This maxim of jurisprudence has been applied in a variety of criminal cases, upholding waivers of significant rights. (See, e.g., People v. Johnson (2002) 28 Cal.4th 1050, 1055 [ 123 Cal.Rptr.2d 700, 51 P.3d 913] [waiver of credits for time in custody]; People v. Valdez (1947) 82 Cal.App.2d 744, 749 [ 187 P.2d 74] [confrontation of witnesses]; People v. Manriquez (1922) 188 Cal. 602, 606 [ 206 P. 63] [time of sentencing]; People v. Tugwell (1917) 32 Cal.App. 520, 525 [ 163 P. 508] [public trial].) Last year the Supreme Court confirmed all this, in Simmons v. Ghaderi (2008) 44 Cal.4th 570, 585 [ 80 Cal.Rptr.3d 83, 187 P.3d 934]: "Civil Code section 3513 makes the doctrine of waiver applicable to all rights and privileges that a person is entitled to, including those conferred by statute, unless otherwise prohibited by specific statutory provisions.
Defendants argue, however, that this section, as applied in this case, is unconstitutional. The scope to be accorded the privilege of confrontation as it relates to section 686, subdivision 3, was discussed in the case of People v. Valdez, 82 Cal.App.2d 744, 749-750 [ 187 P.2d 74]. The court stated: ". . . that the constitutional privilege is confined to the guaranty of an opportunity for the cross-examination of the witnesses against the defendant and does not include the observation of the witness's demeanor by the trier of the facts.
Indeed, even before 1974, several California courts recognized that in view of its fundamental nature, a criminal defendant's right to confront witnesses — though not expressly mentioned in the state Constitution — constituted an integral element of the general "due process" guaranteed defendants by former article I, section 13 of the California Constitution. (See, e.g., People v. Dozier (1965) 236 Cal.App.2d 94, 101 [ 45 Cal.Rptr. 770]; People v. Valdez (1947) 82 Cal.App.2d 744, 749-750 [ 187 P.2d 74].) In People v. Plyler, supra, this court observed; "Almost every state constitution in the Union has a provision declaring that a defendant is entitled to be confronted at his trial by the witnesses against him.
(6) We observe, preliminarily, that the use of depositions and former testimony does not infringe upon the constitutional right of confrontation as long as there has been due cross-examination. ( People v. Foster (1967) 67 Cal.2d 604, 606 [ 63 Cal.Rptr. 288, 432 P.2d 976]; People v. Wallin (1950) 34 Cal.2d 777, 781 [ 215 P.2d 1]; People v. Valdez (1947) 82 Cal.App.2d 744, 749-750 [ 187 P.2d 74] [cert. den., 338 U.S. 835 (94 L.Ed. 510, 70 S.Ct. 42)]; 5 Wigmore on Evidence (3d ed.) §§ 1396, 1397, 1398, pp. 127-136.
[2] The right of the accused to confront witnesses at his trial, whether reserved in the Constitution or in statutes, may be waived. ( Diaz v. United States, 223 U.S. 442 [32 S.Ct. 250, 56 L.Ed. 500]; Schick v. United States, 195 U.S. 65 [24 S.Ct. 826, 49 L.Ed. 99]; Kemp v. Government of Canal Zone, 167 F.2d 938; People v. Bird, 132 Cal. 261 [ 64 P. 259]; People v. Valdez, 82 Cal.App.2d 744 [ 187 P.2d 74]; People v. Noorlander, 76 Cal.App.2d 274 [ 172 P.2d 766].) [3] The defendant has not been deprived of his rights under the United States Constitution where, as here, his attorney cross-examined the prosecution's witnesses at the preliminary hearing, in the defendant's presence, and thereafter the defendant waived his right of confrontation during trial by stipulating that the People's case be submitted upon the transcript of the preliminary hearing.
Counsel made a tactical choice which appears amply justified by the record, and appellant, who personally agreed to the procedure, is in no position to complain. (See People v. Valdez (1947) 82 Cal.App.2d 744, 751 [ 187 P.2d 74]; Bunnell v. Superior Court, supra; People v. Pope (1979) 23 Cal.3d 412, 426 [ 152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) SUFFICIENCY OF EVIDENCE AGAINST EDWARD
]" (See also People v. Donnelly, 95 Cal.App.2d 595, 597-598 [ 213 P.2d 502]; People v. Ethridge, 204 Cal.App.2d 279, 284 [ 22 Cal.Rptr. 57]; People v. Sola, 200 Cal.App.2d 593, 595 [ 19 Cal.Rptr. 327]; People v. Smyer, 177 Cal.App.2d 477, 478 [ 2 Cal.Rptr. 215]; People v. Davis, 157 Cal.App.2d 33, 34 [ 320 P.2d 88]; People v. Heath, 131 Cal.App.2d 172, 174 [ 280 P.2d 70]; People v. Anderson, 126 Cal.App.2d 702, 705 [ 272 P.2d 805]; People v. Hart, 121 Cal.App.2d 301, 302 [ 262 P.2d 865].) In People v. Valdez, 82 Cal.App.2d 744, at page 749 [ 187 P.2d 74], the court pointed out that the right of confrontation in its indispensable aspect was merely an application of the common-law rule against hearsay, and the constitutional right "is confined to the guaranty of an opportunity for the cross-examination of the witnesses against the defendant. . . .
For present purposes we may assume, without deciding, two propositions of law tending to support defendant's position: first, that section 10577, permitting evidentiary use of death certificates as prima facie proof of fact, is designed only to create an exception to the general prohibition against hearsay methods of proof; second, that the statute does not, at least in criminal cases, permit prima facie proof of conclusionary statements drawn from an autopsy or investigation, thus depriving the defendant of an opportunity to confront and cross-examine the witnesses against him. (See Pen. Code, § 686, subd. 3; Snyder v. Massachusetts, 291 U.S. 97, 106 [54 S.Ct. 330, 78 L.Ed. 674, 90 A.L.R. 575]; People v. Valdez, 82 Cal.App.2d 744, 750 [ 187 P.2d 74]; 14 Cal.Jur.2d, Criminal Law, § 139; 5 Wigmore on Evidence (3d ed.) §§ 1395-1397.) On these assumptions, the present death certificate would be admissible proof only of bald factual entries, for example, the fact of death, time and place of death, character of the injuries and time and place of the accident or other trauma-producing event.
Because of their interrelation, the first four of the contentions above stated will be considered collectively; basically they assert that appellant upon the trial was unconstitutionally deprived of the right to confront his accusers face to face and cross-examine them, and that due process of law was thereby denied him (Cal. Const., art. I, § 13). [1] The privilege of confrontation by witnesses is "guaranteed by subsection 3 of section 686 of our Penal Code subject to the limitations there stated." ( People v. Valdez, 82 Cal.App.2d 744, 749 [ 187 P.2d 74].) Said subsection provides that a defendant is entitled "to produce witnesses on his behalf and to be confronted with the witnesses against him, in the presence of the court, except that . . . the testimony on behalf of the people or the defendant of a witness deceased, insane, out of jurisdiction, or who cannot with due diligence be found within the state, given on a former trial of the action in the presence of the defendant, who has, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness, may be admitted" (emphasis added).
[5] The improper denial of the right of cross-examination is a denial of due process. ( Olive Proration etc. Committee v. Agricultural etc. Committee, 17 Cal.2d 204, 210 [ 109 P.2d 918]; People v. Valdez, 82 Cal.App.2d 744, 749 [ 187 P.2d 74]; Langendorf etc. Bakeries v. Industrial Acc. Com., 87 Cal.App.2d 103, 104 [ 195 P.2d 887]; Columbia etc. Steel Div. v. Industrial Acc. Com., 115 Cal.App.2d 862, 865 [ 253 P.2d 45]; In re Shackelford, 116 Cal.App.2d 864, 867 [ 254 P.2d 610]; Argonaut Ins. Exch. v. Industrial Acc. Com., 120 Cal.App.2d 145, 146-154 [ 260 P.2d 817].) Where the subject of cross-examination concerns the matter at issue, the refusal to permit it results in a denial of a fair hearing. Prejudice must be presumed.