People v. Prezas

ASHBURN, J.—

Defendant Marie Reyez appeals from judgment of conviction of possession of narcotics (Health & Saf. Code, § 11500). She and Ruben Cruz Prezas were jointly charged in the information and were tried together, Reyez being convicted and Prezas acquitted.

Appellant’s counsel argues fatal error in that

“

[t]here was no waiver of a jury trial by the appellant Reyes and no stipulation entered into between the parties that the case in chief be submitted on the preliminary transcript.” Relying upon the rule that waiver of jury trial must be expressed in words by defendant as well as his attorney, and cannot be implied from a defendant’s conduct

(People

v.

Holmes,

54 Cal.2d 442 [5 Cal.Rptr. 871, 353 P.2d 583], counsel points to the reporter’s transcript which makes no mention of the subject.

The clerk’s transcript shows that the cause was set for trial on August 10, 1960, in department 104 of the superior court. On that day the minutes state that said defendant and her counsel, James S. Fitzpatrick, were present when the cause was called for trial and

“

[t]he defendant(s) personally and all counsel waive jury trial. By stipulation of all counsel the cause is submitted on the testimony contained in the transcript of the proceedings had at the preliminary hearing, subject to this Court’s rulings, with each side reserving the right to offer additional evidence, and all stipulations entered into at the preliminary hearing be deemed entered into in these pro

[852]

ceedings.” People’s Exhibit 1 was introduced for identification and due to congested calendar the case was transferred to department 100 “forthwith for further proceedings.” On the same day the minutes of department 100 record the presence of appellant and her attorney and repeat the language just quoted from the minutes of department 104, adding thereto: “It is further stipulated that all exhibits received at the preliminary hearing are received in evidence in these proceedings, subject to this Court’s rulings.” These minutes were prepared upon a printed form in each instance and the matter above quoted concerning waiver of jury is in the printed part of the form, not typewritten or handwritten.