People v. Pianezzi

WHITE, J. On May 4, 1939, the Yokohama Specie Bank in Los Angeles was held up and robbed of $7,565. In an amended indictment returned by the grand jury appellant and three other men were accused of the crime. Following a plea of not guilty, appellant waived trial by jury, which waiver was concurred in by his counsel and the district attorney. He was tried separately from his codefendants and by the court found guilty of the crime of robbery as charged in the amended indictment, which the court fixed as robbery of the first degree and further found that at the time of the commission of the offense appellant was armed with a deadly weapon. From the judgment of conviction this appeal is prosecuted.

By his brief, filed in propria persona, appellant concedes that he personally, as well as his counsel and the prosecutor, waived trial by jury, but he contends that a defendant, by reason of the guaranties of the Constitution of the United States, cannot waive his constitutional right to be tried by a jury. In the leading case of Patton v. United States, 281 U. S. 276 [50 Sup. Ct. 253, 74 L. Ed. 854, 70 A. L. R. 263, 279 (note)], the Supreme Court of the United States, in an elaborate opinion reviewing all earlier cases on that subject, some of which are conflicting with the views expressed in the cited case, held that a person charged with a crime may, consistently with the provisions of the Federal Constitution, waive trial by a jury of twelve and consent to a trial by any lesser number or by the court without a jury. The United States Supreme Court concluded that the constitutional provision was meant to confer a right upon the accused which he might forego at his election. In California our Constitution as amended in 1928 (Const., Art I, see. 7) reads in part: “A trial by jury may be waived in all criminal cases, by the consent of both parties, expressed in open court by the defendant and his counsel.” This constitutional provision specifically authorizes a defendant to waive his right to trial by jury. Since the Constitution prior to the aforesaid amendment au[578]thorized the waiver of a jury trial only in misdemeanor cases, it must be assumed the amendment was adopted by the people of this state for the express purpose of extending that right to felony charges.

Appellant next asserts that the evidence is insufficient to support the judgment of conviction, in that proof of his identity as one of the participants in the robbery does not measure up to the standards required by law. This claim is without merit. Appellant was identified positively by four employees of the bank. The robbers were in the bank between ten and fifteen minutes, were unmasked, and as to the opportunity for observation of the participants by the bank employees, the record discloses the following testimony on the part of one of the witnesses who identified appellant: