Robertson

This is an appeal from conviction and sentence of defendant on a murder first degree charge. Defendant had pled not guilty and not guilty by reason of insanity. Trial was by court after a first trial, by jury, resulting in conviction with finding of sanity had *548 been reversed. The court trial resulted in a conviction and finding of sanity.

It is unnecessary to set forth a statement of facts because the only issues relate to the exclusion of offered physician’s psychiatric reports.

The reports are claimed to be “prior testimony” of an unavailable witness under Evidence Code section 1291, subdivision (a)(2). 1 The reports were admitted by way of a stipulation during the first trial upon a motion under Penal Code section 1368. There is no question but that otherwise inadmissible evidence may become admissible when the parties stipulate thereto. Such stipulation is a waiver of the right to cross-examine the person whose statements are stipulated to as his testimony. (P eople v. McCoy (1953) 115 Cal.App.2d 565, 568 [ 252 P.2d 371 ].)

But as has been previously noted, the stipulation that the record could be considered as the doctor’s testimony was limited “for the…