People v. Sheeley

KAUFMAN, P. J.

On January 24, 1949, the appellant was convicted of armed robbery in the first degree. (Case No. 42238.) On January 28, 1949, the court rendered its judgment, sentencing appellant to San Quentin, and then suspending the sentence on condition that he serve one year in the county jail. In April 1953, appellant was convicted of violating Penal Code, section 476a, sentenced to San Quentin, and again sentence was suspended on condition that he serve one year in the county jail. (Case No. 48268.) On March 13, 1956, the court was informed by the probation officer that the appellant had again been sentenced to San Quentin on another forgery charge, Number 27015. On March 13, 1956, the court revoked probation in Number 42238 and in Number 48268, and sentenced appellant to the state prison. Thereafter, on July 11, 1956, after being informed by the district attorney that the orders of March 1956, were invalid, the court set aside the orders of March 13, 1956, revoking probation on Numbers 42238 and 48268 and sentenced appellant on Number 42238 to the state prison for a term to run concurrently with any other sentence being served; and on Number 48268 to one year in the county jail with credit

[580]

for time already served. Defendant appeals from the order of July 11, 1956. His appeal is taken only in Number 42238, the robbery case. Neither he nor the People appeal from any order entered in Number 48268.

Appellant, appearing in propria persona, contends that he was illegally sentenced on Number 42238 as the jail sentence indicates he was convicted of only second degree robbery, that under Penal Code, section 1203.2, the court lacked jurisdiction to revoke the 1949 order as judgment had been pronounced and suspended and he had served the year in the county jail; that he was not properly arraigned before judgment and that he was denied a fair hearing and aid of counsel on July 11, 1956.

The order of January 28, 1949, is an informal grant of probation as a court has no power to suspend a sentence except as an incident to granting probation.

(Oster

v.

Municipal Court,

45 Cal.2d 134, 139 [287 P.2d 755].) The record indicates that on January 24, 1949, the jury found appellant guilty of armed robbery in the first degree. Penal Code, section 1203, provides: “Probation shall not be granted to any defendant who shall have been convicted of robbery . . . and who at the time of the perpetration of said crime . . . or at the time of his arrest was himself armed with a deadly weapon. ...” The finding of the jury is only for the purpose of determining the degree of the offense as set forth in Penal Code, section 211a, which does not distinguish between “dangerous” and “deadly” weapons, and is not binding on the court for the purpose of determining eligibility for probation under Penal Code, section 1203, as the prohibition of that section applies only to “deadly” weapons.