People v. Doran

California Court of Appeal Jan 8, 1974 No. Crim. 20155Published

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Holding. The court held that the defendant's robbery conviction must be reduced to the second degree pursuant to Penal Code section 1157, and that Penal Code section 12022 is inapplicable to the sentence.

Issues

Whether the rule in People v. Beamon regarding Penal Code section 1157 should be applied retroactively.
Whether Penal Code section 12022 is applicable to a conviction reduced to second-degree robbery under these circumstances.

Disposition. Modified and affirmed

Quotations verified verbatim against the opinion

“Section 1157 of the Penal Code provides that the failure of a jury to find the degree of the offense causes the offense to be “deemed to be of the lesser degree.””

Opinion

THE COURT.

In the light of

People

Beamon

(1973) 8 Cal.3d 625 [105 Cal.Rptr. 681, 504 P.2d 905], it is clear that this court misconstrued section 1157 of the Penal Code when we treated defendant’s conviction for robbery as being in the first degree

(People

Doran

(1972) 24 Cal.App.3d 316, 321-322 [100 Cal.Rptr. 886]). Applying the tests set forth by the Supreme Court in

People

Beagle

(1972) 6 Cal.3d 441, 454, fn. 2 [99 Cal.Rptr. 313, 492 P.2d 1], we conclude that the

Beamon

rule should be retroactively applied. In

People

Cox

(1973) 33 Cal.App.3d 378 [109 Cal.Rptr. 43], we assumed, without discussion, that

Beamon

was

[593]

retroactive. Accordingly, defendant is entitled to relief (see

People

Mutch

(1971) 4 Cal.3d 389, 396-399 [93 Cal.Rptr. 721, 482 P.2d 633]).

The result, in this case, as in

Cox,

is that Doran should be regarded as convicted of robbery in the second degree, with sections 1203 and 3024 of the Penal Code applicable, but with section 12022 of that code inapplicable.

People v. Doran

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THE COURT.

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