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People v. De Blasio9/5/1963
DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION ONE
Crim. No. 9088
1963.CA.40522 ; 33 Cal. Rptr. 473; 219 Cal. App. 2d 767
September 5, 1963
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DANIEL DE BLASIO, DEFENDANT AND APPELLANT
APPEAL from an order of the Municipal Court for the Los Angeles Judicial District of Los Angeles County denying motion to vacate judgment of conviction. Thomas L. Griffith, Judge.
Turpit & Thompson and James E. Patterson for Defendant and Appellant.
Roger Arnebergh, City Attorney, William E. Doran and Nowland C. Hong, Deputy City Attorneys, for Plaintiff and Respondent.
Fourt, J. Wood, P. J., and Lillie, J., concurred.
Fourt
The defendant in this case was charged in the Municipal Court for the Los Angeles Judicial District on March 4, 1957, with a violation of section 502 of the
Vehicle Code (drunk driving). The minutes of that court recite that the defendant deposited $263 cash bail on or about March 3, 1957, that on March 5, 1957, defendant was personally in court without an attorney and the cause was continued until March 12, 1957, at which latter time the defendant and his attorney Abbott Bernay were in court and the matter was continued to March 14, 1957, for arraignment and plea. On the latter date the defendant was in court with his attorney Maurice T. Leader and defendant was arraigned and pleaded not guilty. The minutes further recite "Defendant will waive jury trial at time of court trial. Court trial set for April 3, 1957. . . ." (There is nothing in the record to show or to indicate who if anyone made the statement to the effect that the "[defendant] will waive jury trial at time of court trial.") On April 3, 1957, the minutes set forth that "defendant not in court but represented by Maurice T. Leader. People and Counsel stipulate cause may be submitted on arrest report. Defendant adjudged guilty of the offense charged. . . . Defendant, thru counsel, waives time for sentence . . . ." and then followed the order or judgment that defendant pay a fine of $125 plus a penalty assessment and that $132 of the cash bail be applied to the fine.
On January 11, 1963, a motion was made to set aside and vacate the judgment. The motion was denied on January 29, 1963, and an appeal followed. The Appellate Department of the Superior Court heard the matter and on May 16, 1963, rendered an opinion affirming the order denying the motion.
The cause was then certified to this court upon the motion of the Appellate Department of the Superior Court of Los Angeles County to settle two questions (1) did the defendant waive a jury or "at least, authorize his attorney, who did appear at that time, to waive one" and (2) did the delay of about six years bar the proceeding?
It seems to be presently asserted among other things that if the defendant exercises his privilege of absenting himself (which he had a right to do) then he thereby under the circumstances as here present waived a jury trial -- that he by his absence necessarily indicated that he had given his attorney the power to waive a jury trial at the time of trial.
Neither side cited the case of People v. Holmes (1960) 54 Cal. 2d 442 [5 Cal. Rptr. 871, 353 P.2d 583] which we think is dispositive of the matter at hand. In the
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