People v. Stewart

Opinion

WRIGHT, J.

Appellant, Ralph Eugene Stewart, and Edward Arthur Timmons were charged by information with two counts of kidnaping for the purpose of robbery (violations of Pen. Code, § 209) and with two

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counts of robbery (violations of Pen. Code, § 211). Each count alleged that both appellant and Timmons were armed with a deadly weapon, to wit, a knife, at the time of the commission of each offense. Pleas of not guilty were entered by both of the accused as to all counts.

On the day set for trial appellant withdrew his plea of not guilty to one charge of robbery and entered a plea of guilty. Thereafter appellant personálly and all counsel waived right to jury trial on the armed allegation and the fixing of the degree of the robbery. A probation officer’s report was ordered and it was agreed that the cause be continued to a later date for probation hearing and sentencing, for determination of the armed allegation, for fixing of degree of the robbery and for disposition of the remaining three counts. On the date of the later hearing the trial judge found the armed allegation to be not true, fixed the degree of the offense as in the second degree, denied probation and sentenced the appellant to the state prison for the term prescribed by law. On motion of the People the three remaining counts were dismissed by the court in the interest of justice. Appellant appeals on the limited question of error claimed to have been committed by the trial court by imposing judgment and sentence on a plea of guilty after a grant of immunity pursuant to the provisions of Penal Code section 1324

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made subsequent to such plea.

Statement of Facts

As the issue before this court is not only a narrow but a unique one, it is unnecessary to set forth the facts surrounding the crimes of which appellant and the codefendant were convicted. Such a statement is not only unnecessary but impossible as the record on appeal does not include that portion of the proceedings. What does appear from the record is that after appellant entered a plea of guilty to one count of robbery, further proceedings were continued to a future date. Included in the matters to be disposed of later were the two counts of kidnaping and the remaining count of robbery filed against appellant. After receipt of the guilty plea from appellant the trial judge proceeded with the trial of the codefendant, Timmons. Appellant was