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District Court of Appeal, Fourth District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Edward McZEAL, Defendant and Appellant.

Cr. 2253.

Decided: November 15, 1965

Howard R. Harris, National City, under appointment by the District Court of Appeal, for defendant and appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and George J. Roth, Deputy Atty. Gen., for plaintiff and respondent.

This appeal stems from notice of appeal in the form of a letter written by the defendant stating, in part: ‘I am writing this letter to appeal the sentence, I received in your court, Thursday the 4th.’

Appellant was charged by complaint filed in the municipal court with six counts of robbery. Counts I through V charged that at the time of the commission of the offenses appellant was armed with a deadly weapon, to wit: an automatic pistol. Appellant, represented by counsel, pleaded guilty to Count I and the remaining counts were dismissed. Appellant was then certified to the superior court for further proceedings. There appellant reiterated his plea of ‘guilty’ and made application for probation. A hearing date for this application was set by the court and the clerk's minutes contain this notation: ‘Will admit or deny being armed at Probation Hearing or Court will determine.’ At the subsequent hearing, after some discussion between the court and counsel concerning the character of the object displayed as a weapon at the time of the robbery, the judge denied probation and after pronouncing judgment and sentence made this statement: ‘The court fixes the degree as first degree, the defendant having in his possession at the time of the offense a dangerous weapon, not a deadly weapon. The record may so show.’

The letter constituting defendant's notice of appeal was written by him personally and in addition to the language giving notice of appeal contains a request that the degree of the crime be reduced to second degree robbery.

In appellant's brief the issues are stated as follows:

‘1. When the matter of the degree of robbery as first or second degree is put in issue, it is necessary for the prosecution to produce probative evidence to establish the degree as first degree.

‘2. Is the use of a ‘metal toy pistol’ the use of a ‘dangerous' weapon as a matter of law?’

As a broad general statement of the proposition appellant's first contention above appears to be correct. This is not to say, however, that it is above and beyond qualification. Obviously, the trial court cannot arbitrarily fix the degree of a crime basing this judicial act on pure guess work or supporting evidence when evidence is required, which is totally lacking in competent probative value. Here however defendant twice entered his plea of guilty, not to a general charge of robbery under Penal Code, section 211, but to a specific charge under that section containing the allegation that he was ‘armed with a deadly weapon, to wit: an automatic pistol.’ Such a plea admits all of the facts necessary to constitute the crime admitted and requires no proof after the plea. (People v. Mendietta, 101 Cal.App.2d 788, 226 P.2d 34.) It constitutes conviction per se. (People v. Gannaro, 216 Cal.App.2d 25, 30 Cal.Rptr. 711; People v. Ayala, 138 Cal.App.2d 243, 291 P.2d 517; Stephens v. Toomey, 51 Cal.2d 864, 338 P.2d 182; People v. Jones, 52 Cal.2d 636, 343 P.2d 577.) Going further, a judgment entered on a plea of guilty is not appealable on the merits; irregularities not going to the jurisdiction or legality of the proceedings will not be reviewed. (Stephens v. Toomey, supra.)

It is true that had there not been a plea to this specific charge or had there been a plea with specific reservation as to the fixing of the degree thereof, it would, without any altering circumstance, be incumbent upon the sentencing court to require evidence of sufficient probative value to support a finding as to degree. It is also true that here the judge and both counsel apparently proceeded under the theory that it rested with the court to make a finding as to the degree of the crime. At one point this colloquy took place between Mr. Harris, defense counsel and the court:

‘MR. HARRIS: * * * Secondly, the Court is required at this time to make a finding as to whether it is first or second degree.

‘THE COURT: Correct.

‘MR. HARRIS: Mr. McZeal has always claimed that he just used a toy pistol, which, of course, does not excuse the crime at all but would fix the degree. There is some evidence that with respect to the first count that this might have been a real weapon. It does not indicate whether it was loaded or unloaded. * * *’

At another point we note this conversation between the court and defense counsel:

‘THE COURT: Is it the defendant's belief that the toy pistol was not metal?

‘MR. HARRIS: It was metal, your Honor.

‘THE COURT: Then the Court's finding is that he was armed with a dangerous weapon, not a deadly weapon, a dangerous weapon.’

This assumption by both the court and counsel that a finding was required does not alter the fact that defendant had already twice entered his plea to the specific offense of robbery while armed with a deadly weapon. Aside from the clerk's notation in the minutes as quoted above and the conversations between the court and counsel the record is silent concerning any reservation attending defendant's plea of guilty or any question as to the degree of the crime. Assuming for the sake of discussion, however, that a finding by the court was in order, we note that no objection was made relative to a paucity of support for the statement made by the court at the hearing that the robbery was of the first degree and that defendant was armed with a dangerous weapon. The statements were made not only without objection by the defendant but the conduct of counsel implied a stipulation that the court might act upon these statements and remarks. (See People v. Selz, 138 Cal.App.2d 205, 291 P.2d 186.) If such a stipulation be taken to imply that regardless of defendant's plea of guilty to Count I the court was to make a finding as to degree, the stipulation also carried the implication that such a finding could be made upon the discussion and admissions made by counsel pursuant to this stipulation. Surely defendant was not thereby prejudiced for having entered his plea of guilty to robbery while armed with a deadly weapon, which under Penal Code, section 211a would constitute robbery in the first degree, such discussion as was held could only result in a finding of a lesser and not a greater offense. This in a sense is what actually happened. While the sentence was for first degree robbery it nevertheless recites that defendant was armed with ‘a dangerous weapon, NOT a deadly weapon.’ (Caps ours.)

In the light of our conclusion it will be unnecessary to discuss the number two issue above urged by defendant.

The judgment is affirmed.



* FINLEY, Justice. FN* Assigned by the Chairman of the Judicial Council.

GERALD BROWN, P. J., and COUGHLIN, J., concur.