Filed 7/2/26 P. v. Clark CA5
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F088886
Plaintiff and Respondent,
(Super. Ct. No. 22CM2103)
v.
KC SCOTT CLARK, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kings County. Robert S.
Burns, Judge.
Solomon Wollack, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Galen N. Farris and
Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant KC Scott Clark was convicted in a court trial of one count of forcible
lewd act on a child and two counts of nonforcible lewd act on a child, and he was
sentenced to 12 years in prison. His first claim on appeal is that his jury trial waiver was
invalid as it was not knowing, intelligent, and voluntary. We agree and reverse his
convictions on this basis.
We also address Clark’s challenge to the sufficiency of the evidence supporting
the forcible lewd act conviction. He contends there was insufficient evidence of force.
We disagree. Thus, Clark may be retried on that count.
We remand for a new trial.
STATEMENT OF THE CASE
A third amended complaint charged Clark with three offenses against E., a female.
Count 1 charged him with lewd act on a child younger than 14 (Pen. Code, § 288,
subd. (a)(1)).1 Counts 2 and 3 charged him with forcible lewd act on a child younger
than 14 (§ 288, subd. (b)(1)). The information further alleged as aggravating
circumstances to all three counts that the victim was particularly vulnerable and that
Clark took advantage of a position of trust or confidence. (See Cal. Rules of Court,
rules 4.408 & 4.421.)
Clark waived his right to a jury trial on April 10, 2024, and a bench trial took
place on June 20, 2024. The court found Clark guilty on counts 1 and 2. On count 3, the
court found him not guilty of forcible lewd act, but guilty of the lesser included offense
of nonforcible lewd act. The court also found true the two alleged aggravating
circumstances.
On July 25, 2024, the trial court received a handwritten letter from Clark, alleging
that his trial counsel had performed deficiently. The court construed the letter as both a
motion for new trial and a Marsden2 motion and set separate hearings for these motions.
The court appointed separate counsel to represent him in connection with the motion for
new trial.
1 Subsequent statutory references are to the Penal Code.
2 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
2.
Clark, through his new counsel, filed a motion for new trial on October 29, 2024.
The court heard and denied the motion the next day and afterward heard and denied
Clark’s Marsden motion. That same day, the court sentenced Clark to 12 years in prison,
comprised of the middle term of eight years on the forcible lewd act count (count 2) and
consecutive two-year terms (one-third the middle term) on the two counts of nonforcible
lewd act.
FACTS
I. Prosecution’s case
E. was born in August 2005. She was the prosecution’s only witness at trial.
Clark’s wife, Marlene, was E.’s aunt. Clark had known E. since she was little. E. did not
have a relationship with her father, and Clark filled in as a father figure to her. Clark had
two children, a son and a daughter, both of whom were younger than E. E. loved Clark’s
kids and spent lots of time with them.
Around age 12, E. babysat for Clark’s children multiple times over a two-week
period. She would stay overnight at Clark’s apartment in Lemoore on nights when
Marlene had to work a nightshift. During the overnight visits, Clark would also be home
until he left for work in the morning. E. would be alone with the kids in the time between
Clark leaving and Marlene returning home.
Clark and his family lived in a small, two-bedroom apartment, but nobody used
the second bedroom. When E. spent the night, she slept in the same bed as Clark and his
children. She slept in shorts and a T-shirt or tank top. There were times when E. would
be alone in bed with Clark.
During this period, Clark sometimes grabbed E.’s hand and made her touch his
penis. She could feel he had an erection. Feeling scared, she would pretend to be asleep.
On some occasions, Clark stopped only to resume later. Sometimes E. would move her
hand away or pretend to be rolling over; Clark would then wait a few minutes before
moving her hand back. These incidents formed the basis for the count 1 charge.
3.
Another time, E. was lying in bed on her back when Clark pulled up her shirt and
bra and touched her exposed breasts with his hands. She was scared and pretended to be
asleep. This incident was the basis for the count 3 charge.
The last incident of touching began when E. was lying in bed on her side, facing
away from Clark. She knew she was about to be touched, so she moved away from him
in the bed. Clark “then continued to push himself up against [her], his penis against [her]
lower back and butt, and [she] continued to push away up until [she] was basically falling
off the bed.” This incident was the basis of count 2.
E. testified these incidents occurred in the summer of 2016 or 2017. All of them
occurred during the two-week period when she was babysitting.
When E. was 16, she disclosed the touching to her psychiatrist, who she was
seeing for help with self-harming behavior. She later told her mother and made a police
report.
II. Defense case
Clark testified in his own defense, and he called no other witnesses. He admitted
that he had shared a bed with E. and his children. He explained that his wife, Marlene,
grew up sleeping in her parents’ bed, and it was her idea to sleep together as a family.
Clark denied ever touching E. inappropriately.
DISCUSSION
I. Jury trial waiver
Clark claims his waiver of trial by jury was inadequate because it is unclear
whether the waiver was knowing and intelligent. We agree; the record before us does not
affirmatively demonstrate that his waiver was knowing and intelligent under the totality
of the circumstances.
A. Background
The complaint in this case was filed May 20, 2022, and Clark was arraigned on
May 24, 2022. His attorney was appointed for him on the date of his arraignment.
4.
At an April 10, 2024,3 trial readiness conference, Clark’s attorney said the defense
wished to waive its right to a jury trial. Defense counsel stated: “We would like to waive
our right to a jury trial. Vacate the dates as they are currently set, and reset it for a court
trial. And I think [the prosecutor] has a suggestion on a date that works.”
The prosecutor suggested June 20th.
The trial court agreed with that date and then took Clark’s waiver of his right to a
jury trial:
“THE COURT: Mr. Clark, you have a right to have a jury trial, that
is where people who live in the county would come to court, listen to the
evidence, and they decide if it shows beyond a reasonable doubt that you’re
guilty of the charges.
“You also have a right to have a court trial. That is where a judge
listens to the evidence, and decides whether it shows beyond a reasonable
doubt that you’re guilty of the charges.
“The rules of evidence are exactly the same in each trial, the only
difference is [who] listens to the evidence.
“Do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: Do you want to waive your right to a jury trial and
set it for a court trial on June 20th?
“THE DEFENDANT: Yes, sir.
“THE COURT: [Prosecutor], the People waive their right to a jury
trial?
“[THE PROSECUTOR]: Yes, your Honor.
“THE COURT: All right, we’ll go ahead and note the waiver. Set it
for June 20th at 1:30 for a court trial. Vacate the current trial dates that are
set.”
3 Subsequent references to dates are to dates in 2024.
5.
Clark’s right to a jury trial was not discussed at any other time, and Clark did not
sign a written waiver of his jury trial right.
B. Applicable law
A criminal defendant has the constitutional right to a jury trial. (U.S. Const.,
6th Amend.; Cal. Const., art. I, § 16; People v. Sivongxxay (2017) 3 Cal.5th 151, 166
(Sivongxxay).) The defendant may waive the constitutional right to a jury trial, provided
the waiver is knowing, intelligent, and voluntary. (Sivongxxay, at p. 166.) A waiver is
knowing and intelligent if it is made with full awareness of the nature of the right and the
consequences of abandoning it. (Ibid.) It is voluntary if it was the product of a free and
deliberate choice, rather than intimidation, coercion, or deception. (Ibid.)
Whether a defendant satisfies that standard “ ‘must depend upon the unique
circumstances of each case.’ ” (Sivongxxay, supra, 3 Cal.5th at p. 166.) Our Supreme
Court has “persistently declined to mandate any specific admonitions describing aspects
of the jury trial right.” (People v. Daniels (2017) 3 Cal.5th 961, 992 (lead opn. of
Cuéllar, J.) (Daniels); Sivongxxay, at p. 167 [“Our precedent has not mandated 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
circumstances.” (Sivongxxay, at p. 166.)
A reviewing court’s task is to independently examine the record to determine
whether the defendant’s jury waiver was knowing, intelligent, and voluntary. (See
People v. Doolin (2009) 45 Cal.4th 390, 453.) We will “uphold the validity of a jury
waiver ‘ “if the record affirmatively shows that it is voluntary and intelligent under the
totality of the circumstances.” ’ [Citation.] We do not start with a presumption of
validity that may only be rebutted by signs of a defendant’s confusion or unwillingness in
entering a waiver. Instead, a reviewing court satisfies itself of a legitimate waiver only
when the record affirmatively demonstrates it was knowing and intelligent.” (Daniels,
supra, 3 Cal.5th at p. 991 (lead opn. of Cuéllar, J.).)
6.
Our Supreme Court has eschewed “any rigid formula or particular form of words
that a trial court must use in taking a jury waiver[.]” (Sivongxxay, surpa, 3 Cal.5th at
p. 169; see also id. at p. 170 [“we emphasize that our guidance is not intended to limit
trial courts to a narrow or rigid colloquy”].) That said, it has emphasized “the value of a
robust oral colloquy in evincing a knowing, intelligent, and voluntary waiver of a jury
trial.” (Id. at p. 169.) The court has recommended “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 make the decision. (Ibid.)
The Supreme Court has also recommended “that the trial judge take additional
steps as appropriate to ensure, on the record, that the defendant comprehends what the
jury trial right entails. A trial judge may do so in any number of ways—among them, by
asking whether the defendant had an adequate opportunity to discuss the decision with
his or her attorney, 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. 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.” (Sivongxxay, supra, 3 Cal.5th at pp. 169–170.)
C. Analysis
The record here does not affirmatively show that Clark’s jury trial waiver was
knowing and intelligent under the totality of the circumstances. The court’s advisement
addressed only one and a half of the four “basic mechanics” of a jury trial described in
Sivongxxay: that a judge alone would decide guilt if Clark forwent a jury trial, and that
the jury would be composed of “people who live in the county.” But the advisement
7.
omitted that a jury consists of 12 people, that jurors are selected from a larger pool of
prospective jurors in a process in which he could participate through counsel, or that a
jury verdict must be unanimous––meaning that the prosecution would have to convince
all 12 jurors of his guilt beyond a reasonable doubt, rather than a single judge.
Nothing in the record shows Clark had ever been advised of these omitted
mechanics. He had no prior criminal history, and thus no prior occasion to receive such
advisements from a court or otherwise. (See Sivongxxay, supra, 3 Cal.5th at pp. 167–168
[defendant’s previous experience with the criminal justice system is relevant to whether a
waiver was knowing and intelligent].) Nor does the record show a written waiver form
was used. (See People v. Weaver (2012) 53 Cal.4th 1056, 1070 [though not required,
written waiver form is helpful to establish the adequacy of a jury waiver].)
The record also does not reflect that Clark had a meaningful discussion with his
attorney about the mechanics of a jury trial or the relative advantages and disadvantages
of each type of trial. It is reasonable to infer that he and his counsel discussed the
threshold question of whether to waive jury trial, given that counsel initiated the waiver
request on Clark’s behalf. But nothing in the record supports an inference that their
discussion extended to the nature of the jury trial right itself—the specific features that
distinguish it from a bench trial and that bear on the wisdom of the waiver. The record is
silent on what counsel communicated to Clark about these mechanics, and silence does
not satisfy the affirmative-record requirement. (Daniels, supra, 3 Cal.5th at p. 991 (lead
opn. of Cuéllar, J.).)
The People argue that Clark’s two years of representation by counsel, his silence
when counsel announced the waiver, and his affirmation that he understood his rights
demonstrate a knowing and intelligent waiver. His silence when counsel announced the
waiver may speak to voluntariness, but none of these circumstances establishes that the
waiver was knowing and intelligent. Two years of representation says nothing about
what counsel actually communicated to Clark about the mechanics of the jury trial right.
8.
That he acquiesced in counsel’s announcement and affirmed he understood his rights
likewise does not establish that he understood what he was giving up. As Justice
Cuéullar observed in Daniels, a defendant’s failure to voice confusion or objection is an
unreliable indicator of informed waiver: “ ‘You don’t know what you don’t know’
encapsulates the futility of relying on defendants to raise questions or identify
misunderstandings on their own when they lack the very basis to understand what lies
beyond the scope of their knowledge.” (Daniels, supra, 3 Cal.5th at p. 995 (lead opn. of
Cuéllar, J.).) None of these circumstances, individually or collectively, constitute the
affirmative record of knowing and intelligent waiver the law requires.
People v. Jones (2018) 26 Cal.App.5th 420 (Jones) is instructive. There, a two-
question colloquy conducted solely by the prosecutor asked the defendant whether she
understood her right to a jury trial and agreed to waive it and have the judge alone
“ ‘decide the case.’ ” (Id. at p. 428.) The record did not show whether the defendant’s
attorney had ever discussed the nature of a jury trial with her, including that a jury would
be made up of 12 peers from the community. (Ibid.) The defendant also had no prior
experience with the criminal justice system and thus had never been advised of her rights
by a court. (Id. at pp. 436–437.) The Jones court held that the record did not
affirmatively show a knowing and intelligent waiver under the totality of the
circumstances. (Id. at p. 437.)
The only difference between the advisement colloquy here and the one in Jones is
that Clark was informed the jury consisted of county residents. The colloquy here was
thus only marginally more informative and does not warrant a different outcome. Like
the Jones defendant, Clark had no prior experience with the criminal justice system and
received no advisement on the remaining “basic mechanics” of a jury trial. Also as in
Jones, the record contains no indication that counsel supplied the information the court
omitted.
9.
We conclude the record does not affirmatively demonstrate that Clark’s jury trial
waiver was knowing, intelligent, and voluntary under the totality of the circumstances.
The error is structural, requiring reversal of all of Clark’s convictions regardless of the
strength of the evidence. (Jones, supra, 26 Cal.App.5th at p. 429.)
II. Sufficiency of the evidence on count 2
Although we conclude that Clark’s convictions must be reversed because of the
lack of a valid waiver of his right to a jury trial, we also must address his claim that his
conviction on count 2 of forcible lewd act was not supported by sufficient evidence to
determine whether he may be retried on this count. (Jones, supra, 26 Cal.App.5th at
p. 437.)
Count 2 was based on E.’s testimony about the incident where Clark pushed his
penis against her back and buttocks. As evidence of force, the People cited E.’s
testimony that Clark had his hands on her hips and followed her across the bed as she
tried moving away. He contends there was insufficient evidence of force because there
was no evidence that he held E.’s hips “as a means to commit a lewd act he could not
otherwise have committed.” We conclude there was sufficient evidence of force.4
A. Standard of review
We review sufficiency of the evidence claims under the substantial evidence
standard. We review the record in the light most favorable to the judgment below to
determine whether there is substantial evidence from which any rational trial of fact
could find the defendant guilty beyond a reasonable doubt. (People v. Emanuel (2025)
17 Cal.5th 867, 885.) Substantial evidence is reasonable, credible, and of solid value.
4 In the initial round of briefing, the parties addressed only the theory of force. In
granting rehearing, we solicited supplemental briefing from the parties on whether
sufficient evidence supported the conviction on theories of force, fear, or duress. As we
conclude the conviction is supportable on a force theory, we need not address the other
theories.
10.
(People v. Davis (2024) 107 Cal.App.5th 500, 509.) We do not reweigh the evidence.
(People v. Covarrubias (2016) 1 Cal.5th 838, 890.) While we favor the judgment with
all reasonable inferences, an inference based on speculation is not a reasonable one.
(People v. Feise (2025) 115 Cal.App.5th 454, 460; People v. Ware (2022) 14 Cal.5th
151, 167–168.)
B. Law and analysis
Section 288, subdivision (b)(1), makes punishable the commission of lewd or
lascivious acts against a child under the age of 14 committed “by use of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury on the victim or another
person[.]” Force under this statute means physical force that is “ ‘substantially different
from or substantially greater than that necessary to accomplish the lewd act itself.’ ”
(People v. Soto (2011) 51 Cal.4th 229, 242.) “ ‘[A]n act is forcible if force facilitated the
act rather than being merely incidental to the act.’ ” (People v. Morales (2018)
29 Cal.App.5th 471, 480.) “ ‘[A]cts of grabbing, holding and restraining that occur in
conjunction with the lewd acts themselves’ are insufficient to support a finding that the
lewd act was committed by means of force.” (Ibid.)
The only issue here is whether substantial evidence shows Clark used force in
committing the lewd act that formed the basis of count 2. He does not dispute that
substantial evidence shows he committed the lewd act.
In our view, substantial evidence shows Clark used force to facilitate the lewd act.
The People assert that Clark “held [E.’s] hips to prolong the touching of his penis to her
back as she attempted to scoot away from him on the bed.” They contend the holding of
her hips constituted force under section 288, subdivision (b)(1), “because the conduct was
substantially different from or substantially greater than that necessary to accomplish the
lewd conduct of touching his penis to her back.” The trial court could reasonably infer,
they argue, that Clark used force to keep E. “close enough to have his penis on her back
until she almost fell off the bed.” They assert, “Had he not been holding her in a forceful
11.
way it would have been easier for her to disengage from the touching and limit the
duration of the lewd act.”
We agree with the People. It could be reasonably inferred from the evidence of
Clark’s hands being on E.’s hips while she “continued to push away from [him]” in the
bed that he was applying force with his hands to prolong the touching of his penis to her
back. Thus, substantial evidence shows that Clark having his hands on E.’s hips was
more than incidental to the lewd act. Accordingly, the element of force was supported by
substantial evidence.
Clark may be retried for forcible lewd act under section 288, subdivision (b)(1), in
count 2.
DISPOSITION
The judgment is reversed, and the matter is remanded for a new trial.
SNAUFFER, J.
WE CONCUR:
LEVY, Acting P. J.
FRANSON, J.
12.