People v. Stevens

WHITE, J.

In an amended information filed by the district attorney, appellant, William Schuffert, and defendant George M. Stevens were jointly charged with two counts of robbery. Pursuant to the provisions of section 969c of the Penal Code, it was further alleged in the amended information that at the time of the commission of the respective offenses “said defendants were armed with a deadly weapon, to-wit, a pistol”.

Defendant Stevens pleaded guilty to the charge of robbery as contained in count I and admitted that at the time of the commission of said offense he was armed with a deadly weapon. The court found the robbery to be of the first degree and imposed a penitentiary sentence.

Appellant Schuffert likewise pleaded guilty to the robbery charged in count I, which the court found to be robbery of the first degree, but denied that he was armed with a deadly weapon at the time of the commission of the offense. Count II was dismissed as to both defendants. Determination of the issue raised by appellant Schuffert’s denial that he was armed at the time of the perpetration of the robbery was by appropriate waiver of jury submitted to the court, resulting in a finding “that defendant, William Schuffert, was armed with a deadly weapon at the time of the commission of the offense, to-wit, a pistol”. From the judgment committing appellant Schuffert to San Quentin state prison this appeal is prosecuted.

No issue of fact is presented for our consideration, it having been stipulated that appellant, in company with his codefendant Stevens, committed the robbery charged, and that the only weapon used in perpetrating the offense was the single pistol which at all times was in the hands and possession of the defendant Stevens. A gun having been used by one of the principals in the robbery, appellant concedes the correctness of the court’s finding that both actors in the crime were guilty of robbery of the first degree. (Pen. Code,

[668]

secs. 31 and 211a.) The sole question, therefore, presented to us involves an interpretation of certain provisions contained in section 969c of the Penal Code, enacted in 1935, reading as follows:

“Whenever a defendant is armed with a firearm or other weapon under such circumstances as to bring said defendant within the operation of subdivision 2 of section 1168 of the Penal Code relating to ‘Certain Minimum Penalties’ . . . , the fact that the defendant was so armed shall be charged in the indictment or information or complaint. This charge shall be added to and be a part of the count or each of the counts of the indictment or information or complaint which charge the offense at the time of the commission of which or at the time of the arrest for which the defendant was armed wdth a weapon. ... If the defendant pleads not guilty of the offense charged in any count which alleges that the defendant was armed either at the time of his commission of the offense or at the time of his arrest, or both, the question whether or not he was armed as alleged must be tried by the court or jury which tries the issue upon the plea of not guilty. If the defendant pleads guilty of the offense charged the question whether or not he was armed as alleged must be determined by the court before pronouncing judgment. ’ ’