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Court of Appeal, Second District, Division 3, California.

The PEOPLE, Plaintiff and Appellant, v. Fred Austin DRAKE, Defendant and Respondent.

Cr. 27407.

Decided: March 23, 1976

John E. Howard, Acting Dist. Atty., Harry B. Sondheim, Head Appellate Division, Daniel L. Bershin, Deputy Dist. Attys., Los Angeles, for appellant. Richard S. Buckley, Public Defender, Harold E. Shabo, Francis J. Bardsley, Dennis A. Fischer, Deputy Public Defenders, Los Angeles, for respondent.

Following submission on the testimony contained in the transcript of the proceedings had at the preliminary hearing defendant, on April 17, 1975, was found guilty as charged of a violation of first degree robbery. (Pen.Code, § 211.) On May 9, 1975, his motion for new trial was denied, proceedings suspended and probation granted upon condition, inter alia, that the first 6 months be spent in the county jail.1 The People appeal from the order of May 9, 1975, modifying the finding of guilt by reducing it to a conviction of grand theft, person. (Pen.Code, § 487, subd. 2.) The appeal lies. (Pen.Code, § 1238, subd. (a)(6).)


It appears without conflict that on October 12, 1974, a taxi driver by the name of Jimmy Sheldon was robbed of some $112 to $120 at knife point by a passenger identified to be defendant. No contention is advanced that the conviction lacks evidentiary support. At the time the cause was before the court following defendant's conviction of first degree robbery, the following occurred:

‘[THE COURT] The matter is now before this Court following a conviction of first-degree robbery, for probation and sentencing.

Will the defendant waive further arraignment for sentence and judgment?

MR. BARDSLEY: He will, Your Honor, and there is no legal cause. There is, however, pending before the Court an orally-noticed motion for a new trial or, in lieu thereof, a reduction of the Information from the first-degree robbery to a lesser offense, either second-degree robbery or 487.2 of the Penal Code.

We'd ask the Court, because of two things, essentially; Mr. Drake's very exemplary record up until six months ago, having had no contacts with the law, and having honorably served his country in the Army, to reduce this matter to a lesser offense. That, and the fact that in this instance I think Mr. Drake has adequately convinced both myself and, I think, the probation officer, and the Court that this thing that he did was not something that he had planned out. It was something that he did on the spur of the moment, rather foolishly, and he didn't arm himself with a dangerous and deadly weapon. He had a plastic ballpoint pen.2 He suffered a very grievous injury, and as a matter of fact, I think he's going to have his third operation next week, and I really think Mr. Drake has learned his lesson in this regard.

He's never had an opportunity to be on probation before. So I would ask the Court to reduce it to a lesser offense and grant Mr. Drake probation, and take into consideration the time he's served in the County Jail to this point.

‘THE COURT: Thank you. The Court will deny the defendant's motion for a new trial.

In lieu thereof, however, under authority of Section 1181 of the Penal Code, will find that the defendant is guilty under the facts in this case, and under the evidence of this case, of 487.2 of the Penal Code, and the judgment in this matter heretofore entered is therefore modified accordingly.

The matter of probation and sentencing having also been submitted on the probation officer's report, the Court will indicate at this time that I have read the probation officer's report consisting of ten pages. I would commend the probation officer for the in-depth report that he submitted to this Court.

I would commend the defendant for the exemplary life which he's lived up to this point, and I might indicate that this is basically the reason why the Court is doing what it's doing at this time. I think that young lives ought to be salvaged, and if there is something that I can do as a Judge of this court to help and to assist you in your attitude that you will not do this kind of thing again, and if my sentencing can be helpful in that regard, I think it's my job to do it. And that's the reason why I am doing this this morning.

The Court then, will grant the defendant's application for probation, will admit him to a term of probation in the amount of three years. Will order proceedings in this matter suspended, and the conditions of probation will be as follows: . . .'


Conceding the power of the trial court to temper justice with mercy in appropriate cases by the granting of probation, fixing of minimum sentences or committing to the Youth Authority, the People contend that the trial court abused its discretion in the instant case in reducing the charge. It is argued that under Penal Code section 1181 subdivision 6 the trial court has no power to reduce the charge for merciful considerations but only when the evidence shows defendant was not guilty of the crime of which he was convicted but was guilty of a lesser degree thereof or of a lesser included offense in which case the conviction may be modified accordingly.

Defendant contends that the People have failed to establish an abuse of the discretion granted a trial court under section 1181 subdivision 6 and, in any event, are prohibited by constitutional guarantee against double jeopardy (Cal.Const., art. I, § 15) from appealing the order and seeking reinstatement of the conviction of robbery. For those reasons it is urged that the judgment be affirmed and the appeal dismissed.


We have no difficulty in concluding that the trial court erred in reducing the conviction of first degree robbery to grand theft, person, a lesser included offense. While grand theft had been held to be a lesser included offense (People v. Smith, 268 Cal.App.2d 117 ,121, 73 Cal.Rptr. 859), the record before the court does not show that defendant's conviction of first degree robbery was contrary to the law or evidence. Under such circumstances the court was without power to reduce the conviction. (People v. Anderson, 15 Cal.3d 806, 809, 126 Cal.Rptr. 235, 543 P.2d 603; People v. Ford, 65 Cal.2d 41, 51, 52 Cal.Rptr. 228, 416 P.2d 132; People v. Byrd, 42 Cal.2d 200, 213, 266 P.2d 505; People v. Diaz, 61 Cal.App.2d 748, 753, 143 P.2d 747.) If the conviction was contrary to law or evidence, a new trial should have been granted. (Pen.Code, § 1181, subd. 6.) In People v. Serrato, 9 Cal.3d 753, 761–762, 109 Cal.Rptr. 65, 70, 512 P.2d 289, 294 it was said: ‘The purpose of these amendments [authorizing modification] was to obviate the necessity of a new trial when the trial court, on motion for a new trial, or an appellate court, on appeal, believed that the evidence established the lesser offense but not the greater. (People v. Kelley (1929), 208 Cal. 387, 391–392, 281 P. 609.) [Emphasis added] . . . When a trial judge reduces a conviction to a lesser offense shown by the evidence, it is reasonably inferable that the judge had the belief that the evidence proved the lesser offense and not the greater.’ (Emphasis added.) However as pointed out in Serrato that is not necessarily true.

The record in the instant case demonstrates beyond a reasonable doubt that in reducing the conviction the trial court gave no consideration to the sufficiency of the evidence to prove the crime charged in the information and of which defendant was originally convicted, but was otherwise motivated in the action taken. The motion for the reduction was based upon two things, (1) ‘Mr. Drake's very exemplary record’, and (2) his ‘having honorably served his country in the Army.’ By denying the motion for a new trial without comment, we must assume that the trial court was not concerned with the law or the evidentiary support for the robbery conviction. The court's subsequent comments disclose the reason for the modification to be a desire to commend defendant for the exemplary life which he had lived up to that point and not because he was improperly convicted of first degree robbery. Having properly been found guilty of robbery defendant should have been sentenced for robbery. By granting defendant probation on the robbery conviction, the trial judge could have legally tempered justice with mercy if he so desired. However such cannot be accomplished under section 1181 by a reduction of the crime.

Since we have concluded that it was error to reduce the conviction we turn to defendant's contention that the constitutional guarantee against double jeopardy prevents reinstatement of the robbery conviction.

In support of the claim of double jeopardy it is suggested that ‘the action taken by Judge Mills in this case in modifying the verdict from robbery to the lesser included offense of grand theft-person necessarily implied a preliminary finding that respondent was not guilty of robbery. ‘It has long been established that the California Constitution's guarantee against double jeopardy prohibits appellate relief to the People after an acquittal. (People v. Hill (1905) 146 Cal. 145 [79 P. 845].)’ (People v. Serrato, supra, 9 Cal.3d [753] at p. 762. fn. 7 [109 Cal.Rptr. 65, 512 P.2d 289].)' We do not agree that the trial court's action in the instant case implied a preliminary finding of not guilty of robbery. As pointed out above the inference is inescapable that, in denying the motion for a new trial the trial court did not find that the original conviction was contrary to law or evidence. Under the circumstances the order appealed from did not constitute an acquittal of the offense of robbery. We find nothing in People v. Serrato, supra, 9 Cal.3d 753, 109 Cal.Rptr. 65, 512 P.2d 289, requiring a contrary conclusion.3 If the granting of a new trial or the unauthorized reduction to an offense neither charged nor included is not to be deemed an acquittal, we envisage no reason why an unauthorized reduction to a lesser included offense should be characterized as an acquittal for the purpose of invoking the rule of double jeopardy in this case. Since the trial judge did not rule that the evidence was insufficient to support the original conviction and did not impliedly or otherwise set that conviction aside, there has been no acquittal. Reversal of the order simply requires that defendant be resentenced on the first degree robbery charge, not retried.

The motion to dismiss the appeal is denied. The order of May 9, 1975, is reversed and the cause remanded for further proceedings not inconsistent with the views expressed herein.


1.  On July 30, 1975, because of ‘inadvertence and clerical error’ the minute order of the 9th of May was amended nunc pro tunc as of that date to add the following: ‘Pursuant to Section 1181 Penal Code, offense is reduced to 487.2 Penal Code. Judgment is ordered modified.’

2.  Although counsel for defendant characterizes the object as a ballpoint pen, Sheldon's testimony that it was a knife is uncontradicted in the record. In any event the nature of the object used is immaterial since robbery of a taxi driver is first degree robbery under Penal Code section 211a.

3.  We note that in People v. Anderson, supra, 15 Cal.3d 806, 809, 126 Cal.Rptr. 235, 543 P.2d 603, and in People v. Serrato, supra, 9 Cal.3d 753, 762, 109 Cal.Rptr. 65, 512 P.2d 289, the court found it unnecessary to discuss the question of whether or not double jeopardy attached where the court's ruling did not require retrial. Since our determination of the matter likewise does not entail a retrial but only a resentencing, we anticipate no double jeopardy problem herein.

ALLPORT, Associate Justice.

FORD, P. J., and POTTER, J., concur.

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