People v. Evanson

California Court of Appeal Sep 16, 1968 No. Crim. 6512Published

Before: Christian

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Holding. The court held that the defendant's verbal waiver of a jury trial was valid and that the trial court was not required to personally advise the defendant of the consequences of such a tactical waiver when represented by counsel. Additionally, the court modified the judgment to reflect a conviction for possession rather than sale on count one due to a clerical error.

Issues

Whether the defendant's waiver of the right to a jury trial was valid and explicit.
Whether the trial court must personally advise a defendant of the consequences of a jury trial waiver when the defendant is represented by counsel.
Whether the evidence supported the conviction and the rejection of the entrapment defense.

Disposition. modified and affirmed

Quotations verified verbatim against the opinion

“But here appellant’s response was verbal and explicit: “Yes sir” to the court’s question, “Is that agreeable with you, Mr. Evanson?””

CHRISTIAN, J.

After a non jury trial, defendant appeals from a judgment convicting him of three counts of felony (violation of Health and Safety Code section 11531, sale of marijuana). Consideration of the contentions advanced on appeal does not require a. detailed recital of the facts. We have reviewed the record and find that there was ample evidence that appellant gave two marijuana cigarettes to Officer Julius Beretta on January 30, 1967 (count 1), that appellant actively participated in the sale of three kilograms of marijauna to Officer Beretta on February 3 (count 2), and that on February 8 appellant took part in the sale of another kilogram of marijuana to Officer Beretta (count 3).

The Attorney General justly concedes that on count one the judge actually found appellant guilty of the included

[700]

offense of possession and that the abstract of judgment reflected a clerical error in reciting that under count one there was a conviction of a sale. Possession of marijuana (Health & Saf. Code, § 11530) is an offense included within the charge of sale.

(People

Rosales

(1964) 226 Cal.App.2d 588 [38 Cal.Rptr. 329].) Accordingly it is appropriate to modify the judgment to conform to the court’s actual determination.

The principal issue presented in this appeal is whether there was a valid waiver of defendant’s right to trial by jury. California Constitution, article I, section 7, provides in part that “A trial by jury may be waived in all criminal eases, by the consent of both parties, expressed in open court by the defendant and his counsel, ...” The questioned waiver occurred as follows:

“Mr. Sposeto [defense counsel] : Ready to proceed, Your Honor. The defendant at this time, Your Honor, is going to waive his right to a jury. Stand up, Mr. Evanson, please. I have explained to Mr. Evanson his constitutional rights to a jury trial and explained to him the nature of a criminal case. He understands that and he desires to proceed without the necessity of a jury.

“The Court: Very well. Is that agreeable with you, Mr. Evanson ?

People v. Evanson

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CHRISTIAN, J.

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