In Re Adams

California Court of Appeal May 14, 1958 No. Crim. 3524Published

Before: Kaufman

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Holding. The court held that a criminal defendant's constitutional right to a jury trial was violated when the defendant did not personally express consent to a waiver in open court, rendering the resulting judgment and commitment void.

Issues

Whether a criminal defendant's constitutional right to a jury trial is violated when the defendant's counsel, rather than the defendant personally, waives the jury trial in open court.

Disposition. Writ of habeas corpus granted; petitioner discharged.

Quotations verified verbatim against the opinion

“it is necessary that the defendant personally express in open court, that he consents to a waiver of trial by jury.”

“The record here does not show a waiver of jury trial in the manner required by article I, section 7 of our state Constitution.”

“It is therefore our view that the judgment and commitment are void and that the petitioner is entitled to his immediate release.”

KAUFMAN, P. J.

Petitioner Al Adams, presently held in the county jail of the city and county of San Francisco, seeks a writ of habeas corpus. Petitioner was sentenced for violations of Vehicle Code, sections 502 and 483, and Municipal Police Code, section 152. The public defender was appointed to represent the petitioner. At the trial on November 8, 1957, the public defender, not the petitioner, entered a plea of not guilty, waived a jury trial and submitted the case on the police report. Petitioner alleges that his constitutional right was'violated as he did not personally waive a jury trial, nor could he properly have done so because of his alcoholic condition at the time of the trial. The People do not dispute the allegations of the petitioner, but state only that the petitioner is imprisoned pursuant to a valid judgment.

A violation of a defendant’s constitutional right during the trial is ground for an attack on the judgment by habeas corpus.

(In re Wallace,

24 Cal.2d 933 [152 P.2d 1].)

Article I, section 7 of the state Constitution, provides in part: ‘1 The right of trial by jury shall be secured and remain inviolate, ... 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. ’ ’ As we said recently in

People

Pechar,

130 Cal.App.2d 616 at page 617 [279 P.2d 570], where the identical point was raised on appeal, the above constitutional provision “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. (Citing cases.) 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

Washington,

95 Cal.App.2d

supra,

at p. 455 [213 P.2d 70].)” The Pechar case has recently been followed in

In Re Adams

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KAUFMAN, P. J.

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