People v. Osmon
| Decision Date | 23 August 1961 |
| Docket Number | Cr. 7610 |
| Citation | 15 Cal.Rptr. 263,195 Cal.App.2d 151 |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Walter John OSMON, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
McGrew Willis, Beverly Hills, for appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Matthew M. Kearney, Deputy Atty. Gen., for respondent.
The appellant was accused of the crime of burglary. In a trial by the court without a jury, he was found guilty of burglary of the first degree. He appeals from the judgment and from the order denying his motion for a new trial.
The only contention made on this appeal is that the trial court abused its discretion in denying the appellant's motion for permission to withdraw his waiver of trial by jury. The essential facts will be stated.
When the case came on for trial on November 18, 1960, the appellant was represented by a deputy public defender. The appellant's right to a jury trial was waived in the manner provided by law. It was stipulated that the court could determine the case upon the testimony given at the preliminary examination and upon the written reports of the doctors who had examined the appellant, except that the right was reserved to both sides to introduce additional evidence. The matter was then continued to December 12. All witnesses were excused from further attendance after the deputy public defender had said that the appellant would not 'require any witnesses.' However, on December 5, 1960, the deputy public defender made a motion that Mr. Willis be substituted as the appellant's attorney in the place of the public defender; that motion was granted. Thereupon Mr. Willis made a motion that the appellant be permitted to withdraw his waiver of trial by jury and to be relieved of the stipulation heretofore set forth. Mr. Willis stated that he desired to cross-examine the witnesses for the prosecution upon the subject of the appellant's intoxication. 1 The matter was continued to the following morning and on that day, December 6, the motion presented by Mr. Willis was denied.
On December 12, the date to which the trial had been continued, the appellant sought a further continuance because of the absence of a physician whom he wished to call as a witness. With the consent of the district attorney, the matter was continued to December 22. After the continuance had been granted, the appellant renewed his request that he be permitted to withdraw his waiver of trial by jury. The deputy district attorney stated that pursuant to the prior stipulation and the agreement of the deputy public defender an exhibit had been returned 'to the victim,' which exhibit 'contained his wallet and longshoreman's papers without which he could not work.' The court finally stated: 'I am not making any definite decision on it now but I will say to both sides that they had better be prepared for any eventuality.'
On December 22, counsel for the appellant stated to the court in part as follows: In response to the court's inquiry, the deputy district attorney said that the prosecution's witnesses were present. The court denied the motion and ordered the case transferred to another department 'for immediate trial.' The transfer appears to have been motivated by a desire on the part of the court to avoid, in the trial of the case on its merits, any prejudice which might have been engendered in the course of the proceedings heretofore discussed.
Judge Nye was the judge presiding in the department to which the case was transferred by the judge who had previously refused to permit the appellant to withdraw his waiver of trial by jury. The motion was not renewed and the trial proceeded in accordance with the stipulation heretofore stated. The testimony given at the preliminary examination, which was before the court pursuant to the stipulation, was that of Mr. Olivera, whose apartment was entered, and that of Mr. McPherson, a police officer. Four witnesses testified on behalf of the appellant. The prosecution then called two witnesses in rebuttal, one being Mr. Olivera and the other being a police officer, Mr. Tiner. As has been stated, the court found the defendant guilty of burglary of the first degree.
The applicable law was clearly stated in an opinion written by Judge Daniel N. Stevens in People v. Melton 125 Cal.App.2d Supp. 901, 271 P.2d 962, 46 A.L.R.2d 914. Therein it was said, 125 Cal.App.2d Supp. at pages 904-905, 271 P.2d at page 963: ...
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