Opinion
Rehearing Denied Feb. 25, 1960.
Hearing Granted March 30, 1960.
Opinion vacated 5 Cal.Rptr. 871.
Lionel Richman, Los Angeles, for appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Ernest E. Sanchez, Deputy Atty. Gen., for respondent.
PER CURIAM.
By information Nathan Boyd Holmes was charged with violation of section 11500, Health and Safety Code in that he did sell, furnish and give away heroin. It was alleged that he had suffered a prior conviction of violation of section 11500. In a nonjury trial he was convicted; his motion for new trial was denied as was his application for probation, and he appeals from the judgment and the order denying motion for new trial.
October 20, 1958, defendant pleaded not guilty; November 18th, he denied the prior conviction; December 10th, the cause was tried. Under date of December 10th the clerk's transcript reads in part: 'The defendant personally and all counsel waive jury trial on all matters.' There were other proceedings on December 10th. At 9 a. m., the following took place:
'The Court: People versus Nathan Boyd Holmes.
'Mr. McCormick: Defendant is ready, your Honor.
'Mr. Aisenson: People are ready, your Honor. We have the arresting officer here.
'The Court: Is this to be a jury trial?
'Mr. McCormick: No, I believe it will be a court trial.
'The Court: All right, take the waiver.
'Mr. Aisenson: Nathan Boyd Holmes, is that your true and correct name?
'The Defendant: Yes.
'Mr. Aisenson: Mr. Holmes, do you understand you have been charged in indictment 250814 with the crime of selling heroin, do you understand that?
'The Defendant: Yes.
'Mr. Aisenson: And do you further understand that you have a right to a 'The Defendant: Yes.
'Mr. Aisenson: And do you also known that it is stated in the same information that you have been previously convicted of a felony pertaining to narcotics; do you understand that?
'The Defendant: Yes.
'Mr. Aisenson: Do you understand that you have a right to trial by jury to determine whether or not that is true or not?
'The Defendant: Yes.
'Mr. Aisenson: Counsel joins in the waiver?
'Mr. McCormick: I join in the waiver.
'Mr. Aisenson: People join in the waiver.
'The Court: All right, are you ready to proceed in this case?
'Mr. Aisenson: Yes, your Honor. May I call the chemist? He should be in by ten.'
At 9:14, the trial commenced and proceeded to conclusion. We were furnished a reporter's transcript which omitted a transcript of the above quoted proceedings had at 9 a. m. Inasmuch as the reporter's transcript and the clerk's transcript were in conflict the same were returned to the superior court with directions that they be brought into conformity by the correction of one or the other. The proceedings had at 9 a. m. are shown by the corrected reporter's transcript, certified by the judge. There has been no showing that the clerk's minutes have been corrected. We accept the corrected reporter's transcript as authentic. The recital in the clerk's minutes to the effect that defendant waived trial by jury is obviously in error.
Trial by jury cannot be waived without the consent of the accused announced or declared in person; waiver by his counsel is not sufficient even though stated in the presence of the defendant and without objection by him. Cal.Const. art. I, sec. 7; People v. Garcia, 98 Cal.App. 702, 277 P. 747; People v. Wilkerson, 99 Cal.App. 123, 278 P. 466; People v. Wyatt, 101 Cal.App. 396, 281 P. 629; People v. Washington, 95 Cal.App.2d 454, 213 P.2d 70.
It appears from the reporter's transcript that there was no waiver of jury trial by defendant. The clerk's minutes to the contrary should be corrected.
The judgment and order appealed from are reversed.