People v. Davis

VALLÉE, J.

By information defendant was accused of carrying concealed within an automobile under his control a .38-caliber revolver in violation of section 12025 of the Penal Code. He was also accused of having been convicted of two prior felonies and with having served a prison term for each. He pleaded not guilty, denied the first prior conviction, and admitted the second. A jury trial was duly waived. On stipulation of counsel for the People and defendant, the People’s case was submitted on the testimony taken at the preliminary examination. Additional evidence was taken. Defendant was found guilty and the first prior conviction was found to be true. He appeals from the judgment and an order denying his motion for a new trial.

First it is defendant’s contention that the court erred in basing his conviction in part on the evidence in the preliminary transcript for the reason he did not personally waive his right to be confronted by the witnesses against him. The point is not meritorious. Defendant’s counsel and the district attorney in open court in the presence of defendant stipulated that the People’s case be submitted on the evidence in the preliminary transcript. It is well settled that the right of a defendant to be confronted with the witnesses against him may be waived, and that such waiver is accomplished when counsel for the defendant stipulates that the evidence taken at the preliminary examination may be considered by the court as evidence at the trial.

(People

v.

Hart,

121 Cal.App.2d 301 [262 P.2d 865] ;

People

v.

Donnelly,

95 Cal.App.2d 595, 597-8 [213 P.2d 502].)

The revolver alleged to have been concealed in the vehicle under defendant’s control was received in evidence. Defendant urges that it was error to admit it in evidence. He argues there was no showing that the police had a warrant or probable cause to search his automobile and that therefore the search was unlawful and the fruits thereof should not have

[35]

been admitted as evidence. Defendant did not object to the introduction of the revolver in evidence. Having failed to object at the trial, he may not complain on review.