The Criminal Docket


      May 2006

Volume I , Number  4 

TELEPHONE: (562) 804-8045

“Can a defendant’s sentence depend on whether he has a trial or not?”

Overview: Prior to trial, a defendant may receive an offer to settle the case.  If he is convicted after trial, the judge is not legally obligated to sentence the defendant to the previously-rejected case settlement offer.

Right to a Jury Trial: The right to, and waiver of, a jury trial is a fundamental constitutional right.  (Duncan v. Louisiana (1968) 391 U.S. 145).  The Sixth Amendment of the United States Constitution confers upon a defendant the right to a trial by jury.  Article 1, section 16 of the California Constitution also confers the fundamental right to a jury trial.  (People v. Ernst (1994) 8 Cal 4th 441)

Waiver of the Right to a Jury Trial:  The waiver of the right to a jury trial must be made knowingly and intelligently, “ the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” (Colorado v. Spring (1987) 479 U.S. 564) The waiver must be made personally by the defendant. (Brookhart v. Janis (1966) 384 U.S. 1, 7)   California requires the defendant’s personal and express jury trial waiver to be made in open court.  (See Article 1, section 16 and Ernst, supra)

In People v. Collins (2001) 26 Cal 4th 297 the defendant claimed that his waiver of the right to a jury trial was not made freely and voluntarily. The trial court judge induced the defendant to waive a jury trial and proceed with a court trial.  The court made reference to a non-specific benefit of the defendant waiving a jury: “Just by having waived jury, that has some effect on the court...I didn’t specify and I’m not specifying that there’s any particular benefit, but that by waiving jury you are getting some benefit.”  (26 Cal 4th at 302) The defendant was convicted.  The California Supreme Court held that since the judge made a representation that the defendant would receive some benefit, the defendant’s waiver was not voluntarily made.    The promise of a benefit upon sentencing “does not negate the coercive effect of the court’s assurances and constitutes a “structural defect in the proceedings” without need for further examination as to whether prejudice occurred.  Furthermore, the judge “acted in a manner that was at odds with its judicial obligation to remain neutral and detached in evaluating the voluntariness of the waiver.” (26 Cal 4th at 309, 312)  The trial court may not impose a “mitigated sentence” based only the fact that the defendant waived his right to a jury trial; the sentence would be “unauthorized and illegal.” (People v. Cahill (1993) 5 Cal 4th 478, 482, People v. Colds (1981) 125 Cal App 3rd 178)

Exercise of the Right to a Jury Trial: Just as the trial judge may not promise the defendant anything to waive a jury trial, the court may not punish the defendant for having a jury trial. (United States v. Jackson (1968) 390 U.S. 570)    To do so  “cuts down on the privilege by making its assertion costly.” (Griffin v. California (1965) 380 U.S. 609).   In the case of In re Lewallen (1979) 23 Cal 3rd 274, the Supreme Court stated that the trial court judge is not bound by the prosecution’s pre-trial offer if the defendant is convicted by a jury.  For example, the judge may make observations during the trial, including the defendant’s demeanor and conduct at trial (People v. Superior Court (Alvarez) (1997) 14 Cal 4th 968) or previously-unknown facts may come to the court’s attention through the evidence presented or from a probation department’s pre-sentencing report. In Lewallen, the Supreme Court vacated the sentence since the trial court punished the defendant for the exercise of his constitutional right to a jury trial.  The sentencing judge had stated:  “(A)s far as I’m concerned, if a defendant wants a jury trial and he’s convicted, he’s not going to be penalized with that, but on the other hand he’s not going to have the consideration he would have had if there was a plea.”  (23 Cal 3rd at 277)

People v. Szeto(1981) 29 Cal 3rd 20) A court is not prohibited from explaining to the defendant the sentencing consequences should he be convicted.  The judge’s explanation, combined with his advice that the defendant should have a trial if he is not guilty, is not necessarily coercive.  It may be “a (well-founded) concern for the appellant’s welfare in the event of conviction.”  (People v. McGowan(1980) 105 Cal App 3rd 997, 1004)

People v. Angus (1980) 114 Cal App 3rd 973)  If a defendant’s first conviction is overturned on appeal, and if he is convicted after a second jury trial, the court is prohibited from sentencing the defendant more harshly just because of his success upon appeal.  (United States v. Jackson, supra, at 580-588

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