People v. Volsan CA3

Opinion

Filed 9/21/26 P. v. Volsan CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin)

THE PEOPLE, C103813 Plaintiff and Respondent, (Super. Ct. No. v. STKCRFE20240008290)

ZOLA VOLSAN, Defendant and Appellant.

A jury found defendant Zola Volsan guilty of felony vandalism resulting in damage of $400 or more and misdemeanor vandalism. We agree with the parties that defendant did not validly waive her right to a jury trial on the aggravating sentencing factor, but we conclude her claim is not ripe and dismiss the appeal. Statutory references are to the Penal Code, and rule references are the California Rules of Court. BACKGROUND Defendant damaged the victim’s front door and door frame and caused $9,030.86 in damage to the victim’s car. After issuing jury instructions, the trial court stated: “And based on us not discussing this at all, the aggravating factor under Rule 4.421(a)(9) of great monetary value is going to bifurcated.” Defense counsel replied, “We’d waive jury.”

1 The jury found defendant guilty of felony vandalism (§ 594, subd. (b)(1); count 1) and misdemeanor vandalism (§ 594, subd. (a); count 2). As to count 1, the jury found true the vandalism resulted in more than $400 in damages (§ 594, subd. (b)(1)). Following the verdicts, the trial court said, “And we stated that for the other portion of the case, jury was going to be waived?” Defense counsel replied, “Yes.” Outside the presence of the jury, the following exchange ensued: “THE COURT: All right. The record should reflect all parties are present outside the presence of the jury. [¶] And there was an aggravating factor in violation of Rule 4.421(a)(9) that had also been filed as a part of this case. [¶] And just for the record, [defendant], through counsel, is waiving jury on that? “[DEFENSE COUNSEL]: That’s correct. “THE COURT: All right.” In a bifurcated bench trial, the trial court found true the aggravating factor that the crime involved damage of great monetary value. (Rule 4.421(a)(9).) The trial court placed defendant on two years of informal probation and sentenced her to 120 days in county jail. Defendant timely appealed. DISCUSSION The parties agree, as do we, the trial court erred by failing to obtain a valid jury trial waiver on the aggravating factor. “Under the federal Constitution and our state Constitution, a defendant in a criminal prosecution has a right to a jury trial.” (People v. Sivongxxay (2017) 3 Cal.5th 151, 166, citing U.S. Const., 6th Amend.; Cal. Const., art. I, § 16.) 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 “expressed [in words] and will not be implied from a defendant’s conduct.” (People v. Holmes (1960) 54 Cal.2d 442, 443-444.) The record must “ ‘affirmatively show[]’ ” the waiver is “ ‘voluntary and intelligent under the 2 totality of the circumstances.’ ” (People v. Collins (2001) 26 Cal.4th 297, 310.) Here, the trial court obtained an express statement from defense counsel waiving jury trial on the aggravating factor but failed to obtain an express statement from defendant. This constituted error. (Holmes, at p. 444; Cal. Const., art. I, § 16.) That, however, does not end the inquiry. Defendant argues her claim is ripe based on the “ongoing adverse collateral consequence” of the invalid jury trial waiver that there is a possibility of the aggravating factor being used to impose an aggravated sentence in a future sentencing. The People assert that defendant’s claim is not ripe because she has not yet suffered injury from the invalid jury trial waiver. “ ‘Ripeness’ refers to the requirements of a current controversy.” (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 59.) An issue is not ripe for review unless and until it is “sufficiently concrete to allow judicial resolution even in the absence of a precise factual context.” (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170.) Here, the trial court ordered probation and suspended imposition of sentence. By suspending imposition of sentence – rather than imposing but suspending execution of a sentence -- the trial court retained full discretion to sentence defendant upon revocation of probation. (People v. Howard (1997) 16 Cal.4th 1081, 1087.) Because of this, defendant has not suffered any injury from the invalid waiver of the right to a jury trial on the aggravating factor. (See People v. Wittig (1984) 158 Cal.App.3d 124, 137 [unripe section 654 claim could be considered upon revocation of probation where imposition of sentence suspended]; People v. Martinez (2017) 15 Cal.App.5th 659, 669 [same], disapproved on other grounds by People v. Ruiz (2018) 4 Cal.5th 1100, 1122, fn. 8.) Defendant’s appeal raises a nonjusticiable issue that is unripe for our review. Accordingly, we dismiss the appeal.

3 DISPOSITION The appeal is dismissed.

/s/ MESIWALA, J.

We concur:

/s/ RENNER, Acting P. J.

/s/ WISEMAN, J.* * Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.