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District Court of Appeal, Second District, Division 1, California.


Cr. 4552.

Decided: January 15, 1951

Richard L. Rykoff, Hollywood, for appellant. Fred N. Howser, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

This is an appeal ‘from the order of the court denying probation and its refusal to consider appellant's application for probation’.

Appellant together with two other defendants were charged with ‘armed robery’. Appellant pleaded guilty to the offense of robbery but denied being armed. Upon the hearing of appellant's application for probation, appellant's attorney, ‘pointed out to the court that the record showed that appellant ‘never had the gun in his possession at any time,’ and that the record showed ‘a passage of the gun as between the other two co-defendants.’ The Court's reply to this was as follows:

“The Court: I don't see, under the law, how the court can make any distinction. The law is very well settled that if one defendant is armed with a deadly weapon at the time of the commission of the offense, under the law they are all regarded as being armed. Here, there is absolutely no evidence to contradict—well, the statement of the defendants themselves is that they went to the home of this man Jimmy and secured the gun, which was a Luger, and then went to the scene of the holdup where they used the gun and committed the robbery. Now, which defendant had the gun is immaterial. They were all three involved and they are all equally guilty.'

‘The Court thereupon refused to consider appellant's application for probation and judgment was rendered imprisoning appellant in the State prison for the term prescribed by law.’

It is contended on appeal that in the light of the 1949 amendment to section 1203 of the Penal Code the position of the court was error. Before 1949 the section read, ‘probation shall not be granted to any defendant who shall have been convicted of robbery * * * and who at the time of the perpetration of said crime * * * was armed with a deadly weapon’. St.1947, p. 2660. In 1949 the word ‘himself’ was added so that the section now reads that ‘* * * probation shall not be granted to any defendant * * * who at the time of the perpetration of said crime or any of them or at the time of his arrest was himself armed with a deadly weapon * * *’. The foregoing quotation is a small portion of a long sentence in section 1203.

It is conceded by appellant that before the amendment of the section ‘It was generally held that if any one of a group of co-defendants was so armed, probation could not be granted to any of the group, regardless of whether such person had personal possession of the weapon, and all were equally guilty of the same offense.’ However, it is argued by appellant that the amendment ‘changed this prohibition against the granting of probation and limited it only to a person who ‘was himself armed with a deadly weapon.’ Thus it was the clear intent of this amendment that a person convicted of the crime of armed robbery may be granted probation providing that he, himself, was not armed with a deadly weapon.

‘The Trial Judge mistakenly assumed that with respect to the issue of probation it was immaterial whether or not appellant actually had possession of the deadly weapon. On the basis of this mistaken assumption, the Trial Judge refused to consider appellant's application for probation.’

Appellant's contention cannot be upheld. Section 13 of the Civil Code provides that ‘Words and phrases are construed according to the context and the approved usage of the language * * *’. The ‘self’ words such as myself, himself, yourself, etc., are words of emphasis only and the use of the word ‘himself’ in the above provision merely means that at least one of the defendants must actually be armed with a deadly weapon. The sentence wherein it appears in section 1203 is long and involved, and is the only use of the word in the Section.

Such language in the light of the decisions cannot be held to convey the meaning and interpretation contended for by appellant.

The order is affirmed.

DORAN, Justice.

WHITE, P. J., and DRAPEAU, J., concur.

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