People v. Bellon

ANGELLOTTI, C. J.

The defendant appeals from a judgment of death pronounced upon a plea of guilty to an information charging him with murder and the trial court’s, determination that the murder was of the fisrt degree and without extenuating circumstance..

[1]

Under our practice it is essential to proper pronouncement of judgment in the event of a plea of guilty of a crime distinguished or divided into degrees, such as murder or burglary, that the court first determine the degree. (Pen. Code, sec. 1192;

People

v.

Jefferson,

52 Cal. 452.) This the court did in the case at bar, but it is claimed that the determination was made in the entire absence of any evidence, and that in any event the evidence was not of such a nature as to support a conclusion of murder in the first degree.

[2]

While, as has been held, the proceeding to determine the degree of the crime of murder after a plea of guilty is not a trial, there being no issue joined, the statute does require, at least impliedly, a judicial determination based on evidence. (See

People

v.

Chew Lan Ong,

141 Cal. 550, [99 Am. St. Rep. 88, 75 Pac. 186].)

[3]

The appropriate and proper method for a court to pursue in such a case is to receive such competent evidence from the respective parties as is material to the question of degree, and, the evidence having been concluded, to pronounce its determination thereon.

[4]

Passing for the moment the question of the sufficiency of the evidence to sustain a conclusion that there existed the willful, deliberate, and premeditated intent to kill which is essential to first degree murder, we are satisfied there was in this case no such material departure in procedure from the proper method as, under the circumstances appearing, would justify a reversal. The record shows that on October 3,1918, the defendant, who was at all times accompanied by his attorney, entered his plea of guilty and the court announced that it was .now the duty of the court to ascertain the degree. Thereupon the defendant, without having been sworn as a witness, was examined