People v. Robertson

Opinion

STEPHENS, Acting P. J. This is an appeal from conviction and sentence of defendant on a murder first degree charge. Defendant had pled not guilty and not guilty by reason of insanity. Trial was by court after a first trial, by jury, resulting in conviction with finding of sanity had [548]been reversed. The court trial resulted in a conviction and finding of sanity.

It is unnecessary to set forth a statement of facts because the only issues relate to the exclusion of offered physician’s psychiatric reports.

The reports are claimed to be “prior testimony” of an unavailable witness under Evidence Code section 1291, subdivision (a)(2).1 The reports were admitted by way of a stipulation during the first trial upon a motion under Penal Code section 1368. There is no question but that otherwise inadmissible evidence may become admissible when the parties stipulate thereto. Such stipulation is a waiver of the right to cross-examine the person whose statements are stipulated to as his testimony. (People v. McCoy (1953) 115 Cal.App.2d 565, 568 [252 P.2d 371].)

But as has been previously noted, the stipulation that the record could be considered as the doctor’s testimony was limited “for the purpose of the 1368 motion.”2 It was not a waiver of cross-examination in a sanity trial or the guilt trial itself.

[549]Under the particular circumstances of this case, and without determining admissibility of such a record where there is unlimited stipulation, we hold that the contents of the record were not admissible as prior testimony of a nonavailable witness within the meaning of Evidence Code section 1291, subdivision (a)(2).

The judgment is affirmed.

Ashby, J., and Hastings, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied May 12, 1982. Kaus, J., did not participate therein.

The doctor died prior to being called as a witness in the second trial. Evidence Code section 1291, subdivision (a)(2) provides as follows: “(a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: