People v. Stroff

California Court of Appeal Oct 24, 1933 No. Docket No. 1287.Published

Before: Plummer

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Holding. The court held that a trial court's failure to determine the degree of a crime within five days of a guilty plea is a procedural error that does not mandate a new trial under the state constitution, and that a defendant is considered 'armed' for purposes of first-degree burglary if they are equipped with a deadly weapon available for use, even if not held in hand.

Issues

Whether a trial court's failure to determine the degree of an offense within five days of a guilty plea entitles a defendant to a new trial.
Whether a defendant is 'armed' with a deadly weapon for first-degree burglary if the weapon is in their possession but not held in their hand during the commission of the crime.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The fact that they had them in their possession available for immediate use is sufficient to bring the case within the statute.”

“To hold, under the circumstances disclosed in this case, that the appellant was unarmed would be to give precedence to a mere shadow rather than to substance.”

[671]

PLUMMER,, J.

On September 4, 1928, the defendant

pleaded guilty to the crime of burglary, with which he was regularly charged and sentenced to imprisonment in the state prison at San Quentin. The record shows that at the time of passing sentence the court failed to designate whether the offense to which the defendant had pleaded guilty was burglary in the first or second degree. Thereafter, and in May, 1933, after hearing upon the appellant’s petition for a writ of

habeas corpus,

this court remanded the appellant to the trial court in order that the degree of the offense to which the appellant had pleaded guilty should be ascertained and determined.

(In re Stroff,

132 Cal. App. 351 [22 Pac. (2d) 770].)

In pursuance of the order and direction of this court, the trial court of Humboldt County having brought the appellant before it, proceeded to take testimony to determine the degree of the offense to which the defendant had pleaded guilty, and thereupon found such offense to be burglary in the first degree. Prom this action of the trial court the defendant appeals.

Two grounds are relied upon for reversal—1st: That the trial court had no jurisdiction to proceed to determine the degree of the offense to which the defendant had pleaded guilty, by reason of the fact that a judgment determining the degree of the offense was not pronounced within five days after the defendant had entered his plea of guilty; 2d: That the defendant was not armed at the time of the commission of the offense, and therefore was guilty only of burglary in the second degree.

The record shows a burglary during the night-time, of a certain store building in the county of Humboldt, and that the defendant owned a certain pistol or revolver which was found lying on the platform just outside of one of the doors leading into the store building. Whether that pistol was left on the platform before or after the entrance is not shown by the testimony.

In support of his first contention the appellant refers to a number of cases holding that where the court has failed to pronounce judgment within five days after a plea or verdict of guilty, a new trial must be granted to the defendant as a matter of right. These cases, however, by

People v. Stroff

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PLUMMER,, J.

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