People v. Crouch

• Decision Date: 11 July 1963
• Docket Number: Cr. 4337
• Citation: 32 Cal.Rptr. 141,218 Cal.App.2d 157
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Otis J. CROUCH, Defendant and Appellant

Page 141

32 Cal.Rptr. 141

218 Cal.App.2d 157

PEOPLE of the State of California, Plaintiff and Respondent, v. Otis J. CROUCH, Defendant and Appellant

Cr. 4337.

District Court of Appeal, First District, Division 1, California.

July 11, 1963.

Joseph Genser, Richmond, for appellant.

Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., Deputy Atty. Gen., San Francisco, for respondent.

SULLIVAN, Justice.

Defendant appeals from a judgment of conviction of violating section 288a of the Penal Code rendered by the court sitting without a jury. ¹ The sole question presented here in whether the defendant properly waived a trial by jury. We have concluded that he did not.

The record shows that when the case was called for trial on June 26, 1962, the prospective members of the jury were present in the courtroom. It also indicates that there had been some previous discussion among counsel and the judge in regard to a jury. After the roll of the prospective jurors was called by the clerk the following occurred: 'THE COURT: We will take that up later, Madam Clerk. Now gentlemen of counsel, the district attorney and counsel for the defendant, I understand at this time you have a communication to address to the Court that will dispense with, perhaps, the members of the panel subpoenaed for jury service this morning. MR. BASSETT: May I be heard, Your Honor? THE COURT: The Court recognizes Mr. Bassett, counsel for the defendant. MR. BASSETT: May it please the Court, the defendant will stipulated [sic] with the prosecution attorney, if he is agreeable, that the jury may be dispensed with and tried by the Court. THE COURT: Is that stipulation acceptable to the prosecution? MR. MICKLES: It is, Your Honor. THE COURT: Very well. Madam Clerk, what instructions have we for this panel? THE CLERK: These jurors are to go to Department 5.'

The court thereupon excused the prospective jurors and proceeded with the trial of the case without a jury.

The clerk's minutes for June 26, 1962, contained in the clerk's transcript now before us state in relevant part that '[t]he defendant with his counsel Warren Bassett and the District Attorney by Lindsay M. Mickles, deputy, appear in open Court at this time, * * * Thereupon the defendant waives a jury trial. * * *'

We have carefully examined the record and the foregoing excerpts are the only ones bearing upon the problem before us.

Article I, section 7 of the Constitution of California provides in relevant part that: 'A trial by jury may be waived in all criminal cases, by the consent of both parties, expressed in open court by the defendant and his counsel * * *.' (Emphasis added.) The method of waiver prescribed scribed by the foregoing constitutional provision must be strictly followed. (People v. Washington (1949) 95 Cal.App.2d 454, 455, 213 P.2d 70; People v. Pechar (1955) 130 Cal.App.2d 616, 617, 279 P.2d 570; People v. Walker (1959) 170 Cal.App.2d 159, 165, 338 P.2d 536.) As said in People v. Washington, supra: 'In order that a criminal case may be tried without a jury, it is necessary that the defendant personally express in open court that he consents to a waiver of a trial by jury, and it is also necessary that the counsel for the defendant also express in open court that he consents to a waiver of a trial by jury.' The defendant's waiver of his right to a trial by jury must be expressed by him personally and by the use of language in open court and will not be implied from his conduct. (People v. Holmes (1960) 54 Cal.2d 442, 443-444 and see cases collected at p. 444, 5 Cal.Rptr. 871, at p. 873, 353 P.2d 583, at p. 584; People v. Walker, supra.)

In the instant case the reporter's transcript of the oral proceedings clearly shows that the defendant did not personally and by the use of language waive his right to a jury trial. Indeed such transcript, which is certified by the judge to be a full, true and correct transcript of the proceedings, shows that the defendant did not make any statement at all on the matter. The Attorney General, recognizing that the above cited cases apply, has with commendable candor advised us that in the light of the record it cannot be contended that there was the requisite express verbal waiver by the defendant himself.

Is a valid waiver, nonetheless, established on this record by the recital in the clerk's minutes that '[t]hereupon the defendant waives a jury trial * * *'? As was stated in People v. Washington, supra, 95 Cal.App.2d 454, 456, 213 P.2d 70, where the reporter's transcript and the minutes are conflicting and the question arises as to which is controlling in determining whether the defendant has validly waived a trial by jury '[t]he answer * * * is to be determined from a consideration of the circumstances under which the proceedings were had. [Citations.]' In People v. Washington, supra, there were two defendants represented by separate counsel. The clerk's minutes read: 'Trial by jury is waived by the defendants and all counsel.' Commenting on the nature and effect of this record, the court said: 'The clerk was...