead guilty to the noncapital counts and to enter pleas admitting the truth and validity of two prior convictions. In preparation for accepting these pleas, the court obtained oral waivers of Daniels's constitutional rights, including the right to jury trial, as shown in the following exchange: "THE COURT: All right.

You have the right to a jury trial. Do you understand that? "MR. DANIELS: Yes. "THE COURT: Do you realize that by pleading guilty or admitting the truth and validity of the prior felony convictions alleged against you, you will give up your right to a jury trial as to these matters? "MR. DANIELS: Yes. "THE COURT: And do you give your right up to a jury trial as it pertains to these matters? "MR. DANIELS: I do." On January 16, 2001, the court began a bench trial on the remaining charges. Before the prosecutor began his first examination, the court sought to confirm Daniels's decision to waive jury trial.

In doing so, the court said to Daniels, "We also talked about your right to a jury trial with members of these communities that would determine whether or not-the question of guilt or innocence. [¶] Do you remember that?" Daniels responded yes. He reaffirmed his desire to waive trial by jury for both the guilt and penalty phases. At the start of the penalty phase, the court again informed Daniels that he had a right to have a jury to try the penalty phase, and the court would empanel a jury to determine penalty if he so chose. Daniels still wished to proceed by court trial. 2.

Analysis The record demonstrates Daniels personally and expressly waived a jury trial regarding guilt, special circumstances, and penalty. This Daniels does not deny, and indeed, the record reveals no equivocation in his request to waive a jury for all phases of trial. He makes no claim that his waiver was coerced or otherwise involuntary. What Daniels instead contends is that his waiver was infirm because the record does not demonstrate he made his waiver with full awareness of the nature of the right being relinquished.

The court, he contends, did not inform him that a jury would be comprised of 12 impartial members who must reach a unanimous verdict, nor did it explain the consequences of a hung jury. The record contains no indication that counsel discussed the jury trial right during the course of representation, and Daniels asserts that he received no advisements from counsel regarding this right. Under both the federal Constitution and the California Constitution, a defendant in a criminal prosecution is guaranteed the right to a jury trial. ( People v.

Weaver (2012) 53 Cal.4th 1056, 1071, 139 Cal.Rptr.3d 355, 273 P.3d 546 ( Weaver ).) Nonetheless, as enshrined in our state Constitution, 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 court may not accept a defendant's waiver of a jury trial unless the waiver "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.' " ' " ( Collins , supra , 26 Cal.4th at p. 305, 109 Cal.Rptr.2d 836, 27 P.3d 726.) We uphold the validity of a jury waiver " 'if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.' " ( Collins , supra , 26 Cal.4th at p. 310, 109 Cal.Rptr.2d 836, 27 P.3d 726, italics added.) We do not start with a presumption of validity that may only be rebutted by signs of a defendant's confusion or unwillingness in entering a waiver.

Instead, a reviewing court satisfies itself of a legitimate waiver only when the record affirmatively demonstrates it was knowing and intelligent. Our inquiry into the totality of the circumstances requires us to take nuanced account of the full set of relevant facts in this case. (See Adams v. U.S. ex rel.

McCann (1942) 317 U.S. 269, 278, 63 S.Ct. 236, 87 L.Ed. 268 ( Adams ) ["[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."].) In our prior cases, we have assessed whether a knowing and intelligent waiver was given by examining factors such as the nature of the colloquy prior to the court's acceptance of a waiver, the presence of counsel and references to discussions between the defendant and counsel regarding the jury right, and the existence and contents of a written waiver.

For instance, this court has upheld an express jury waiver made "with counsel's consent and agreement" where other circumstances bolstered the conclusion that defendant's waiver was knowing and intelligent. ( People v.

Cunningham (2015) 61 Cal.4th 609, 637, 189 Cal.Rptr.3d 737, 352 P.3d 318.) In Cunningham , the represented defendant received "a full explanation from the court of the right and the consequences of the waiver." ( Ibid. ) The defendant expressly acknowledged, moreover, that "(1) he had an absolute right to a jury trial in both the guilt and penalty phases of his trial, (2) in a jury trial, if one of the 12 jurors was not convinced beyond a reasonable doubt that defendant was guilty, the jury could not return a guilty verdict, (3) if he waived his right to a jury trial, instead of 12 people deciding the issue of his guilt or innocence, the judge alone would make that decision, and (4) it could be easier for the prosecution to convince only one person, as opposed to 12, that defendant was guilty beyond a reasonable doubt." ( Id. at p. 636, 189 Cal.Rptr.3d 737, 352 P.3d 318.) We were persuaded, in another case, that a knowing and intelligent waiver had been taken after considering how the defendant had executed two written waivers reflecting his desire to give up his right to trial by jury; one of the forms, also signed by counsel, stated that defense counsel " 'fully explained' " to the defendant the terms " 'jury trial' " and " 'court trial' " and the " 'difference between a "jury trial" and a "court trial." ' " ( Weaver , supra , 53 Cal.4th at p. 1070, 139 Cal.Rptr.3d 355, 273 P.3d 546.) In addition, the court described to the defendant several differences between the two types of trials, informing him that he had an absolute right to a unanimous decision by twelve " 'citizens of the community.' " ( Ibid. ) We have upheld another waiver as knowing and intelligent where the prosecutor explained, among other items, "what a jury trial was and that the jury would have to agree unanimously on guilt, special circumstances, and penalty" and both defense counsel and the prosecutor joined in the waiver. ( People v.

Scott (1997) 15 Cal.4th 1188, 1208, 65 Cal.Rptr.2d 240, 939 P.2d 354 ( Scott ).) And in yet another case, we found a valid waiver where the "[d]efendant was represented by two apparently competent counsel who over the course of several days discussed with him 'at length' the consequences and nature of his proposed waiver" and, prior to accepting the waiver, the court "engaged [defendant] in an extensive and thorough voir dire" which included this advisement: "You understand, also, that if you do waive jury and submit it to the Court, the Court will act solely.

If you have a jury trial, before a verdict can be returned either way, it requires unanimous agreement of all 12 jurors; do you understand that?" ( People v. Robertson (1989) 48 Cal.3d 18, 36-37 & fn. 5, 255 Cal.Rptr. 631, 767 P.2d 1109.) These facts of our prior cases by no means establish requirements for effective jury waivers; they simply illustrate instances in which this court has found waivers to be knowing and intelligent.

Consistent with our precedent and in recognition of the fact-intensive nature of our inquiry, we first analyze the trial court's record advisements preceding its acceptance of Daniels's jury waiver. The trial court's admonitions are relevant only to the extent that they shed light on the state of a defendant's knowledge at the time of waiver about the nature of the right he or she would give up and the consequences of doing so. Yet the in-court colloquy serves an essential purpose of facilitating meaningful appellate review of a defendant's waiver of fundamental constitutional rights.

Following the high court's decision in Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, this court amended our test for determining the validity of guilty pleas-one that previously required explicit admonitions-to align with the federal test. ( People v.

Howard (1992) 1 Cal.4th 1132, 1175, 5 Cal.Rptr.2d 268, 824 P.2d 1315.) In that regard, we established that a guilty plea is effective "if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances." ( Ibid . ) We further explained that "explicit admonitions and waivers still serve the purpose that originally led us to require them: They are the only realistic means of assuring that the judge leaves a record adequate for review." ( Id. at pp. 1178-1179, 5 Cal.Rptr.2d 268, 824 P.2d 1315 ; accord, Koontz , supra , 27 Cal.4th at p. 1071, 119 Cal.Rptr.2d 859, 46 P.3d 335 ["the purpose of the suggested Lopez admonitions is to ensure a clear record of a knowing and voluntary waiver of counsel"].) A meaningful colloquy-or lack thereof-bears on our ability, on review, to confirm whether a valid waiver of rights was given.

This court has persistently declined to mandate any specific admonitions describing aspects of the jury trial right. (See, e.g., Weaver , supra , 53 Cal.4th at p. 1074, 139 Cal.Rptr.3d 355, 273 P.3d 546 ; People v. Sivongxxay (2017) 3 Cal.5th 151, 170, 219 Cal.Rptr.3d 265, 396 P.3d 424 ( Sivongxxay ).) We continue to eschew any rigid rubric for trial courts to follow in order to decide whether to accept a defendant's relinquishment of this right. But the trial court is not merely a passive receiver of an attempted waiver.

We have long recognized the responsibility of the courts to adequately advise defendants before accepting their waivers of fundamental rights. The court's obligation "to advise [the] defendant of his right to jury trial" and to "determine impartially whether [the] defendant's waiver of jury trial was knowing, intelligent, and voluntary" is a "constitutional procedural duty." ( Collins , supra , 26 Cal.4th at pp. 308-309, 109 Cal.Rptr.2d 836, 27 P.3d 726 ; see also U.S. v.

Duarte-Higareda (9th Cir. 1997) 113 F.3d 1000, 1003 [under certain circumstances, district court may be "obliged to conduct a colloquy ... to carry out its 'serious and weighty responsibility' of ensuring that a defendant's jury waiver is voluntary, knowing, and intelligent"].) How to best achieve this goal is left to the trial courts. Although we offer some exemplars of advisements and colloquy elements that may be helpful in establishing that a waiver was knowing and intelligent, post , we do not seek to require that trial courts provide any particular advisements.

If the trial court is not persuaded the waiver is knowing and intelligent, the court cannot accept it. (See Collins , supra , 26 Cal.4th at p. 305, 109 Cal.Rptr.2d 836, 27 P.3d 726 ["a defendant's waiver of the right to jury trial may not be accepted by the court unless it is knowing and intelligent"].) The federal Constitution, after all, guarantees the right to a jury trial but does not provide for a right to a court trial. ( Singer v.

United States (1965) 380 U.S. 24, 34-35, 85 S.Ct. 783, 13 L.Ed.2d 630.) As the high court has elaborated, a jury trial is the "normal" and often "preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses." ( Patton v. United States (1930) 281 U.S. 276, 312, 50 S.Ct. 253, 74 L.Ed. 854 ( Patton ); accord, U.S. v.

Martin (6th Cir. 1983) 704 F.2d 267, 272 ( Martin ).) Not only must the right to jury trial be "jealously preserved," but due to the traditional and important role of the jury as a factfinding body in criminal cases, a waiver is only effective if given with the consent of government counsel, the sanction of the court, and "the express and intelligent consent of the defendant." ( Patton , at p. 312, 50 S.Ct. 253.) While the right to jury trial is waivable, "we 'do not presume acquiescence in the loss of fundamental rights.' " ( Johnson v.

Zerbst (1938) 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461.) What the court did in this case-immediately after accepting Daniels's counsel waiver on December 20, 2000-was ask if Daniels wished to confirm the jury trial date. Daniels replied: "Yes. Keep it the same date for jury." He did not ask about waiving a jury. In fact, it was the judge who broached the issue on January 5, 2001. He did so by asking whether Daniels wished to proceed by jury trial or court trial. In response to the court's inquiry, Daniels opted for a court trial.

Up until that point, Daniels never explicitly requested or referenced a court trial. (Cf. Sivongxxay , supra , 3 Cal.5th at p. 167, 219 Cal.Rptr.3d 265, 396 P.3d 424 [defendant initiated request to waive jury].) The court orally advised Daniels that the judge alone, instead of a jury, would make determinations in the different phases of his capital trial. The court admonished Daniels that, in the event of waiver, the judge alone would determine whether Daniels was guilty, whether special circumstances were true, and whether the appropriate punishment was death.

This information may have illuminated the nature of the court trial Daniels was opting to pursue. But Daniels was provided nearly no information about the right he would abandon. The court did not, prior to accepting the waiver, elaborate on what a jury trial entails, other than that it is not the same thing as a trial before a judge. The court did not explain anything about the nature of the jury-for example, what constitutes a jury, how a jury is selected, or that jury members must be impartial and their verdict unanimous.

Daniels replied yes to the court's questions, "Do you know what you are doing?" and, moments later, "Do you know what you have just done?" With that, the court accepted Daniels's express oral waiver on January 5. The court never inquired whether-even in a general sense-Daniels understood what a jury trial entailed, or if he had any questions about the waiver of the jury right. The waiver was never memorialized in writing. When the guilt phase commenced a week and a half later, on January 16, 2001, the court sought to orally confirm that Daniels maintained his desire to proceed by way of court trial.

The court stated, "We also talked about your right to a jury trial with members of these communities that would determine whether or not-the question of guilt or innocence. [¶] Do you remember that?" The court was mistaken on this point: it had not previously informed Daniels that members of the community would determine guilt or innocence. Nonetheless, Daniels responded "Yes" to the court's query of whether he recalled such an advisement. This exchange reveals a discrepancy between what the court evidently believed it told Daniels and what it actually told him.

Daniels's affirmative response as to whether he remembered the purported previous advisement, despite no record it was given, ultimately provides little support for conclusion that Daniels's waiver was based on full awareness of the nature of the jury trial right. The appellate record contains a January 4, 2001, memorandum with the subject line "Waivers," which was filed by the prosecutor. In this memorandum, the prosecutor requested that the court conduct supplemental colloquies as to various waivers.

One proposed advisement was, "You have an absolute right to have your case heard by a jury of twelve persons." The court did not provide this advisement to Daniels, nor did it mention this memorandum in any proceedings. The record does not establish that Daniels ever received, much less read or understood, this memorandum. Although Daniels is listed as an intended recipient, there is no proof of service or any notation of service on the document.

In contrast, a "Notice of Evidence in Aggravation" memorandum dated two days earlier on January 2 bears the notation, "Hand delivered to Daniels 1/3/01," with the prosecutor's initials. The Notice of Evidence in Aggravation memorandum was also discussed on the record in Daniels's presence, while the Waivers memorandum was never referenced in court. The Waivers memorandum does not contain indicia of reliability which would accompany a written waiver signed by the defendant or a document referenced during court proceedings.

Thus, the existence of this memorandum is minimally probative in our assessment of Daniels's knowledge. We know of no other written materials in the record regarding Daniels's waiver of his jury right. To its credit, the court obtained Daniels's express waiver for three separate phases of trial: guilt, special circumstances, and penalty. The prosecutor, perhaps cognizant of the People's interest in ensuring that the record reflected a valid waiver, interjected at one point to confirm that Daniels would waive a jury for the special-circumstance determinations.

What remains both striking and relevant, however, is that the court accepted Daniels's waiver without ever inquiring as to Daniels's understanding of any substantive aspect of what a jury is. The People point out that Daniels "never expressed confusion or asked for clarification regarding his jury trial right." While this may be true, we decline to infer Daniels's knowledge from his failure to ask unprompted questions of the court.

And though an utterance of bewilderment might have weighed in favor of our finding Daniels's waiver to not be knowledgeable, the absence of such an expression does not push us toward the inverse finding of a knowing waiver. The phrase "You don't know what you don't know" encapsulates the futility of relying on defendants to raise questions or identify misunderstandings on their own when they lack the very basis to understand what lies beyond the scope of their knowledge. We do not dispute that Daniels expressly affirmed-multiple times-his desire to waive a jury for all trial phases.

But we decline to conflate a knowing, intelligent waiver with an emphatic one. The former is constitutionally required; the latter is not. Moreover, our concurring and dissenting colleagues are mistaken in declaring that we "dismiss Daniels's repeated affirmations that he understood his right to a jury trial and the consequences of forgoing it." (Conc. & dis. opn. of Corrigan, J., post, 221 Cal.Rptr.3d at p. 824, 400 P.3d at p. 424.) Not once did Daniels say he understood what the jury right entails.

We are not persuaded that Daniels's purported "overarching aim ... to accept responsibility for the charged crimes" is relevant to whether his jury trial waiver was knowing and intelligent. (Conc. opn. of Kruger, J., post , at p. 831, 400 P.3d at p. 429.) That a defendant "may have made a 'tactical choice' to waive a jury tells us nothing about whether he understood what he would be giving up by making such a choice." ( U.S. v.

Shorty (9th Cir. 2013) 741 F.3d 961, 969 ( Shorty ).) Nor was Daniels permitted by statute to plead guilty to capital charges in any event, so it strains logic to assume we should in any way give weight to his desire to plead guilty when-after it was settled that Daniels would proceed to trial on the murder counts and related charges-the trial court was still required to ensure a constitutionally valid proffered waiver. Confidence does not imply comprehension.

Individuals are entirely capable of categorically asserting a position without awareness that the roots of that position lie in ignorance or lack of reflection. It was incumbent upon the court to verify, not merely to assume, that Daniels indeed grasped the actual nature of the jury right-even if only at a basic level. In his own mind, Daniels may have had an impression of what a jury trial is. Just what impression that was-and whether it bore any relationship at all to the required constitutional standard-is well beyond what we can discern from this record.

Our concurring and dissenting colleagues may believe Daniels demonstrated "some legal sophistication by filing a written motion to represent himself and referring to his 'Faretta' right." (See conc. & dis. opn. of Corrigan, J., post , 221 Cal.Rptr.3d at p. 824, 400 P.3d at p. 424.) That's some definition of "legal sophistication." The "written motion" was a fill-in-the-blank Faretta form motion; Daniels failed even to fill in all the blanks.

He also handwrote a note to the judge that stated, "I am also Requesting that I Be allowed to Represent myself, my feretta [sic ] Rights." This misspelled reference to Faretta perhaps disclosed the gist of his aim to represent himself, but Daniels's request does not demonstrate legal sophistication, much less his understanding of the jury trial right.

Even a defendant with enough acumen to invoke the Faretta right by filling in all the blanks of a form or drafting his or her own motion in no way forfeits the protections rooted in the wholly distinct requirement that waiver of a jury trial right must be knowing and intelligent. Of course, what must be knowing and intelligent for present purposes is Daniels's understanding of the jury trial right, not his appreciation of the separate Faretta right.

A proper weighing of the totality of the circumstances forces us to take into account Daniels's lack of representation, even if it was his own choice to exercise his right to self-representation. The sparseness of the colloquy's substance in this case is especially conspicuous given that Daniels was without the benefit of counsel when he proffered his waiver. Counsel plays a crucial

part in transmitting information to the client. Time and time again, our precedent has recognized as much, incorporating within the totality of relevant circumstances not only the fact of representation by counsel, but also record references to discussions between counsel and defendant. (See, e.g., Weaver , supra , 53 Cal.4th at p. 1075, 139 Cal.Rptr.3d 355, 273 P.3d 546 [valid waiver, in part, because "the court gave [the defendant] ample time to consider and reconsider his decision and to discuss it fully with counsel"]; People v.

Scott , supra , 15 Cal.4th at p. 1209, 65 Cal.Rptr.2d 240, 939 P.2d 354 ["That the defendant discussed the decision with counsel and relied on counsel's advice strengthens, not weakens, the waiver's validity"]; People v. Diaz (1992) 3 Cal.4th 495, 571, 11 Cal.Rptr.2d 353, 834 P.2d 1171 [valid waiver, in part, because "defendant acknowledged that he had thoroughly discussed the jury waiver with his attorney"].) Here, Daniels had representation for approximately eleven months before he discharged counsel on December 20, 2000, and about four of those months elapsed after a trial date had been set.

Yet there is no indication that counsel had at any point discussed with Daniels the substantive nature of a jury trial or the consequences of giving one up in favor of a court trial in h

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