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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph KING, Jr., Defendant and Appellant.

Cr. 13894.

Decided: February 27, 1969

Donald W. Pike, Beverly Hills, under appointment by Court of Appeal, for defendant and appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen, and Mark L. Christiansen, Deputy, Atty. Gen., for plaintiff and respondent.

For Opinion on Hearing, see 80 Cal.Rptr. 26, 457 P.2d 866.

On December 3, 1968, we filed our opinion, certified for nonpublication, affirming the judgment which convicted appellant of robbery of the first degree.   On January 29, 1969, the Supreme Court granted appellant's petition for hearing and retransferred the matter to this court with directions to so modify the judgment as to make it clear that the trial court's finding that appellant was armed at the time of the commission of the substantive offense should not be construed as a determination that he was so armed within the meaning of Penal Code, section 12022.   It was ordered that in all other respects the judgment would be affirmed.   Accordingly, we are ordering that our former opinion as hereby modified by refiled.

It is evident that the purpose of the recent orders of the Supreme Court in this and other similar cases directing modification of the judgments therein is to eliminate from such judgments any uncertainty or ambiguity with respect to the operation of the finding recited in each of such judgments that the defendant was armed at the time of the commission of the crime.

 The Adult Authority, prison authorities and others concerned with the interpretation and effectuation of such judgments should not be required to look beyond the face of a judgment in order to ascertain whether a finding therein stating that the defendant was armed requires application of Penal Code, section 3024 or section 12022 or both.   Although the writ of habeas corpus is available to correct an erroneous application of section 12022 (In re Shull, 23 Cal.2d 745, 749, 146 P.2d 417), the unnecessary creation of a need for resort to this extraordinary remedy should be avoided.   Even those prisoners sufficiently informed or advised to be aware of their rights and remedies in such cases should not be so burdened.

Recognition of the desirability of such clarity and precision is indicated by the following from People v. Crittenden, 14 Cal.App.2d 589, 591, 58 P.2d 680, 681:

“In 1935 the Legislature enacted certain new provisions and certain amendments to the end that the records in penal offenses should contain more on the face thereof denoting with precision the exact nature of the offense, and that the state board of prison directors might be fully informed as to the facts.   St.1935, c. 603, p. 1700.   Section 969c is a new section that was added.”   (Emphasis added.)

 The achievement of the required degree of clarity demands that every judgment of the nature here under consideration, containing a finding to the effect that the defendant was armed at the time of the commission of the substantive offense, should expressly indicate which of the potentially relevant sections, i.e., 3024 or 12022, is made applicable by such finding under the circumstances of the particular case.

With the foregoing principles in mind, we have reexamined the record in the instant case.   We find that the count of the consolidated information charging the offense of which appellant was convicted alleges that appellant and his codefendant had committed the crime of robbery, and further “That at the time of the commission of the above offense, said defendants were armed with a deadly weapon, to wit, .38 caliber revolver.”

Although this allegation is in the form generally utilized locally, it does not literally comply with Penal Code, section 969c which provides, in pertinent part:  “Whenever a defendant is armed with a firearm or other weapon under such circumstances as to bring said defendant within the operation of Section 3024 of the Penal Code relating to certain minimum penalties or of Section 12022 of the Penal Code, the fact that the defendant was so armed may be charged in the accusatory pleading.”  (Emphasis added.)   That is to say, the instant charge does not indicate whether it is alleged that appellant was armed “under such circumstances” as to bring him within section 3024 or section 12022 or within both sections 3024 and 12022.

Similarly, the judgment entered herein recites only that “the said defendant having been duly found guilty in this court of the crime of ROBBERY (Sec 211 PC), a felony, as charged in count 1 of the information, which the Court found to be Robbery of the first degree and that defendant was armed as alleged * * *.”   The evidence clearly supports these findings in that it establishes that both appellant and his codefendant were guilty of robbery in the first degree but that only the appellant was personally armed at the time of the commission of the offense.

 Since appellant's use of a deadly weapon was a necessary factor in establishing the substantive crime of which he was convicted as robbery of the first degree, it is clear that he was not armed under such circumstances as to bring him within the operation of Penal Code, section 12022 authorizing the Adult Authority to impose an additional, consecutive sentence.  (In re Shull, supra, 23 Cal.2d 745, 749, 146 P.2d 417;  People v. Pheaster, 215 Cal.App.2d 754, 757, 30 Cal.Rptr. 363;  In re O'Donnell for and on behalf of Rodgers, 121 Cal.App. 370, 371–372, 9 P.2d 223.)   Therefore, the judgment must be modified to indicate that section 12022 is inapplicable.

We recognize that in the instant case the applicability of Penal Code, section 3024 will not directly determine the minimum sentence the Adult Authority may properly impose upon appellant since the five-year minimum term prescribed by Penal Code, section 213 for first degree robbery is greater than the four-year minimum sentence established by subdivision (b) of section 3024.   Nevertheless, the indicated finding does judicially establish one fact, which, only with all other relevant considerations, the Adult Authority may consider when, in applying California's indeterminate sentence law, it fixes the specific sentences to be served by appellant and his codefendant herein.

In addition, the finding that appellant was personally armed with a deadly weapon at the time of the commission of the present offense will affect probation and sentence proceedings in the event that appellant, in the future, should suffer another criminal conviction.  (Pen.Code, § 1203; 1  People v. Tarpley, 267 A.C.A. 959, 966, 73 Cal.Rptr. 643.)

Accordingly, the judgment is modified by striking therefrom the finding “that defendant was armed as alleged” and substituting therefor the following:  “that defendant was personally armed with a deadly weapon, to-wit, a .38 caliber revolver, at the time of the commission of the instant offense but not under such circumstances as to bring him within the operation of section 12022 of the Penal Code.”   In all other respects the judgment is affirmed.


1.   Section 1203 of the Penal Code, in pertinent part, provides:“The Legislature hereby expresses the policy of the people of the State of California to be that, except in unusual cases where the interest of justice demands a departure from the declared policy, no judge shall grant probation to any person who shall have been convicted of robbery, burglary or arson, and who at the time of the perpetration of said crime * * * was himself armed with a deadly weapon * * *.“Except as hereafter provided in this section, probation shall not be granted * * * to any defendant unless the court shall be satisfied that he has never been previously convicted of a felony * * * and at the time of the perpetration of said offense * * * he was himself armed with a deadly weapon * * * or he personally used or attempted to use a deadly weapon upon a human being in connection with the perpetration of said previous offense * * * ” (Emphasis added.)

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