People v. Evanson

• Citation: 71 Cal.Rptr. 503,265 Cal.App.2d 698
• Decision Date: 16 September 1968
• Docket Number: Cr. 6512
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. John Nary EVANSON, Defendant and Appellant.

Page 503

71 Cal.Rptr. 503

265 Cal.App.2d 698

The PEOPLE of the State of California, Plaintiff and Respondent, v. John Nary EVANSON, Defendant and Appellant.

Cr. 6512.

Court of Appeal, First District, Division 4, California.

Sept. 16, 1968.

Rehearing Denied Oct. 16, 1968.

Hearing Denied Nov. 13, 1968.

Jay R. Mayhall, San Francisco, for appellant (under appointment of the Court of Appeal, First Appellate District).

Thomas C. Lynch, Atty. Gen., State of California, Albert W. Harris, Jr., Asst. Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for respondent.

CHRISTIAN, Associate Justice.

After a nonjury trial, defendant appeals from a judgment convicting him of three counts of felony (violation of Health and Safety Code, section 11531, sale of marijuana). Consideration of the contentions advanced on appeal does not require a detailed recital of the facts. We have reviewed the record and find that there was ample evidence that appellant gave two marijuana cigarettes to Officer Julius Beretta on January 30, 1967 (count 1), that appellant actively participated in the sale of three kilograms of marijuana to Officer Beretta on February 3 (count 2), and that on February 8 appellant took part in the sale of another kilogram of marijuana to Officer Beretta (count 3).

The Attorney General justly concedes that on count one the judge actually found appellant guilty of the included offense of possession and that the abstract of judgment reflected a clerical error in reciting that under count one there was a conviction of a sale. Possession of marijuana (Health and Safety Code, section 11530) is an offense included within the charge of sale. (People v. Rosales (1964) 226 Cal.App.2d 588, 38 Cal.Rptr. 329.) Accordingly it is appropriate to modify the judgment to conform to the court's actual determination.

The principal issue presented in this appeal is whether there was a valid waiver of defendant's right to trial by jury. California Constitution, article I, section 7, provides in 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, * * *.' The questioned waiver occurred as follows:

'MR. SPOSETO (defense counsel): Ready to proceed, Your Honor. The defendant at this time, Your Honor, is going to waive his right to a jury. Stand up, Mr. Evanson, please. I have explained to Mr. Evanson his constitutional rights to a jury trial and explained to him the nature of a criminal case. He understands that and he desires to proceed without the necessity of a jury.

'THE COURT: Very well. Is that agreeable with you, Mr. Evanson?

'THE DEFENDANT: Yes sir.

'THE COURT: All right.

'MR. CHANG: Ready for the People.

'THE COURT: All right. You may proceed.'

Citing People v. Crouch (1963) 218 Cal.App.2d 157, 32 Cal.Rptr. 141, appellant contends that any jury waiver which may be drawn from the foregoing language is only implicit and is therefore ineffective. It is true that mere acquiescence, or nonverbal conduct on the part of the accused, does not effect a waiver of trial by jury. (People v. Holmes (1960) 54 Cal.2d 442, 5 Cal.Rptr. 871, 353 P.2d 583.) But here appellant's response was verbal and explicit: 'Yes sir' to the court's question, 'Is that agreeable with you, Mr. Evanson?' Therefore, we proceed to appellant's next contention, which is that the judge's question was ambiguous in referring to an antecedent statement by defense counsel which included four separate elements. The somewhat offhand language used by the judge certainly does not represent good usage; it would have been better if the judge had, consistent with the practice usually followed by the judges of this state, asked the accused directly whether he waived his right to trial by jury. But counsel's four-point statement which the judge referred to began with the declaration that the defendant 'is going to waive his right to a jury.' The further recitals dealt directly with the intended waiver and the final words explicitly stated 'he desires to proceed without the necessity of a jury.' Thus we do not see how the court's question could have been taken as referring to anything but a jury waiver; hence defendant's affirmative response, which both referred to the import of the court's question and adopted counsel's statement, was a waiver by language of the right of trial by jury. (Cf. People v. Di Blasi (1961) 198 Cal.App.2d 215, 221, 18 Cal.Rptr. 223; People v. McDaniel (1958) 157 Cal.App.2d 492, 497, 321 P.2d 497.)

Appellant further complains that defense counsel and the prosecutor did not join in the waiver. But it is settled that where an express waiver has been received from the defendant, the acquiescence of defense counsel and the prosecutor will be given effect as implied waivers. It is only the waiver of the defendant himself that must be expressed in language. (Campbell v. Municipal Court (1960) 183 Cal.App.2d 790, 7 Cal.Rptr. 387; People v. Brooks (1957) 154 Cal.App.2d 631, 316 P.2d 435.)

Pointing to Duncan v. State of Louisiana (1968) 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, the recent holding of the United States Supreme Court that due process guarantees trial by jury in state prosecutions for all but petty offences, appellant contends that the judge should not have accepted a waiver of trial by jury without first giving him full advice concerning his...