Filed 1/24/20 P. v. Malmstead CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

LIZBETH MALMSTEAD,

Defendant and Appellant.

A156154

(Lake County

Super. Ct. No. CR950654)

In re LIZBETH MALMSTEAD,

on Habeas Corpus.

A157403

Defendant Lizbeth Malmstead appeals from a Lake County Superior Court judgment in which she was convicted of two counts of child endangerment. She argues two grounds for reversal, including that she did not make a valid waiver of her constitutional right to a jury trial in the case, requiring reversal.

In determining whether a defendant’s jury waiver was valid, we review the totality of the circumstances to determine if the record contains an affirmative showing that the waiver was knowing, intelligent and voluntary. (People v. Jones (2018) 26 Cal.App.5th 420, 435 (Jones), quoting People v. Daniels (2017) 3 Cal.5th 961, 991 (lead opn. of Cuéllar, J.).) While a lower court is not required to take any specific steps to ensure a defendant’s jury waiver is valid, the circumstances of a particular case may require a court’s careful explanation of a waiver to a defendant and its thorough consideration of whether the defendant has made a knowing and intelligent waiver. (See People v. Sivongxxay (2017) 3 Cal.5th 151, 166-170 (Sivongxxay).)

Here, the lower court took virtually no steps to explain the consequences of Malmstead’s jury waiver to her or ask her any questions to assure her waiver was knowing and intelligent, even though the circumstances cried out for the court to do so. These circumstances include that Malmstead was representing herself at the time; her previous attorneys had questioned her competence to stand trial; one of the two doctors who had concluded Malmstead was competent to stand trial also had concluded her ability to appreciate the possible consequences of her legal predicament was mildly impaired; the sentencing court concluded that she “does have some mental health issues;” nothing indicates Malmstead previously had been a criminal defendant or had any experience with criminal jury trials; and Malmstead expressed impatience about the commencement of her trial, possibly because she made her waiver when she was incarcerated for the first time and had been in jail for about four months. The record further indicates Malmstead’s mental state may have rendered her unable to appreciate the consequences of her jury waiver; she displayed very poor judgment, troubled emotions and erratic behavior throughout her case. In short, the record does not contain an affirmative showing that Malmstead’s jury waiver was knowing and intelligent.

The People contend that Malmstead’s education, which includes a 2017 law degree from the University of San Francisco Law School and an undergraduate degree in sociology and criminology, indicates her jury waiver was knowing and voluntary, however perfunctory the lower court’s consideration of it may have been. We disagree in light of the totality of the circumstances. Therefore, we reverse and do not determine the merits of Malmstead’s other appellate claim.

Malmstead has also petitioned this court for a writ of habeas corpus regarding her conviction in a second case, in which she was convicted of a misdemeanor for violating a court protective order that was issued in her child endangerment case. We dismiss this petition because Malmstead is no longer in actual or constructive custody in that case.

BACKGROUND

In a June 2018 information, the Lake County District Attorney charged Malmstead with felony child endangerment likely to produce great bodily harm or death (Pen. Code, § 273a, subd. (a) ) with respect to each of her twin babies, Ax. J. and Al. J. (counts I and II) and misdemeanor child endangerment (counts III and IV) (§ 273a, subd. (b)). She pleaded not guilty, and the court appointed her legal counsel.

At first, Malmstead remained free on her own recognizance. In July 2018 she failed to appear at the time scheduled for the commencement of a hearing, and a bench warrant was ordered for her arrest. When the matter was recalled later that morning, Malmstead was present. The court set her bail at $25,000 and she was remanded into custody and placed in the county jail, where she remained through her bench trial.

I.

Malmstead’s Competence to Stand Trial

In August 2018, Malmstead’s counsel declared a doubt under section 1368 about Malmstead’s competence to stand trial. The court appointed two doctors to separately evaluate Malmstead. Each reported to the court that Malmstead was intelligent, focused and courteous and concluded she was competent to stand trial. However, one doctor “wondered” if Malmstead “experienced, possibly, cyclic variations in mood and thinking,” “whether [he] had caught Ms. Malmstead at a good point in her mental health functioning and whether she was less functional at other times.” Also, he concluded Malmstead had a “mild” impairment to her ability to appreciate the possible consequences of her legal predicament.

In September 2018, the court, Judge Stephen O. Hedstrom presiding, held a bench trial regarding Malmstead’s competence and found her competent to stand trial.

II.

Malmstead’s Pre-Trial Waivers and Protective Order Violation Case

A. Malmstead’s Waiver of Her Right to Counsel

At the end of the bench trial on her competence, Malmstead petitioned the court under Faretta v. California (1975) 422 U.S. 806 (Faretta) to represent herself. She executed a Faretta waiver form, including by initialing a box next to the statement, “I understand that I have a right to a speedy trial and a public trial by a jury of twelve citizens.” She also initialed boxes next to statements explaining the dangers and disadvantages of self-representation, thereby indicating she understood these matters. Malmstead further stated on the form that she was 31 years old, had a Bachelor of Arts degree in sociology and criminology, a “Juris Doctorate,” and “varied” employment experience, and had not previously acted as her own attorney in a criminal matter. Also, the court was told orally at the hearing that Malmstead was a 2017 graduate of the University of San Francisco Law School, was not licensed to practice law in California and planned on “getting involved with the city counsel and probably getting involved in family law.”

The court said it would allow Malmstead to represent herself if she initialed the box on the waiver form indicating she understood she was giving up any ineffective assistance of counsel claim for her self-representation, adding that she could reserve such a claim for the period when she was represented by counsel. The court also cautioned her, “If I were a cardiac surgeon, and I needed heart surgery, I wouldn’t be performing that surgery on myself. But this is your call.” Malmstead initialed the box with the reservation suggested by the court and submitted the form, and the court granted her petition to represent herself.

B. Malmstead’s Protective Order Violation Case and Waiver of a Jury Trial

In October 2018, the court, this time with Judge Andrew S. Blum presiding, conducted a master calendar hearing regarding the charges against Malmstead. These charges included one count alleged in a new case filed by the prosecution against her, in which it was alleged that she had willfully disobeyed a court protective order, a misdemeanor (§ 166, subd. (a)(4)). Malmstead pleaded not guilty to the new charge and sought to represent herself in the case. The court, after indicating that it was “looking” at Malmstead’s previous Faretta waiver form, allowed her to represent herself in this second case, consolidated the trial of the two cases and set a trial date for the following week before another judge.

During this same hearing, Malmstead sought to waive her right to a jury trial. Specifically, when the court first accepted her not guilty plea in the second case, it indicated she was entitled to a jury trial in that case within 30 days because she was being held in custody. This led to the following exchange:

“[MALMSTEAD]: I am thinking that I may waive my right to a jury.

“THE COURT: Okay. It’s up to you. You have a right to have a jury trial in that new case within 30 days. Do you understand and give up that right?

“[MALMSTEAD]: Yes.

“[THE COURT]: Okay . . . .”

A few moments later, the court turned to the scheduling of a trial of both cases. The prosecution and Malmstead said they could be ready for a trial the next week, but Malmstead disagreed with the prosecution’s estimate that the trial would take three to five days, saying she thought it would take a day because there was hardly any evidence. The court and the parties, apparently confused about the nature of the waiver Malmstead had made moments earlier, engaged in the following discussion:

“THE COURT: Well, it often takes almost a day just to pick a jury.

“[MALMSTEAD]: Yeah, but I’m waiving that right.

“THE COURT: Are you waiving that?

“[MALMSTEAD]: Yes, I don’t want a jury.

“THE COURT: Oh, that I didn’t know, because [the first case is] set for a jury trial—well, yeah. It’s set for a jury trial?

“[THE PROSECUTOR]: I thought she was waiving that on the misdemeanor, so to be clear.

“[MALMSTEAD]: No, I’m waiving it on both on all charges. I have a right to.

“THE COURT: No jury trial’s been waived. The new misdemeanor was just time waived. Okay. It’s not set for trial.

“[MALMSTEAD]: I’m not waiving any time. I’m just waiving my right to a jury.

“THE COURT: Okay. You’re talking about two different cases.

“[MALMSTEAD]: Yes.

“THE COURT: The new one that I just arraigned you on that’s trailing, you waive time on that?

“[MALMSTEAD]: Not—

“THE COURT: Meaning not going to have a jury trial within 30 days? Okay. We just went through that.

“[MALMSTEAD]: For the—for the new one?

“THE COURT: For the brand new one. The one I just told you about.

“[MALMSTEAD]: Yes.

“THE COURT: Okay. That one’s a time waiver?

“[THE PROSECUTOR]: I think that’s what—I think she was, when we were here, the Court was doing it. I think she thought she was waiving jury. That was my impression.

“[MALMSTEAD]: Yeah, but I’m not waiving. I’m not waiving time. I want both trials heard next week.

“THE COURT: Well, the one will—I guarantee you, will not be heard next week. It just got filed today.

“[THE PROSECUTOR]: Your Honor, actually if she wants to waive jury trial, I could probably get that together. It involves one of the same witnesses.

“THE COURT: Okay. That was the next—you’re saying you want to waive jury trial. This is set—the older case is set for a jury trial next week. Trial has not been—

“[MALMSTEAD]: Yes.

“THE COURT: Okay. You want to do that on both cases?

“[MALMSTEAD]: Yes.

“THE COURT: And then in the hopes of doing them both next week together?

“[MALMSTEAD]: Correct.

“THE COURT: Okay. That can be done. All right. In [the two cases], you have a right to jury trial in each of these cases. Do you understand that right?

“[MALMSTEAD]: Yes, I do.

“THE COURT: In each of these cases do you give up that right?

“[MALMSTEAD]: Yes, I do.

“THE COURT: So you wish to have a Court trial, a trial with a judge?

“[MALMSTEAD]: Yes.

“THE COURT: Okay. People join?

“[THE PROSECUTOR]: Yes, Your Honor.

“THE COURT: Okay. That will certainly change the time estimate.”

III.

Malmstead’s Bench Trial

A bench trial on the charges in both the child endangerment and misdemeanor cases was conducted the following week, this time with Judge J. David Markham presiding. Just before the court began the trial, the prosecutor expressed concerns regarding Malmstead’s competence, including her competence to represent herself. The prosecutor referred to the previous concerns and evaluations of her competence to stand trial and continued, “And I’m especially concerned, because she’s representing herself, and I don’t know if the Court can make inquiries. Just so that the issue maybe is a little clearer, part of that is talking to correctional staff.”

The court noted that previously there had been a finding of competence and asked the prosecutor why she now questioned appellant’s competence. The prosecutor responded:

“Well, we did have a settlement conference, where I spoke with her and my investigating officer in the jury room. And the defendant is very intelligent. Apparently, she went to law school.

“I just think that her mental health issues are getting in the way of her being able—well, representing herself. She was unable to listen to me. She basically kind of—we just started yelling, because she wouldn’t stop—she wouldn’t listen to what I was trying to say.

“And by itself, I know that’s not enough. But I’ve also been told by correctional staff who have been dealing with her in the last two weeks that they feel she is not competent. [¶] . . . [¶] I’m just having a hard time articulating it.

“It’s—it just seems that her thought process is not rational in comparison to what facts are presented to her, or being able to listen and think outside of what I think might be some sort of—I’m not sure if it’s a delusion, or a paranoia.

“I’m not sure exactly what’s going on. But I just have concerns about her representing herself, given all that nature.”

The court concluded there was no need to take further action based on the prosecutor’s stated concerns:

“I haven’t heard enough to lead me to believe—to cause me to doubt that Ms. Malmstead is not competent to stand trial. There was a hearing on September 18th, where she was found competent.

“I realize she doesn’t listen to the prosecutor, but there are defense attorneys that don’t listen to prosecutors, either, and I wouldn’t say they’re not competent. Sometimes people disagree. [¶] I haven’t heard any facts about what the correctional officers observed that would lead me to believe that the defendant is not competent. I’m not taking any further action regarding that.”

The evidence presented at the bench trial indicates Malmstead gave birth to Ax. J. and Al. J. in October 2017. The twins’ father and Malmstead’s boyfriend at the time (boyfriend) testified that Malmstead began acting strangely shortly after Christmas 2017. He heard her scream “several times . . . , ‘You’re not even really my babies. I don’t need to console you,’ ” and noticed that she began to wake up every morning at 4:00 a.m. and scream “at anyone around” that they were “out to get her.” She would leave with the twins for days at a time to “do drugs,” return exhausted, behave erratically, sleep and begin this cycle all over again.

The boyfriend further testified that in May 2018 they were in Lucerne, California staying at the second-floor residence of a man and a woman who were his friends. On the morning of May 20, he confronted Malmstead with a text message from a man that he found on her phone and asked if she was cheating on him. Malmstead “went ballistic.” Holding Al. J., she “stormed” to their bedroom, jumped on the bed, stood on Ax. J.’s head, opened a window and pushed out its screen, clearing the way to the concrete below. She screamed things the boyfriend could not understand. Before she could jump out of the window he and his two friends pulled her back inside. The boyfriend took both children to the living room and noticed that Ax. J. had a large red heel-shaped mark and some swelling on the side of his head. Malmstead screamed “that she wanted to leave with the babies.” He would not let her take the babies, but “took all of her belongings, and her car keys, and cell phone, and everything and put them on her car, because we were trying to get her to go.”

Malmstead called the police, and Lake County Sheriff’s Deputy Dennis Keithly responded. He testified that he met Malmstead outside the residence. Appearing “agitated, upset and hysterical,” she told him the three people she lived with had blocked her from leaving their residence, and that one of them (the female friend) had thrown her to the ground and punched and choked her. Malmstead said she had yelled out a window, “ ‘False imprisonment,’ ” but that the three were going to tell him that she had attempted to jump out of the window. Malmstead did not say anything about being attacked by the male friend in the residence. Also, she told him “she was able to get out of the residence” and did not need any medical attention.

Keithly further testified that he spoke to the boyfriend and his male friend in the residence, saw a window screen lying on the concrete directly below a bedroom window, observed an injury to Ax. J.’s head and was told that Malmstead had caused it by standing on him. A neighbor told Keithly he had heard Malmstead scream out something like, “ ‘Let me go,’ ” and “heard them say, ‘You can leave. Leave. If you want to go, go.’ ” Keithly arrested Malmstead.

In her own defense against the child endangerment charges, Malmstead denied harming her children or trying to jump out the bedroom window, contending that she was assaulted. She sought to impeach her boyfriend’s credibility with evidence of his prior convictions for crimes of moral turpitude. She also presented the testimony of her mother, who testified that the boyfriend had treated Malmstead poorly and that Malmstead, although she had emotional problems, was a good mother. Malmstead also testified on her own behalf about the events of May 20, giving an account of the incident that was generally consistent with what she told Deputy Keithly.

Regarding the misdemeanor count in the protective order violation case, the People presented evidence that at a May 2018 court hearing in the child endangerment case, Malmstead was served with a domestic violence criminal protective order directing her to have no contact, including telephonic contact, with her children or her boyfriend. The parties also discussed this protective order at the subsequent preliminary hearing, and Malmstead’s counsel’s motion to modify it was denied. The boyfriend testified that, nonetheless, Malmstead called him from jail. She told him, among other things, that “her lawyer was out to get her” and that she wanted him to try to find her an attorney from outside of Lake County. The phone call was played for the court.

Malmstead acknowledged that she called her boyfriend. She also acknowledged that she was present in court during a discussion about her protective order.

IV.

The Verdicts, Sentencing and Appeal

At the conclusion of the bench trial, the trial court found Malmstead guilty of two counts of felony child endangerment and of willfully violating a court order. It found the boyfriend credible despite his prior convictions, in part because of the evidence supporting his testimony. This included the evidence of the screen that had been knocked out of the window, the injuries observed and Malmstead’s “erratic behavior” at the time of the incident. The court concluded that Malmstead had held one baby out the window and stepped on the other, placing them in danger in circumstances likely to produce great bodily harm or death. It further found that Malmstead had been served with the protective order.

After the court announced its verdicts, Malmstead became increasingly disruptive. Immediately after the announcements, she declared, “This doesn’t happen in a real court. I want to show that they are abusing me.” She further declared, “Abuse of power. Abuse of rich people power.” At the first sentencing hearing, when the court rejected a motion to dismiss by Malmstead with an explanation she found unsatisfactory, she had the following exchange with the court:

“MS. MALMSTEAD: “It’s my fucking freedom here and I’ve been in jail for a [sic] 130 fucking days. This doesn’t happen in real life. I’ve been fucking abused. You don’t get to do this to fucking people.”

“THE COURT: The information—

“MS. MALMSTEAD: Just because you are fucking entitled because you want to show—here’s your fucking show. This is abuse.

“THE COURT: Do you want me to respond to your statement? [¶] . . . [¶]

“MS. MALMSTEAD: No. You are abusing me. This is torture. This is abuse of my fucking freedom.”

When the court suggested Malmstead calm down so they could proceed to sentencing and reminded her that she would not be released from jail until she was sentenced, Malmstead responded, “I don’t give a fuck. I’m not going to get out no matter what. So fuck you.” She continued, “Fuck this show. Stop torturing me. Stop.” After a recess, the court stated that Malmstead had been taken back to jail, and that the court had been told “she’s not in a condition where she can appear in court right now.” The hearing was continued until the next morning. The next morning, Malmstead continued to engage in behavior so disruptive that the court ordered her removed and sentenced her in her absence under section 1193.

After Malmstead’s removal, the court denied her motion under section 17, subdivision (b) to reduce her felony convictions to misdemeanors. The court found that she “has been very clear she does not accept responsibility for her conduct and does not appreciate the seriousness of her conduct.” It hoped that the amount of time for which Malmstead could be incarcerated—up to seven years and four months—would “encourage[e] [her] to lead a law abiding life in the future and deter[] her from committing future offenses.” In the child endangerment case, the court suspended imposition of sentence and placed Malmstead on probation for five years subject to certain conditions, fees and a fine, ordered her to serve 272 days in county jail and gave her credit for 272 days for time served and good conduct. The court stated it was placing Malmstead on probation because of her relatively minor criminal record and the court’s belief that she “does have some mental health issues”; the court further stated that upon her release she would be required to get mental health treatment. Among the conditions of this probation was that the protective order would remain in effect throughout the period of probation.

In the protective order violation case, the court sentenced Malmstead to 68 days in county jail to run concurrently with her sentence in the child endangerment case and gave her credit for 68 days for time served and good conduct.

Malmstead filed a timely notice of appeal from the child endangerment case only. She also has filed a petition for writ of habeas corpus with this court regarding her misdemeanor conviction in the protective order violation case.

DISCUSSION

I.

Malmstead’s Appeal

Malmstead argues we should reverse her child endangerment convictions for multiple reasons, including because she did not validly waive her right to a jury trial. We agree. At the subject hearing, the court failed to ask her any meaningful questions, to provide her with any meaningful information about the consequences of her waiver or even to pronounce orally any conclusion that her waiver was knowing, intelligent and voluntary. Under the totality of the circumstances, including the questions raised about Malmstead’s competence and her lack of legal counsel’s expertise and advice, we conclude the record does not affirmatively show that she knowingly and intelligently waive her fundamental constitutional right to a jury. Therefore, we must reverse.

A. Legal Standards

A defendant in a criminal prosecution has a fundamental constitutional right to a trial by jury under both the federal and state Constitutions. (Sivongxxay, supra, 3 Cal.5th at p. 166; People v. Cunningham (2015) 61 Cal.4th 609, 636.) “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.’ ” (Sivongxxay, at p. 166.)

A court has a “constitutional procedural duty to advise defendant of his right to jury trial, and to determine impartially whether defendant’s waiver of jury trial was knowing, intelligent, and voluntary.” (People v. Collins (2001) 26 Cal.4th 297, 308-309 (Collins).) “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.” ’ ” ’ [Citations.] ‘[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.’ ” (Sivongxxay, supra, 3 Cal.5th at p. 166.)

Whether a defendant’s waiver was knowing, intelligent and voluntary “is a question of law which we review de novo” by examining “the particular facts and circumstances surrounding the case, including the defendant’s background, experience and conduct.” (People v. Vargas (1993) 13 Cal.App.4th 1653, 1660.) “The question . . . is whether this . . . record ‘ “ ‘ affirmatively shows [the waiver] is voluntary and intelligent under the totality of the circumstances.’ ” ’ ” (Jones, supra, 26 Cal.App.5th at p. 435, quoting People v. Daniels, supra, 3 Cal.5th at p. 991 (lead opn. of Cuéllar, J.).) A waiver of a constitutional right is “knowing [and] intelligent,” only if it is “ ‘done with sufficient awareness of the relevant circumstances and likely consequences.’ ” (People v. D’Arcy (2010) 48 Cal.4th 257, 284, quoting Brady v. United States (1970) 397 U.S. 742, 748.) Thus, for example, to ensure that the constitutional right to counsel is waived

“ ‘competently and intelligently,’ ” a defendant “ ‘should be made aware of the dangers and disadvantages’ ” of the waiver, “ ‘so that the record will establish “he knows what he is doing and his choice is made with eyes open.” ’ ” (People v. Welch (1999) 20 Cal.4th 701, 733, quoting Faretta, supra, 422 U.S. at p. 835.) However, there is not “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.” (Sivongxxay, supra, 3 Cal.5th at p. 167.)

Our Supreme Court has acknowledged 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.” (Sivongxxay, supra, 3 Cal.5th at p. 168.) Furthermore, the court has, in its own words, “emphasize[d] 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.” (Id. at p. 169.) In order 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,” our high court “recommend[ed] 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.” (Ibid.) Also, the trial court should “take additional steps as appropriate to ensure, on the record, that the defendant comprehends what the jury trial right entails,” including 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.” (Id. at pp. 169-170.) The court further instructed, “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.” (Id. at p. 170.)

If we conclude a defendant has not made a valid waiver of her fundamental right to a jury, reversal is per se. “Under the federal Constitution, the right to trial by jury is recognized as fundamental, and its denial is ‘structural error,’ compelling reversal of a judgment of conviction without the necessity of a determination of prejudice. [Citations.] Similarly, under the California Constitution, the right to jury trial is fundamental, and its denial is considered a ‘structural defect in the proceedings,’ resulting in a ‘miscarriage of justice’ within the meaning of California Constitution, article VI, section 13, and requiring that the judgment of conviction be set aside.” (Collins, supra, 26 Cal.4th at p. 311.) Thus, a trial court’s “failure to obtain a waiver of the right to trial by jury is reversible per se.” (Ibid.; see also People v. Blackburn (2015) 61 Cal.4th 1113, 1134 [“trial court’s failure to obtain a required personal jury trial waiver [is] tantamount to the denial of a jury trial, and as such, it constitutes a ‘miscarriage of justice’ under [California Constitution,] article VI, section 13”]; People v. Ernst (1994) 8 Cal.4th 441, 448 [in the absence of an express waiver to a jury trial “reversal of the resulting judgment is required”].)

B. Analysis

Based on our review of the totality of the circumstances, we conclude the record does not affirmatively show Malmstead’s waiver of her constitutional right to a jury trial was knowing and intelligent.

Malmstead, who was representing herself and therefore did not have the benefit of a legal counsel’s expertise and advice, may well have not appreciated the consequences of her waiver for multiple reasons. First, the record indicates that she displayed poor judgment and was emotionally troubled, which perhaps are best indicated by her failure to timely appear in court while out on her own recognizance, leading to her jailing, and her foul-mouthed, belligerent and disruptive behavior after the court announced its verdicts and at sentencing.

Second, there are indications that Malmstead suffered from more than just emotional difficulties. Prior to her waiver of a jury trial, her mental competence to stand trial was questioned by her defense counsel, whom she later replaced with herself. Although the two doctors who evaluated her and the court found she was competent to stand trial, one of the doctors questioned whether he had interviewed her during a “good point” in a mental functioning that may have been debilitated at other times and concluded her ability to understand the legal consequences she was facing was mildly impaired. On the day of trial, the prosecutor expressed a concern about Malmstead’s overall competence and her ability to represent herself at trial based on the prosecutor’s own observation that Malmstead was unable to listen to her, and the correctional staff’s concerns about Malmstead’s mental competence. The prosecutor stated, “[I]t just seems that her thought process is not rational in comparison to what facts are presented to her, or being able to listen and think outside what I think might be some sort of—I’m not sure if it’s a delusion, or a paranoia.” The sentencing court concluded that Malmstead “does have some mental health issues.”

Third, at the jury waiver hearing, Malmstead displayed an impatience and a sense of urgency about proceeding with the trial. By that time, she had been in jail for close to four months, and she told one of her evaluating doctors that this was her first time in jail. These circumstances suggest she made her jury waiver in order to have the trial completed as soon as possible in the hope of obtaining her release from jail and may not have understood or considered the possible consequences of her waiver.

In combination, these circumstances, together with the fact that Malmstead was representing herself, called for the trial court to explain the consequences of the jury waiver to her and to carefully evaluate whether her waiver was knowing and intelligent.

Instead, when Malmstead first raised the possibility of a jury waiver with the court, with regard to her protective order violation case only, the court told her nothing about the consequences of such a waiver and neither asked nor invited any questions, contrary to the recommendations of our Supreme Court in Sivongxxay, supra, 3 Cal.5th at pages 169-170. Instead, the court merely said, “Okay. It’s up to you. You have a right to have a jury trial in that new case within 30 days. Do you understand and give up that right?” Upon her assent to this question, the court moved on to other subjects.

Indeed, the court’s consideration of Malmstead’s first mention of a possible jury waiver was so perfunctory that moments later, when she said she also wanted to waive a jury trial at a consolidated trial of both cases, the court seemed to have forgotten that she had just raised the issue while discussing the protective order violation case. The court thought Malmstead had only waived the time by which a jury trial had to occur in that second case, while both the prosecution and Malmstead understood the court had already accepted her jury waiver in that case.

Furthermore, after this confusion was cleared up and the discussion focused on Malmstead’s jury waiver for both cases in a consolidated trial, the court merely asked Malmstead if she understood her right to a jury, if she was giving up that right in both cases and if she wanted a trial before a judge instead. It failed to explain anything to her about the consequences of her waiver or to ask if she had any questions. Nor did it inquire as to her understanding of the waiver or its consequences. After receiving Malmstead’s assent to its three questions, the court simply moved on to other matters without even orally pronouncing that her jury waiver was knowing, intelligent and voluntary.

The lower court’s perfunctory consideration of Malmstead’s jury waiver is strikingly similar to that found in a recent Second Appellate District case, Jones, supra, 26 Cal.App.5th 420. Jones was accused of second degree murder and child abuse arising from the death of her four-month-old daughter. (Id. at pp. 422-423.) Before trial, Jones—who unlike Malmstead was represented by counsel—sought to waive her right to a jury. (Id. at p. 428.) The court asked her just two questions: “ ‘Ms. Jones, do you understand your right to a jury trial?’ ” and “ ‘Do you agree to waive that right and have [the judge], sitting alone, decide the case?’ ” (Ibid.) The appellate court reviewed the case law regarding jury waiver and acknowledged that courts have “consistently concluded that the failure of a trial court to provide a specific advisement does not mean there was not a knowing, intelligent, and voluntary waiver.” (Id. at p. 430.) Nonetheless, it noted that in several appellate cases in which jury waivers have been found valid, “the trial courts inquired extensively of the defendants before accepting their jury trial waivers.” (Id. at p. 431.) The court recognized that Jones was represented by counsel and must have “had some discussion with her attorney before the waiver was taken” because her counsel indicated her desire to waive her right to a jury. (Id. at p. 435.) However, the court, focusing on whether Jones understood she had a right to a jury trial of her peers from the community, pointed out that “the record does not show whether Jones’s attorney ever discussed with her the nature of a jury trial,” that “[t]here is no showing from this record that Jones understood the nature of the right to a jury trial she was relinquishing,” and that the trial court did not “take steps to ensure Jones ‘comprehend[ed] what the jury trial right entails.’ ” (Id. at pp. 435-436.) The court also pointed out that Jones had not been the subject of a previous criminal charge. (Id. at p. 437.) It concluded, “The trial court’s two-question inquiry of Jones, as to whether she ‘underst[ood] [her] right to a jury trial’ and whether she agreed to waive that right and have the trial judge ‘sitting alone, decide the case’ does not affirmatively show that Jones understood the nature of the right to a jury trial she was relinquishing.” (Id. at p. 423.) The court reversed.

Jones relied on People Blancett (2017) 15 Cal.App.5th 1200, a case that also held a jury waiver was invalid and involved circumstances similar to those before us. As explained in Jones, “In Blancett, . . . our colleagues in Division Six considered whether the defendant in a mentally disordered offender recommitment hearing made a knowing, intelligent, and voluntary waiver of his right to a jury trial where, as the trial court noted, the defendant’s attorney had represented that the defendant was ‘ “okay with having a judge decide [his] case and not a jury.” ’ The trial court then inquired simply, ‘ “That’s okay with you?” ’ The defendant responded, ‘ “Yes, your honor.” ’ (Blancett, supra, 15 Cal.App.5th at p. 1203.)

“The Court of Appeal concluded the defendant ‘did not waive his right to a jury trial with full awareness of the nature of the right being abandoned and the consequences of the decision to abandon it.’ (Blancett, supra, 15 Cal.App.5th at p. 1206.) Specifically, the trial court did not advise the defendant of his right to a jury trial or ‘explain the significant attributes or mechanics of a jury trial. [Citation.] Neither did the court inquire whether [the defendant] had sufficient opportunity to discuss the decision with his attorney, whether his attorney explained the differences between a bench trial and a jury trial, or whether [the defendant] had any questions about the waiver.’ (Ibid.) Further, the defendant had not previously been involved in a similar proceeding and the record did not show he was aware he was entitled to a jury trial. (Ibid.)

“The Court of Appeal explained, ‘In view of the trial court’s stark colloquy, the lack of evidence that [the defendant] discussed his jury trial right and waiver with counsel, [the defendant’s] inexperience with the criminal justice system, and [the defendant’s] lack of familiarity with [the type of] proceedings, we conclude that his waiver was not knowing and intelligent.’ (Blancett, supra, 15 Cal.App.5th at pp. 1206-1207.)” (Jones, supra, 26 Cal.App.5th at pp. 433-434; cf. People v. Weaver (2012) 53 Cal.4th 1056, 1070 [jury waiver valid where the defendant executed two written waivers, one of which, signed by defense counsel, stated counsel “ ‘fully explained’ ” the “ ‘difference between a “jury trial” and a “court trial,” ’ ” and where the trial court described a number of differences between the two types of trials].)

Here, as in Jones and Blancett, we see no affirmative indication in the record that Malmstead, who, unlike the defendants in Jones and Blancett was representing herself, appreciated from the lower court’s perfunctory consideration of her waiver some of the essential consequences of a jury waiver outlined by our Supreme Court, such as that she was giving up the right to a unanimous verdict of 12 peers in whose selection she was entitled to participate. (See Sivongxxay, supra, 3 Cal.5th at p. 169.) Furthermore, the totality of the circumstances we have discussed strongly suggests she was in some manner impaired in her ability to fully understand the consequences of her waiver.

The People, in arguing that Malmstead’s jury waiver was valid, place great emphasis on the indication in the record that Malmstead was a 2017 graduate of the University of San Francisco law school and had an undergraduate degree in sociology and criminology. We disagree that this education alone is sufficient to establish that Malmstead’s jury waiver was knowing and intelligent in the face of all the circumstances we have discussed. Furthermore, the record does not indicate Malmstead’s undergraduate or legal education included anything about a defendant’s rights in a criminal jury trial as opposed to a bench trial, and the only specific legal interests she expressed to the court at her previous Faretta hearing were in civil law, where a unanimous verdict by 12 jurors is not necessarily required (see, e.g., San Diego Gas & Electric Co. v. Daley (1988) 205 Cal.App.3d 1334, 1340 [discussing civil verdict determined by a 9 to 3 jury vote]). It cannot be concluded from her educational record alone that Malmstead fully understood the consequences of her jury waiver.

Neither party nor our independent research has uncovered any case involving the unique set of circumstances that exist in this case, which include Malmstead’s self-representation, poor judgment, troubled emotions, questionable mental state, lack of prior involvement with the criminal justice system, first time incarceration, time in pre-trial custody and law school education. A defendant’s study of the law is touched on in a 1942 United States Supreme Court case, Adams v. United States ex rel. McCann (1942) 317 U.S. 269. There, a criminal defendant repeatedly sought a bench trial after telling the court he had studied law and was sufficiently familiar with it and the complicated facts of his case to represent himself. (Id. at pp. 270-271.) An appellate court held that a defendant representing himself in a felony case could not waive his right to a jury without advice from counsel; the high court disagreed and remanded the matter for further proceedings. (Id. at pp. 271-272, 281.) In doing so, the high court commented, “And if the record before us does not show an intelligent and competent waiver of the right to the assistance of counsel by a defendant who demanded again and again that the judge try him, and who in his persistence of such a choice knew what he was about, it would be difficult to conceive of a set of circumstances in which there was such a free choice by a self-determining individual.” (Id. at p. 276.) Adams in inapposite for several reasons, the foremost being that there is no indication that Adams had the emotional and mental state issues presented by Malmstead’s conduct and demeanor. Further, while Adams insisted that he was familiar with the law involved in his case, Malmstead did not. Finally, Adams preceded by decades the case law we have already discussed, which emphasizes that the record must affirmatively show a defendant’s waiver of the constitutional right to a jury trial is knowing, intelligent and voluntary.

We cannot overstate the importance of the trial court’s failure to make any effort to ensure Malmstead knowingly and intelligently waived her constitutional right to a jury trial. “The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. . . . Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it.” (Duncan v. Louisiana (1968) 391 U.S. 145, 155, fn. omitted.) Because of the fundamental importance of a defendant’s constitutional right to a jury trial, when a defendant forgoes “his or her right to a trial, the record must reflect that the defendant did so knowingly and voluntarily—that is, he or she was advised of and elected to refrain from exercising the fundamental rights in question.” (Collins, supra, 26 Cal.4th at p. 308.) Here, despite Malmstead’s troubled emotions and questionable mental state, poor judgment and apparent inability to appreciate the consequences of her choices, her lack of previous experience with the criminal justice system, lack of guidance from legal counsel and apparent focus on getting out of jail over the very real risks presented by waiving her right to a jury trial, the court’s consideration of her jury waiver reflected none of this jurisprudence. The court did not meaningfully explain the consequences of a jury waiver to Malmstead, take any steps to evaluate whether her waiver was knowing and intelligent, or orally pronounce that her waiver of a jury trial was knowing, intelligent and voluntary. Its perfunctory consideration has left us with a record devoid of any affirmative indication that Malmstead’s waiver was knowing and intelligent. We must, therefore, reverse.

Malmstead also argues in her appeal that the trial court on the day of trial erred by failing to exercise its discretion to determine whether she should be allowed to represent herself upon the prosecutor’s expressed concern that she could not do so. Malmstead contends the court mistakenly considered only whether she was competent to stand trial and points out that the standards for evaluating a defendant’s competence to represent herself are different and higher than the standards for evaluating a defendant’s competence to stand trial. She contends the trial court’s failure to recognize and employ its discretion is a structural error that requires reversal per se, and that at a minimum we should reverse because the error was a prejudicial abuse of discretion. The People contest this claim and argue that at most, we should conditionally reverse the court’s conviction and remand under People v. Shiga (2016) 6 Cal.App.5th 22 for the trial court to determine whether or not it can retrospectively assess whether Malmstead was mentally competent to represent herself at the time of trial. (See id. at pp. 49-50.)

We need not decide this issue in light of our reversal for lack of a valid jury waiver. We merely point out that Malmstead is correct that a defendant who is found competent to stand trial may nonetheless have a mental condition that “falls in a gray area between [the] minimal constitutional requirement that measures a defendant’s ability to stand trial and a somewhat higher standard that measures mental fitness for another legal purpose,” i.e., self-representation. (Indiana v. Edwards (2008) 554 U.S. 164, 172; People v. Johnson (2012) 53 Cal.4th 519, 528 [“Consistent with long-established California law, we hold that trial courts may deny self-representation in those cases where Edwards permits such denial”].) The trial court should bear this case law in mind if the People elect to prosecute Malmstead again.

II.

Malmstead’s Petition for Writ of Habeas Corpus

Malmstead, appearing in propria persona, has filed a petition for writ of habeas corpus in this court regarding her conviction in the protective order violation case, in which she was found guilty of a misdemeanor for violating the court’s protective order by calling her boyfriend from jail. She first contends that she was not sufficiently competent to represent herself in that case because she was suffering from post-traumatic stress disorder due to “abusive” mental and physical acts committed upon her by Lake County “judicial” and “correctional officers,” and that she otherwise would have established that the Lake County authorities “abused their authority” in issuing the protective order against her and charging her with violating it. She also argues her due process rights were violated, including her “(1) right to speedy trial, (2) right to be innocent until proven guilty, (3) right to confront evidence, [(4)] right to a reasonable bail, [(5)] right to effective assistance of counsel, and [(6)] the right against cruel and unusual [punishment].”

Second, Malmstead argues the protective order is “invalid” because she was not properly notified of it and had no knowledge that it prohibited contact with the boyfriend, that she was not personally served with the order until after her phone call to him, and that “no [sufficient] evidence” supported the “good cause” necessary for the court “to have issued the order.” She further argues that the protective order was not valid because she never committed any act threatening the boyfriend or seeking to keep him out of the criminal proceedings.

Malmstead also indicates she failed to meet the deadline for appealing her misdemeanor conviction in the superior court because she was then receiving in-patient treatment at the San Diego County Psychiatric Hospital. She has attached to her petition an apparent copy of that hospital’s discharge instructions to her stating that she was discharged on April 3, 2019, with a diagnosis of “Schizoaffective disorder,” follow-up instructions and certain prescribed medications.

As the People point out, Malmstead’s petition for habeas corpus is not cognizable because she is no longer in actual or constructive custody in her protective order violation case, having been sentenced to 68 days upon conviction and at the same time having been awarded 68 days in time served and conduct credits. “In this state, availability of the writ of habeas corpus is implemented by Penal Code section 1473, subdivision (a), which provides: ‘Every person unlawfully imprisoned or restrained of his [or her] liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint.’ (Italics added.) [¶] As the italicized text in Penal Code section 1473, subdivision (a) demonstrates, a necessary prerequisite for issuance of the writ is the custody or restraint of the petitioner by the government. ‘Thus, it is well settled that the writ of habeas corpus does not afford an all-inclusive remedy available at all times as a matter of right. It is generally regarded as a special proceeding. “Where one restrained pursuant to legal proceedings seeks release upon habeas corpus, the function of the writ is merely to determine the legality of the detention by an inquiry into the question of jurisdiction and the validity of the process upon its face, and whether anything has transpired since the process was issued to render it invalid.” ’ [Citation.] [¶] The key prerequisite to gaining relief on habeas corpus is a petitioner’s custody.” (People v. Villa (2009) 45 Cal.4th 1063, 1068-1069.) Over time, this custody requirement has been relaxed to include constructive custody, such as parole. (Id. at pp. 1069-1070.)

Malmstead is neither in actual nor constructive custody for her misdemeanor conviction in the protective order violation case. In her petition, she refers to her five years on probation, but this was ordered in her child endangerment case, not the protective order violation case. At her November 2018 sentencing in the protective order violation case, the court ordered her to serve a 68-day county jail sentence and at the same time awarded her 68 days in time served and conduct credits, and further ordered that this sentence run concurrently with the sentence in Malmstead’s child endangerment case. Thus, Malmstead has served her sentence in the protective order violation case and is not on probation or parole in that case. Therefore, we will dismiss her petition and not address its merits.

DISPOSITION

The judgment appealed from in the child endangerment case is reversed. Malmstead’s petition for writ of habeas corpus is dismissed.

 

STEWART, J.

We concur.

KLINE, P.J.

RICHMAN, J.

People v. Malmstead (A156154; A157403)