People v. Jones

LILLIE, J. Defendant was charged with robbery in violation of section 211, Penal Code, and with having been armed with a deadly weapon at the time of its commission; he waived a jury and the matter was submitted on the transcript of the preliminary hearing. The trial court found him guilty and that he had been armed with a dangerous and deadly weapon as alleged, and fixed the degree of the crime to be first degree. Defendant’s application for probation was denied and he was sentenced to the state prison; he appeals from the judgment claiming only that the trial court erred in denying probation.

Around 4:30 p. m. defendant entered the back door of a liquor store and demanded “the money” from the clerk ■ to the latter’s answer: “You’re kidding,” defendant unwrapped a double-barreled sawed-off shotgun and pointed it at the desk. The clerk opened the desk and put the money in a bag; defendant then ordered him to the cash register where he told him to give him all of the currency, halves, and quarters. Taking a quart of Vodka from a shelf, defendant backed out of the door and warned him not to “go to the telephone or anything. ’ ’ About 4:30 p. m. Officer Huie received a radio call concerning the robbery. In the vicinity he saw defendant come from between two houses carrying an object wrapped in a newspaper and asked him what was in the package; defendant told him “a bottle of wine.” The officer then instructed him to open the newspaper; as defendant did so he grabbed the handle of the shotgun and stepped back. Told by the officer, who had a gun pointed at his chest, to drop it or he would kill him, defendant laid the gun on the hood of the car and surrendered. After questioning, he admitted the robbery; he said he got the shotgun from a friend. Defendant neither testified nor offered a defense.

Appellant claims the trial judge’s denial of probation, without considering the merits of his application, was based on his erroneous view of section 1203, Penal Code. Thus, we are not here concerned with the merits of the order denying probation—only with whether the lower court based its denial on an erroneous view of the probation law. (People v. Hollis, 176 Cal.App.2d 92 [1 Cal.Rptr. 293].)

[230]The record shows that prior to denying probation, the trial judge not only fully understood and had in mind the effect of section 1203, Penal Code, and was under no misapprehension concerning his discretionary powers thereunder, but considered the merits of defendant’s application in determining him to be ineligible for probation; while he made no express finding that the instant ease did not fall in the class of “unusual cases where the interest of justice demands a departure from the declared policy,” such an implied finding is evident from the judge’s declaration of defendant’s ineligibility and state prison sentence.