Does a defendant have to waive his right to a jury trial to determine the truth or falsity of his special circumstance?

Defendant, relying on People v. Memro (1985) 38 Cal.3d 658, 214 Cal.Rptr. 832, 700 P.2d 446, asserts that the trial court did not explicitly advise him that he had a right to a jury trial to determine the truth or falsity of the special circumstance allegations, and that he never explicitly waived this right. He contends that the failure to obtain such a waiver requires reversal of the special circumstance findings and the ensuing judgment of death. We disagree.

In People v. Memro, supra, 38 Cal.3d 658, 214 Cal.Rptr. 832, 700 P.2d 446, the defendant, who was charged with capital murder, waived his right to a jury trial at the guilt phase of his trial. At the conclusion of the guilt phase, counsel stipulated that the trial court could determine the truth or falsity of the alleged special circumstance, based on the evidence that had been presented. Although we reversed [3 Cal.4th 565] Memro's conviction on other grounds, we addressed the propriety of the stipulation, finding it impermissible under section 190.4, subdivision (a). ²⁹ We held: "[A]n accused whose special circumstance allegations are to be tried by a court must make a separate, personal waiver of the right to jury trial." (People v. Memro, supra, 38 Cal.3d at p. 704, 214 Cal.Rptr. 832, 700 P.2d 446.)