People v. Johnson

California Court of Appeal Apr 9, 1956 No. Crim. 5506Published

Before: White

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Holding. The trial court erred by summarily denying the defendant's right to file for probation without determining whether the defendant 'used' a deadly weapon in the commission of manslaughter. The court must consider the application for probation and resolve the factual question of whether the weapon was used or merely held without due caution.

Issues

Did the trial court err in concluding the defendant was ineligible for probation without considering the application?
Does the use of a knife in a manslaughter case automatically render a defendant ineligible for probation under Penal Code section 1203?

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“it was error for the trial court to refuse to permit the filing of or to consider an application for probation at all.”

“A knife is not inherently a dangerous or deadly weapon as a matter of law though it may assume such characteristics, depending upon the manner in which it is used”

WHITE, P. J.

In an information filed by the district attorney of Los Angeles County, defendant was accused of the crime of murder. It was further alleged that he had previously been convicted in the District Court of Grady County, Oklahoma, of the crime of assault with intent to kill, a felony, for which he served a term of imprisonment in the state prison.

Defendant entered a plea of not guilty and denied the prior conviction. Thereafter, and with his counsel present, defendant withdrew his plea of not guilty and entered his plea of guilty to the crime of manslaughter, a felony and a lesser and necessarily included offense. He also thereupon admitted the prior conviction. Defendant was sentenced to state prison and judgment entered accordingly. From such judgment he prosecutes this appeal.

The record reveals that at the time defendant withdrew his not guilty plea and entered his plea of guilty to the lesser offense of manslaughter, the following proceedings occurred:

“The Court: Thomas C. Johnson.

“Mb. Grail [Deputy District Attorney] : In this case, if the Court please, the defendant has indicated his willingness to enter a plea of guilty to manslaughter, a lesser and necessarily included offense.

“The Court: I notice you are the attorney of record in this matter, Mr. Werner. Have you advised the defendant of his responsibility, his rights and liabilities, and so forth ?

“Mr. Werner: I have, your Honor. I also want to state I did so several weeks ago, and the defendant here seemed to be a little disturbed about my recommendation and at

[615]

tempted to employ other counsel. Realizing my obligation to the Court, I have returned here, but I do recommend that he change his plea and admit the prior. Is that correct?

“Mr. Grail : Yes.

“The Court: Now, Mr. Johnson, do you want to plead guilty to the crime of manslaughter?

“The Dependant: Yes, your Honor.

‘ ‘ The Court : I beg your pardon ?

People v. Johnson

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WHITE, P. J.

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