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District Court of Appeal, Third District, California.


Cr. 2154.

Decided: April 06, 1950

Norman W. Tipton, in pro. per. Fred N. Howser, Attorney General, Doris H. Maier, Deputy and Gail A. Strader, Deputy, Attorney General, for respondent.

This is an appeal by defendant from a judgment convicting him of the crime of robbery in the second degree and sentencing him to prison for the term prescribed by law. While the notice of appeal states that the appeal is also from the order denying his motion for a new trial there is nothing in the record indicating that such a motion was either made or denied, therefore it is dismissed.

By information defendant was charged with the crime of robbery. Following his plea of guilty thereto the matter was referred to the probation officer. Because of defendant's numerous prior convictions and his resulting ineligibility for probation said officer recommended that the same be denied. The judgment appealed from was thereupon entered.

The defendant, who appears in pro per, has not filed an opening brief but in response to communications from this court has filed two letters with the court which he requested be considered in lieu thereof in view of his inability to prepare and file a formal brief. From such letters it appears that he makes two contentions: First, that he should not have been convicted, since the money taken from the victim was returned, and second, that imprisonment in the state prison is not justified since only the sum of $3.00 was netted in the robbery, which was returned.

There is no merit to either contention. As to the first, the return of the stolen property does not alter the fact that the crime was committed, People v. James, 20 Cal.App.2d 88, 66 P.2d 461, and as to the second, the power to fix the punishment for any particular crime is lodged solely with the legislature. In re Todd, 44 Cal.App. 496, 186 P. 790.

The judgment is affirmed.

PEEK, Justice.

ADAMS, P. J., and SPARKS, J., pro tem., concur.