People v. Arguero

MR. JUSTICE Pro Tem. TUTTLE Delivered the Opinion

of

the Court.

This ease was previously before the court and the judgment was reversed. ([Cal. App.] 295 Pac. 861.) The attorney-general petitioned for a rehearing and the petition was granted.

[425]

Defendant was convicted by a jury of the crime of attempt to commit robbery and a new trial was denied and judgment pronounced. Defendant appeals from the order denying his motion for new trial and also from the judgment.

The record shows that defendant used a knife in the attempted commission of the offense. The information charged defendant with an attempt to commit robbery, and the jury brought in a verdict of guilty of attempt to commit robbery as charged.

The sole question raised upon this appeal is whether or not a lawful verdict was rendered. In this connection defendant contends that the verdict is void and of no effect for the reason that it does not find the degree of robbery.

Section 211a of the Penal Code provides: “That all robbery which is perpetrated by torture or by a person being armed with a dangerous or deadly weapon is robbery in the first degree. All other kinds of robbery are of the second degree.” By the provisions of section 213 of the Penal Code, robbery in the first degree is punishable by imprisonment in the state prison for not less than five years, while robbery of the second degree is punishable by imprisonment in the state prison for not less than one year. Section 664 of the Penal Code provides as follows:

“Every person who attempts to commit any crime, but fails or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempts, as follows:

“1. If the offense so attempted is punishable by imprisonment in the state prison for five years, or more, or by imprisonment in a county jail, the person guilty of such attempt is punishable by imprisonment in the state prison, or in a county jail, as the case may be, for a term not exceeding one-half the longest term of imprisonment prescribed upon a conviction of the offense so attempted;