People v. Ware

FILES, P. J.

This is a second appeal arising out of defendant’s conviction of two counts of first degree robbery committed September 14, 1963, in violation of Penal Code section 211. Before sentencing defendant to state prison on January 29,1964, the trial judge stated that he was “prohibited by the code” from granting probation. On defendant’s appeal the District Court of Appeal for the Second Appellate District, Division Two, in an unpublished opinion, pointed out that the trial court had failed to make any finding that defendant had used or attempted to use a gun upon a human being, or any express finding that this was not an unusual case where the interest of justice demands a departure from the declared policy of the Legislature. The judgment was reversed and the case remanded to the trial court with directions to rearraign appellant for judgment, to hear and determine appellant’s application for probation, “and thereafter to proceed in the premises as required by law.”

(People

v.

Ware,

2 Crim 9828, decided Jan. 26, 1965.)

On April 22, 1965, defendant was brought back before the same judge who had sentenced him previously. The judge stated that he had read and considered the probation report which had been filed prior to the first judgment, and he had read the opinion of the appellate court.

Being thoroughly familiar with the facts of the case, since he had presided at the trial, the court then declared that he found that the defendant had used and attempted to use a gun

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upon a human being in the perpetration of the crime in question, and that this is not an unusual case where the interest of justice demands a departure from the general policy.

The court then adjudged that defendant be imprisoned in the state prison for the term prescribed by law on each count, the sentences to run concurrently with each other.

The record of the trial amply supports these findings. This was the simplest ease of armed robbery. There was evidence that defendant, carrying a sawed-off shotgun, and three armed companions entered a bowling alley and ordered the persons present to lie on the floor. The sum of $4.00 was taken from the pocket of one man and about $1,300 from the owner of the business. Defendant said to another man “Give me your wallet,” and when that man refused, defendant pointed his gun and responded, “Well, I can blow your brains out.” No shots were fired. One victim was struck in the back of the head by a gun, causing a headache but no laceration.