Waiver of the jury trial right on a charged enhancement includes waiver of any lesser included enhancements.
A defendant may waive his right to a jury trial if the waiver is knowing, voluntary and intelligent. (People v. Collins (2001) 26 Cal.4th 297.) A promise of leniency if the defendant will waive his right to jury trial renders a waiver involuntary and the error is structural, requiring reversal. (Arizona v. Fulminante (1991) 499 U.S. 279; Rose v. Clark (1986) 478 U.S. 570.) In this case the court indicated that it would consider appellant’s waiver of the right to jury trial a mitigating factor at sentencing. If the court had taken appellant’s waiver at this point the waiver would have been involuntary. Because Dixon instead called for a jury panel, his later jury trial waiver and assertion of right to a court trial was not the result of the offer to consider the waiver as a mitigating factor. Further, Dixon verbalized reasons for a court trial that were not related to the offer of mitigated sentencing. Dixon was charged with personal use of a firearm but the court found only use of a deadly weapon enhancement (Pen. Code, sec. 12022, subd. (b)) true as there was a question if the “firearm” was actually a BB gun, not subject to Penal Code section 12022.53. Dixon’s waiver of jury trial as to the 12022.53 enhancement resulted in waiver on the lesser included 12022, subdivision (b) enhancement.