McGill

The People appeal from an order granting a new trial, following defendant’s conviction of sex acts with a girl under 14 years of age (Pen. Code, §§ 288, 288a). Mentally disordered sex offender proceedings were instituted and terminated; on December 10, 1968, defendant was granted probation.

On January 17, 1969, with new counsel, the parties appeared in court. The court’s minutes state: “It was stipulated between counsel to set aside the order granting probation for the purpose of making a motion for new trial.” The stipulation was recited for the record by the district attorney. The court granted a new trial on the ground the trial had been a farce and a sham because of the incompetence of defendant’s counsel, and on the further ground, on the court’s own motion, defendant did not have a full and complete understanding of his right to a jury of 12 jurors when he agreed in the course of the trial the case might be decided by a jury of 11 jurors.

In appealing the People seek to renege on the stipulation, contending the court did not have jurisdiction to grant the motion for new trial, because it was not made and determined, as required by Penal Code section 1182, before…