People v. Lesterjette

WHITE, J.

In an information containing nine counts of robbery, the appellants herein, Al H. Thompson and John R. Thompson, were jointly charged in each count of the information with the other defendants with the crime of robbery. Following the original entry of pleas of not guilty, appellants thereafter, by consent of the court, withdrew such pleas as to counts 4 and 9 and thereupon entered pleas of guilty. Appellants were permitted to file an application for probation, so that all the facts might be brought to the attention of the court, and by stipulation it was agreed that from the facts contained in the transcript of the preliminary examination, coupled with the facts narrated in the report of the probation officer, the court might fix the degree of the respective crimes. The remaining counts of the information were dismissed. Upon consideration, the trial court found that the robberies to which each of the appellants herein had entered a plea of guilty were of the first degree, and further found that each of the appellants was armed with a deadly weapon at the time of the commission of the offenses to which they and each of them had pleaded guilty. This appeal is from the jugdment entered.

The single point urged on appeal is that the judgment should be modified by striking therefrom the finding of the court that appellants were armed with a deadly weapon at the time of the commission of the offenses. In support of their

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contention appellants assert, and the attorney-general admits, that the information contained no allegation whatsoever that appellants, or any of the other defendants, were armed with deadly weapons, by reason of which, it is argued, the trial court was without authority to make a finding thereon or to include in the judgments any such finding. In this claim appellants must be upheld. Section 969c of the Penal Code provides that whenever a defendant is armed with a deadly weapon “the fact that the defendant was so armed shall be charged in the indictment or information or complaint”. This section further provides that “the nature of the weapon must be set forth . . . ”. It is further provided in said section that where, as in the instant case, “the defendant pleads guilty to the offense charged, the question of whether or not he was armed

as alleged