People v. Pechar
| Decision Date | 07 February 1955 |
| Citation | 130 Cal.App.2d 616,279 P.2d 570 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Respondent, v. Alfred PECHAR, Appellant. Crim. 3027. |
Wainwright & Racanelli, Harry S. Wainwright, San Francisco, for appellant.
Edmund G. Brown, Atty. Gen. of the State of California, Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., San Francisco, for respondent.
Defendant appeals from a judgment of conviction of violating Penal Code section 288 rendered by the court sitting without a jury. At the outset appellant presents the argument that the record does not show a waiver of jury trial in the manner provided in Art. I. sec. 7 of the California Constitution, which requires such waiver to be 'expressed in open court by the defendant and his counsel'. This has been construed repeatedly to require an express as distinguished from an implied consent to the waiver by the defendant personally, as well as by his counsel. People v. Garcia, 98 Cal.App. 702, 277 P. 747; People v. Wilkerson, 99 Cal.App. 123, 278 P. 466; People v. Spinato, 100 Cal.App. 600, 280 P. 691; People v. Woods, 126 Cal.App. 158, 14 P.2d 313; People v. Washington, 95 Cal.App.2d 454, 213 P.2d 70. The right to trial by jury in a criminal case is a sacred one and accordingly the method of waiver provided in the constitution must be strictly followed. For this reason 'it is necessary that the defendant personally express in open court that he consents to a waiver of a trial by jury'. People v. Washington, supra, 95 Cal.App.2d at page 455, 213 P.2d at page 71. Even in civil cases statutes providing for waiver of jury trial must be strictly followed. People v. Metropolitan Surety Company, 164 Cal. 174, 128 P. 324.
The reporter's transcript showed no expression of waiver by defendant personally. It showed only a waiver by appellant's counsel and by the district attorney. The record showed in this respect the following:
'The Court: Does the defendant waive trial by jury?
'Mr. Wainwright (Appellant's Attorney): Yes, sir.
'The Clerk: Do you consent, Mr. District Attorney?
'Mr. Rudden: Surely.'
A motion to augment the record was granted by this court on the affidavit of Mr. Rudden, the prosecuting attorney, that when the court asked 'Does the defendant waive trial by jury?' and after his counsel answered 'Yes, sir', the defendant 'moved his head downward in a nodding motion.' This affidavit was supported by one of the trial judge to the effect that, while he had no independent recollection, it has been his custom always to require affirmative action from the defendant personally waiving a jury. From the custom the trial judge concluded: 'It is my sincere belief that this custom was followed in the case of People v. Pechar * * *.'
Affidavits of appellant and his attorney were filed in which they asserted that they had no recollection of appellant moving his head as stated in Mr. Rudden's affidavit.
Appellant argues that the language of the constitution 'expressed in open court by the defendant' can only be satisfied by the defendant's consent given verbally. The attorney general argues that consent may be 'expressed' by conduct clearly indicating consent as well as by words. The verb 'express' can bear both meanings. It is defined in Webster's New International Dictionary, 2d Ed.: 'To represent in words, utter; as to express an opinion' (so far the definition refers to verbal expression only, but it continues) 'hence, to make known or manifest; to give or convey a true impression of * * * to show; signify * * *' (definitions which may be satisfied by other than verbal communication).
The real problem is which meaning of 'expressed' was intended when the constitution was amended in 1928 to permit the waiver of a jury trial in criminal cases.
The common method of conducting all court proceedings is by the use of language. The constitution requires all court proceedings to be conducted in the English language, Cal.Const. Art. IV, sec. 24, and where a witness does not understand and speak...
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...* * *." California courts applying this constitutional provision leave little doubt as to its meaning. Thus, in People v. Pechar, 1955, 130 Cal.App.2d 616, 279 P.2d 570, the Court there "This has been construed repeatedly to require an express as distinguished from an implied consent to the......
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