WOOD, P. J. In count 1 of an information the defendant was accused of robbery, committed on February 24, 1960. In count 2 he was accused of attempted robbery, committed on February 27, 1960. It was alleged therein that in 1950 defendant had been convicted Of robbery. Trial by jury was waived. Defendant was adjudged guilty on count 1, and not guilty on count 2.
It was established that a robbery was committed on February 27, 1960, about 8:30 p. m., at a liquor store. The victim of the robbery identified defendant as the robber. Defendant asserted an alibi.
[281]Since defendant’s appeal relates principally to a proceeding which was referred to as a “new trial,” it will be necessary to state details of that proceeding.
The judge, after announcing his findings as above stated, said: “I will enter a motion for a new trial and for probation and sentence.” Then (on July 11, 1960) he made an order continuing those matters to August 1, 1960. There were further continuances to August 8, 9, and 15. On August 15, 1960, counsel for defendant (not present counsel) filed his own affidavit “In Support of Motion for New Trial.” He stated therein that before the trial he had received the names and addresses of certain witnesses, but he was unable to locate some of them, namely, the wife of defendant and one Gelabert who were at defendant’s home on February 24, 1960 (the date of the robbery); he (affiant) had requested a continuance “trusting” that the witnesses might be located, and the case was continued twice; defendant ‘ ‘ maintained ’ ’ that he was at home at the times the alleged acts were committed, and that the witnesses who would so testify could not be located in time for the trial; that the witnesses had been located and served with subpoenas to appear on said August 15. In that affidavit, counsel for defendant requested that the court “vacate and set aside the judgment so rendered as to count one of the information and permit the witnesses to so testify.”
On August 15 the judge, on his own motion, continued the matters to August 16.
With respect to the motion for a new trial, the reporter’s transcript shows: That at the beginning of the session on August 16, counsel for defendant said: “ [W]e wish to put on some additional evidence as to Count I . . . which evidence, counsel for defendant was unable to . . . produce at the time of trial . . . due to the . . . circumstances as set forth in the affidavit, and we have the witnesses now present, and with your Honor’s permission and granting us permissing to put on this evidence, we wish to proceed.” The deputy district attorney made statements to the effect that the proposed evidence was not newly discovered evidence; and that the names of the witnesses had not been given to the sheriff in an attempt to locate the witnesses. Counsel for defendant said that he had had difficulty in locating the witnesses, but finally had located them (alibi witnesses), including the common-law wife of defendant—and that she was present in court. The judge said: “I am inclined to allow them to produce what they can, I will have to grant the motion for a [282]new trial and then you can resubmit it on the testimony heretofore taken plus whatever testimony is taken today.” The deputy said: “Whatever your Honor desires.” The judge said: “I will grant the motion for a new trial.” Then it was stipulated that the matter might be determined by the court upon the testimony theretofore taken and upon any further evidence that is taken. Counsel for defendant said that this is only as to count 1. The judge said: “That is correct. I found him not guilty on Count 2 . . ., and we are going to consider all the evidence that we have taken up to now, plus whatever evidence you are going to present today.” Counsel for defendant said: "That is correct. ’ ’ The judge said: "That will be the order of the Court. You may proceed.”
With respect to the proceedings on August 16, the minutes of the court show, in part: “Motion for new trial as to Count 1 is granted. Jury trial is again waived and cause is submitted on testimony taken at first trial. People rest. Peter Ernest Galbraith and Wilbur Charles McCloud are sworn and testify on behalf of the defendant. Defendant rests. Cause is argued. Defendant is found ‘Guilty’ as charged. Fixed at second degree. Submitted on probation report on file. No finding on priors.”
It thus appears from the reporter’s transcript that the matter of a jury trial was not mentioned in connection with the proceedings on August 16; and it appears from the minutes of that day that a jury trial was waived.
Defendant appeals from the judgment of conviction on count 1.
Appellant contends (through counsel who was not present at the trial) that the court imposed, as a condition of granting a new trial, the condition that the case be resubmitted on the former testimony plus testimony to be presented by defendant on that day, August 16; and that the imposing of the condition prevented defendant from objecting to the condition and deprived him of a trial by jury. He argues to the effect that all testimony should have been produced anew (as provided in Pen. Code, § 1180), and that there should have been a jury trial unless he personally waived a trial by jury (as provided in Const., art. I, § 7).
It is to be noted that the alleged motion for a new trial, which was made on the ground of newly discovered evidence, was not supported by an affidavit of a witness by whom newly discovered evidence was to be given. (See Pen. Code, § 1181.) The affidavit was made by the attorney for [283]defendant. It thus appears that there was not a sufficient legal basis for a new trial on the ground of newly discovered evidence, and the court would have been justified in denying the motion. It appears further, however, that the defendant was not seeking a new trial in the sense that there would be a retrial, but, on the contrary, that the finding of guilt on count 1 would be vacated so that defendant might present additional alibi evidence for the consideration of this trial judge. The attorney’s affidavit does state in the caption thereof that it is an affidavit in support of a motion for a new trial, but the prayer of the affidavit, and the oral statement of the attorney at the hearing of the motion, indicate that the object to be accomplished by the motion was an opportunity to present the testimony of additional alibi witnesses for the consideration of this trial judge. The prayer of the affidavit asks that the court “vacate and set aside the judgment” as to count 1 and permit the alibi witnesses to testify. The oral statement of the attorney, at the beginning of the proceeding on August 16 (when motion was to be considered) was in substance that “we wish to put on some additional alibi witnesses as to count 1,” that the witnesses which could not be produced at the trial are “now present,” and that with the permission of the court “we wish to proceed.” Thereupon, the judge, after saying in effect that he was inclined to allow defendant to produce the evidence, said he would grant the motion for a new trial, “and then you can resubmit it on the testimony heretofore taken plus whatever testimony is taken today.” The attorney for defendant and the deputy district attorney then stipulated that the matter might be determined “by the Court” upon the testimony theretofore taken and upon any additional “evidence that is taken this morning.” After the attorney for defendant said that “this” (stipulation) was only as to count 1 because the court had already acquitted defendant as to count 2, the judge said, '[W] e are going to consider all the evidence that we have taken up to now, plus whatever evidence you are going to present today.” The attorney for defendant said, “That is correct. ’ ’
Although, as above stated, the trial judge could have ruled that the affidavit regarding the motion was not a sufficient legal basis for a new trial and that his finding of guilt should stand as announced, he chose to give defendant an opportunity to present the additional evidence in the manner and at the time requested by defendant, that is, by vacating [284]the finding of guilt as to count 1 and permitting the additional witnesses who were present to testify at that time. It is true that the judge, in announcing the procedure by which he intended to accomplish the objective of receiving the additional evidence as requested by defendant, stated that he would grant the motion for a new trial, but it is also true that at the same time and as a part of such intended procedure he said that the matter might be resubmitted on the former testimony and the additional testimony. Defendant’s attorney expressly agreed to such procedure. It was stipulated that the matter might then be submitted to the court upon the former testimony and the additional testimony. Submitting the cause, by stipulation, upon the former testimony was analogous to submitting a cause, by stipulation, upon the testimony of a preliminary examination. Such latter procedure is recognized as a proper method of presenting a cause for trial. (People v. Wallin, 34 Cal.2d 777 [215 P.2d 1].) The ruling herein was in favor of the defendant—he obtained what he was seeking—that is, a reopening of the trial so that the testimony of the additional alibi witnesses would be included as a part of the evidence at the trial. It was obvious, of course, that such additional evidence could not be included as a part of that evidence if the defendant required a jury trial. There was no indication that he wanted a jury trial. He had just been acquitted on count 2 in a nonjury trial. He, personally, had waived a jury trial when the taking of the former testimony was commenced. Under the circumstances herein, his request that the court vacate the finding of guilt as to count 1 and then and there hear the testimony of the additional witnesses, and his acceptance of the method of procedure announced and followed by the court, were tantamount to expressly and personally waiving a jury trial in the further proceeding. Defendant was not prevented from objecting to the procedure which was calculated to, and which did, afford him his requested opportunity of presenting additional evidence; and he was not deprived of the right of trial by jury.
Appellant also contends that the evidence was insufficient to support the judgment of conviction. He argues to the effect that the victim’s testimony identifying the defendant as the robber was uncertain and unreliable.
On February 24, 1960, about 8:30 p. m., while Mr. Copeland, an employee in a liquor store in Los Angeles, was standing at the counter in the store, he saw a man walk toward [285]the counter. With his left hand, the man was holding a gauze bandage, about the size of a folded handkerchief, over his face—-the bandage was over his mouth and the lower part of his nose. The man said, “Open up the register.” At that time the man had a small automatic gun in his right hand and was pointing the gun at the employee, who opened the register. The man said, “Lie down on the floor.” While the employee was on the floor he heard the man rifling the cash register. When the man was leaving, he said, “You had better lie there about two minutes or I will blow your head off.” After the man had left the store, the employee checked the register and found that approximately $151 had been taken.
The employee testified, in part, as follows: He looked at the man about four or five seconds, from the time the man entered the store until he told the employee to lie on the floor. He (employee) heard the man’s voice while the man was in the store and he has heard his voice since that time. The defendant’s voice is the same as the voice of the man who was in the store. From what he saw of the man’s face, that is, from the middle of his nose up to the top of his hair, he (employee) is positive to that extent that defendant is the man who was in the store. Defendant is approximately the same build and size of that man. He (employee) saw the defendant at the police station about a week after the robbery, and he identified defendant from a group of pictures. Thereafter, on that same day, he saw the defendant in the custody of Officer Crowley, and at the “show-up,” and at the arraignment.
Then counsel for defendant asked Mr. Copeland, on cross-examination: “And that is how you identified him I” He replied, “Yes.” Then that counsel asked: “And you say that this is the man, although you had seen the face of the man that came into your place, only from the bridge of his nose up?” He replied, “Yes.”
Mr. Copeland testified further: When he looked at the pictures, he did not pick out one of them as the picture of defendant. He did not identify defendant from the pictures. He identified defendant and thought that he was the man because he recognized his face. He (witness) was not sure “from the picture” whether this was the man, but after he saw the defendant three times on that day (at the police station) he was sure that defendant was the man who was in the store.
Defendant testified that he did not commit the robbery; he [286]did not know where the liquor store was located; he had never seen Mr. Copeland; he never owned a revolver; he is a roofer and was doing that kind of work on February 24, I960; on said day, around 7 :30 p. m., he was at his home. On cross-examination, he said that about two weeks before February 24 he had been hit on the head while he was in Palm Springs, and he had worn a bandage on his head but he was not wearing it on February 24; on February 23 he was in a doctor’s office regarding the injury, and when he left the office he had a bandage on his head; he had been convicted of armed robbery in 1950.
At the further hearing on August 16, one Gelabert was called as a witness by defendant. He was referred to in the attorney’s affidavit (in re hearing additional witnesses) as a witness who could not be located in time for the trial. He testified that on February 24, 1960, he was at a party at defendant’s home from 6 o’clock in the evening until approximately 2 o’clock the next morning; others who were at the party were the defendant, one McCloud, and defendant’s wife; he (witness) had been living there since February 12; defendant did not leave the premises on February 24; defendant, McCloud, and the witness had been drinking during that day and they kept drinking at night.
McCloud, a witness called by defendant at the further hearing, testified that on February 24, 1960, he was at defendant’s home from 6 o’clock in the evening until approximately 1:30 o’clock the next morning; defendant was there during that time; he took defendant to a doctor’s office on February 23.
Defendant’s wife, who was referred to in the attorney’s affidavit as a witness would testify at the further hearing, was present at the further hearing but she was not called as a witness. The attorney for defendant said that she had told him that she would be an adverse witness.
The matter of identification of the robber was a question of fact for the determination of the trial judge. The evidence was sufficient to justify a finding that defendant committed the robbery.
The judgment is affirmed.
Lillie, J., concurred.