Does the Attorney General have implied consent to waive a jury trial?

Defendant cites People v. Peace, supra, 107 Cal.App.3d 996, the same case relied on by the trial court and the prosecutor, as "an instructive counterpoint to the facts of the instant case." His reliance on Peace is misplaced. In that case, defendant waived his right to a jury trial, and the prosecutor agreed. Defense counsel, however, did not, telling that court that defendant's waiver was against her advice. After confirming that defendant's waiver was intelligent and voluntary, the court accepted the waiver. (Id. at pp. 1004-1007.)

On appeal, defendant argued, among other things, that the jury trial waiver was ineffective because defense counsel did not consent to it. (People v. Peace, supra, 107 Cal.App.3d at p. 1007.) The Attorney General contended that defense counsel impliedly consented because she did not specifically state she did not consent, having merely stated the waiver was against her advice. The court agreed with defendant that defense counsel did not impliedly agree: "If defense counsel and/or the prosecutor state nothing in regard to the waiver, 'the acquiescence of defense counsel and the prosecutor will be given effect as implied waivers.' [Citation.] However, in the instant case defense counsel stated the waiver was against her advice and it cannot be said that defense counsel impliedly waived the right to a jury trial." (Id. at p. 1008.)

According to defendant, the circumstances in People v. Peace, supra, 107 Cal.App.3d 996, are in contrast to those here because, unlike defense counsel in Peace, his counsel did not state that he had advised defendant against waiving his right to a jury trial. By this reasoning, consent would be implied any time defense counsel does not advise his or her client against waiving a jury trial. That is not the law, as there could be other circumstances that undermine a finding of implied consent. And, in fact, Peace supports the trial court's ruling here because it acknowledged that consent will be implied "[i]f defense counsel and/or the prosecutor state nothing in regard to the waiver." (Id. at p. 1008.) That certainly was not the case here, where defense counsel stated many things about the waiver, including declining to give his consent when expressly asked for it by the court.

Page 10

The judgment of conviction is affirmed.

Page 11

/s/_________
Richman, Acting P.J.

We concur:

/s/_________
Stewart, J.

/s/_________
Miller, J.

Footnotes:

^1. Faretta v. California (1975) 422 U.S. 806.