People v. Conley

California Court of Appeal Sep 17, 1963 No. Crim. 8318Published

Before: Shinn

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Holding. The court held that the failure to formally re-amend an information to include an 'armed' allegation after a defendant withdrew a guilty plea was a harmless irregularity that did not prejudice the defendant's substantial rights. Furthermore, the court found sufficient evidence supported the burglary conviction and that the defendant waived objections to the admission of physical evidence.

Issues

Whether the failure to re-amend the information to include an 'armed' allegation after the withdrawal of a guilty plea constitutes reversible error.
Whether the trial court erred in admitting physical evidence (a crowbar and hammer) without chemical analysis.
Whether the evidence was sufficient to support the conviction for first-degree burglary.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Under these circumstances, we are inclined to treat the failure to make the formal plea as a mere irregularity which in no manner or degree affected or impinged upon defendant’s substantial rights.”

“When the issue whether appellant was armed in preparation of the burglary was fully tried and was determined by the jury under appropriate instructions, the failure to reinstate in the information the allegation that appellant was armed resulted in no prejudice.”

SHINN, P. J.

In a jury trial, defendants Otis Lee Drinkard and Terrell Conley, represented by counsel, were found guilty of burglary in first degree. The jury further found that both defendants were armed at the time of the commission of the offense. Conley had admitted five prior convictions. Probation was denied and defendants were sentenced to the state prison. Conley appealed from the judgment in propria persona. His request for counsel having been denied, Conley filed briefs. Subsequent thereto, counsel was appointed by this court to represent Conley on his appeal. Counsel adopted the briefs filed in propria persona by Conley, adding nothing thereto. The appeal of Drinkard was dismissed for failure to file a brief.

On appeal Conley first assigns error in the court’s finding him guilty of burglary in the first degree while

[298]

armed, although the information had been amended by striking the allegation of “armed” therefrom. The record reveals that appellant pleaded “not guilty” to the original information and denied the prior convictions. Subsequently, he pleaded guilty to burglary of the second degree. Upon motion of the People, the information was amended by striking the allegation of “armed” therefrom. At a later date, but before the introduction of evidence, appellant withdrew his plea of “guilty” and admitted the alleged prior convictions. The People concede that the information was never reamended to include the charge that appellant was “armed” and that he was never rearraigned. However, the record indicates that at the time defendant withdrew his guilty plea to burglary in the second degree his counsel also requested “restoration of the

original

not guilty plea on the Burglary case.” The original plea, of course, was to a charge which included the allegation of “armed.” Under the circumstances we find appropriate the language in

People

Walker,

170 Cal.App.2d 159, 164 [338 P.2d 536] : “...we perceive here no violation of defendant’s substantial or constitutional right or any prejudice to

People v. Conley

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SHINN, P. J.

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