People v. Pechar

DOOLING, J.

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 article I, section 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 trial by jury.”

(People

v.

Washington, supra,

95 Cal.App.2d p. 455.) Even in civil cases statutes providing for waiver of jury trial must be strictly followed.

(People

v.

Metropolitan Surety Co.,