People v. Benjamin , 140 Cal. App. 2d 703 ( 1956 )

PETERS, P. J.

The defendant, after a trial before the court without a jury, was convicted of a felony. He appeals, contending that the record shows that at no time did he personally waive a jury trial. There is no need to summarize the record in detail because both appellant and respondent agree upon what occurred. Suffice it to say that the case, with appellant’s consent, was continued many times. At one of these hearings the appellant personally waived his right to go to trial within 60 days. Thereafter, with consent, several other continuances were granted. When the case finally came on for trial apparently everyone involved assumed, contrary to the fact, that there had been a waiver of a jury trial. At most, the record shows an ambiguous waiver by appellant’s counsel, but it fails to show a waiver by appellant, personally. Such personal waiver is essential. Article I, section 7, of the state Constitution provides, in part, that:

“. . . 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.”

The eases decided under this section hold that the constitutional mandate requires an express waiver by the defendant personally and by his counsel, and that the section prohibits any implied waiver being found by the courts. (People v. Garcia, 98 Cal.App. 702 [277 P. 747]; People v. Spinato, 100 Cal.App. 600 [280 P. 691]; People v. Barba, 100 Cal.App. 557 [280 P. 549]; People v. Woods, 126 Cal.App. 158 [14 P.2d 313]; 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]; People v. Pechar, 130 Cal.App.2d 616 [279 P.2d 570].)

There are no cases to the contrary.

The judgment is reversed and the cause remanded for a new trial.

Wood (Fred B.), J., concurred.