People v. Sutton

FOURT, J. In an information filed in Los Angeles on March 16, 1967, Hiruko was charged in count I thereof with burglarizing a George’s Music Supply store on December 29, 1966, in count II Hiruko and Sutton were charged with burglarizing Penny Owsley Music Company on January 19, 1967, in count III Sutton was charged with burglarizing the Herweg and Sutter Company establishment on January 30, [555196]7, in count IV Hiruko was charged with burglary committed on February 12, 1967, in count V Hiruko, Mullin and Sutton were charged with a burglary of a motel on February 14, 1967, in count VI Hiruko, Mullin and Sutton weré charged with kidnaping for the purpose of robbery on February 14, 1967, and in count VII Hiruko, Mullin and Sutton were charged with robbing Charavis Haagen and Paul Kurtzman of certain personal property on February 14, 1967. On April 26, 1967, the defendants were in court represented by counsel and without objection and upon motion of the prosecutor count VI as charged in the information was dismissed or stricken and count VII as originally filed was renumbered and became count VI. Bach of the defendants withdrew his previous not guilty plea as to count VI, was rearraigned and pleaded guilty to the charge as contained in count VI. Further proceedings as to the change in count VI, the determination of the degree and the disposition of the remaining counts was continued to May 24, 1967. It was apparently stipulated that the degree could be fixed by the judge on the probation report. A probation report was ordered. On May 24, 19'67, each defendant was found to be guilty of robbery in the first degree and sentenced to the state prison. The remaining counts were dismissed.

The defendants in a joint notice of appeal, timely filed on May 27, 1967, appeal from the judgment “on the limited question of fixing of degree by the Court. ...” Mullin in a separate notice of appeal filed June 2, 1967, stated that he “appeals from the judgment and sentence imposed ... on May 24,1967.”

Appellants sole contention is that the court erred in determining that the crime was robbery in the first degree in view of the fact that there is no allegation in the information to the effect that appellants were armed at the time of the commission of the offense.

A defendant may be convicted of first degree robbery where there is no allegation in the information that defendant was armed. (See People v. Washington, 243 Cal.App.2d 681, 687 [52 Cal.Rptr. 668].) “The distinction to be drawn here is that although a first degree robbery conviction may be sustained where the information does not allege the use of a deadly weapon, Penal Code section 969c requires that before the additional penalties of Penal Code sections 3024 and 12022 may be imposed by the above indicated ‘armed clause,’ there must be both a prior allegation of the Tise or possession of a