PEOPLE v. SANCHEZ (1990)

OPINION

 The sole issue appellant raises is whether the trial court's failure to designate the degree of murder of which he stands convicted compels the reduction of the conviction to second degree murder which would require a remand for resentencing.¹  We will conclude the record of the proceedings demonstrates the court found the murder to be in the first degree with sufficient specificity to satisfy the requirements of the applicable statutes and case law.

THE PROCEEDINGS

The facts constituting the underlying conviction are of little significance in this appeal.   Indeed, the parties agree appellant committed murder.   (Appellant entered the victim's house in the middle of the night.   When the victim confronted appellant with a knife, appellant took the knife and stabbed him.)

The first count of a two-count information alleged appellant, Frank Sanchez, Jr., “did willfully, unlawfully, and with malice aforethought murder VAHAN TASHJIAN․”  A special circumstance allegation alleged appellant committed the murder with the intent to kill while engaged in the commission and attempted commission of burglary.   As an enhancement the information also alleged appellant personally used a knife.   The second count charged appellant with burglary with intent to commit larceny of Tashjian's home and appellant's personal use of a knife to inflict great bodily injury.   The trial court subsequently dismissed the second count.   The prosecution did not seek the death penalty.

Prior to trial, the prosecution moved to amend the information to delete the words “with the intent to kill” from the felony murder special circumstance allegation on the premise that intent to kill was not an element of the crime of first degree felony murder.  (See People v. Anderson (1987) 43 Cal.3d 1104, 240 Cal.Rptr. 585, 742 P.2d 1306.)   The court denied the motion on the mistaken belief that Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862 required the prosecution to prove intent to kill as an element of first degree felony murder because the crime occurred before Anderson.

The defense proceeded on the theory that although appellant inflicted the fatal wounds, he did not intend to kill the victim.   At the end of the prosecution's case, defense counsel moved for an acquittal of the felony murder special circumstance allegation, contending the prosecution had failed to carry its burden of proof on the question of intent to kill.   The trial court granted the motion and struck the special circumstance allegation.   Defense counsel then stated:

“I would ask to have a few minutes to talk with Mr. Sanchez in light of that.   I mean, at this point, basically, we've admitted the first degree murder and he's admitted that and I'd like to talk to him about what way—would—how we would proceed further at this point on the Court's ruling.”

During a recess the trial court reexamined its initial ruling on the question of intent to kill and determined it had mistakenly denied the motion to amend the information in the first instance and it had mistakenly granted the motion for acquittal on the special circumstance allegation.²  The court concluded, however, it was without power to change its ruling on the acquittal motion.

At this point defense counsel stated to the court appellant was prepared to “waive further jury trial and submit the matter to the Court on the remaining charges, which would be the first degree murder charge and the allegation of using of a knife.”   The court then inquired of appellant:

“THE COURT:  All right.   Mr. Sanchez, you've heard what your attorney just told me, didn't you?

“THE DEFENDANT:  Yes.

“THE COURT:  You understand, of course, that you do have an absolute right to have a jury determine all the issues in this case, specifically, the question of guilt or innocence of the charge of first degree murder or any lesser included offense and also specifically have the jury determine whether or not the enhancement which is pled, which is the personal use of a knife is true or not.

“You understand you have a right to a jury trial on those issues?

“THE DEFENDANT:  A—yes.”

The minute order reflects appellant submitted the matter to the court on the remaining charges “which would be the first degree murder charge and the allegation of the use of a knife.”   The court stated its decision as follows:

“The Court finds that by proof beyond a reasonable doubt the Defendant, Frank Sanchez, Junior, is guilty of the crime alleged in Count One of the Information, namely, violation of Section 187 of the Penal Code, a felony, in that on or about October 23, 1982 the Defendant willfully, unlawfully and with malice aforethought murdered Vahan Tashjian, a human being.”

The verbal pronouncement made no reference to the degree of the murder.

The minute order states the court found appellant “guilty of the crime alleged in count 1 of the information, violation of section 187 of the Penal Code, a felony.”   The presentence probation officer's report recites the court found appellant guilty of first degree murder.   Appellant did not challenge the content of the probation officer's report.

The court granted a substitution of counsel for appellant prior to sentencing.   Referring to conversations between appellant and his prior counsel, newly appointed counsel stated, “—and I understand [former counsel] went into great detail with him given the fact that there is a first degree murder conviction.”   Shortly thereafter, the court asked defendant, “All right.   Mr. Sanchez, you heard what [defense counsel] just told me.   Do you agree with that?”   Appellant answered, “Yes, I do.”

The court sentenced appellant consistent with a first degree murder conviction, 25 years to life in state prison (Pen.Code, § 190),³ with a one-year enhancement, but again made no verbal reference to the degree of the crime.   The commitment, signed by the court, designates the murder to be in the first degree.

DISCUSSION

 Any analysis of a court's failure to state the degree of a crime of which it finds a defendant guilty requires an initial review of sections 1157 and 1192:

“Whenever a defendant is convicted of a crime or attempt to commit a crime which is distinguished into degrees, the jury, or the court if a jury trial is waived, must find the degree of the crime or attempted crime of which he is guilty.   Upon the failure of the jury or the court to so determine, the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree.” (§ 1157).

“Upon a plea of guilty, or upon conviction by the court without a jury, of a crime or attempted crime distinguished or divided into degrees, the court must, before passing sentence, determine the degree.   Upon the failure of the court to so determine, the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree.” (§ 1192).

Two things are undeniably clear from these proceedings:  (1) the court failed to say “first degree” in open court when it convicted appellant or at any time thereafter and (2) the court intended to find appellant guilty of first degree murder.   Additionally, both appellant's counsel at trial and his counsel at sentencing considered the conviction to be of the first degree.   Appellant, himself, when questioned by the court, responded he understood his counsel's representation that he had been found guilty of first degree murder.

The opinions of the California courts which have dealt with the issue in various contexts have held sections 1157 and 1192 must be interpreted rigidly and literally in favor of defendants, despite the recognition by several courts that in the application of the rule, “form triumphs over substance, and the law is traduced.”  (People v. Johns (1983) 145 Cal.App.3d 281, 295, 193 Cal.Rptr. 182;  see also People v. Williams (1984) 157 Cal.App.3d 145, 153, 203 Cal.Rptr. 562, and People v. Lamb (1986) 176 Cal.App.3d 932, 934, 222 Cal.Rptr. 570.)

The modern genesis of this strict principle appears to be dictum in a footnote in People v. Beamon (1973) 8 Cal.3d 625, 105 Cal.Rptr. 681, 504 P.2d 905, which reads in part:

“Although the jury found that defendant was armed with a deadly weapon at the time of the commission of the robbery it failed to apply such finding to fix the degree of that crime.  (See § 211a.)   Section 1157 directs that when a defendant is convicted of a crime which is distinguished into degrees the finder of fact ‘must’ find the degree of the crime, and in the absence of such a determination the defendant ‘shall be deemed’ to be guilty of the lesser degree.   We cannot assume, contrary to the clear legislative direction, that because a factual finding was made which would have warranted a determination of first degree robbery, the jury unmistakably intended (see People v. Flohr (1939) 30 Cal.App.2d 576, 581 [86 P.2d 862] ) to make that determination when it refrained from expressly fixing the degree.   The degree of the crime must, in accordance with the statute, be deemed to be of the second degree.   Anything to the contrary in People v. Doran (1972) 24 Cal.App.3d 316 [100 Cal.Rptr. 886], and People v. De Arkland (1968) 262 Cal.App.2d 802 [69 Cal.Rptr. 144] is disapproved.”  (Id. 8 Cal.3d at p. 629, fn. 2, 105 Cal.Rptr. 681, 504 P.2d 905.)

The following year, the Supreme Court dealt with the issue in a different context in People v. Flores (1974) 12 Cal.3d 85, 115 Cal.Rptr. 225, 524 P.2d 353.   After a trial in which the court found defendant guilty of burglary, the parties stipulated the court could fix the degree of the crime at the time of defendant's probation hearing.   At that time the court suspended imposition of sentence for three years, placed defendant on probation and imposed a condition of one year in the county jail.   However, the court failed to fix the degree of the burglary and, as far as indicated in the opinion, the trial court said nothing from which a reviewing court could infer the degree intended.

The issue before the court was whether suspending imposition of sentence was “passing sentence,” since “[t]he benefits accorded by section 1192 are available only when, pursuant to its express provisions, the court fails to fix the degree of the crime ‘before passing sentence.’ ”  (People v. Flores, supra, 12 Cal.3d at p. 93, 115 Cal.Rptr. 225, 524 P.2d 353.)   The People appear not to have argued the court in some way in fact fixed the degree of the crime.   Rather, the prosecution contended sentence had not been passed because sentence had been suspended and the court retained jurisdiction to fix the degree after granting probation.   The Supreme Court held that since an order granting probation is an appealable order, it is “passing sentence” for the purpose of section 1192.

Relying upon Beamon and Flores, the Supreme Court and appellate courts have applied the requirements of section 1157 and 1192 strictly and literally.  (See People v. McDonald (1984) 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709 (jury failed to find degree of murder expressly, although it did find a special circumstance to be true and was instructed to consider the special circumstance only if it determined the murder to be in the first degree);  People v. Williams, supra, 157 Cal.App.3d 145, 203 Cal.Rptr. 562 (following a nonjury trial the court found defendant “ ‘․ guilty as charged in Count 1, on the Amended Information, murder, a violation of Section 187 of the Penal Code’ ”;  the additional finding of two special circumstances to be true did not support an implied finding the murder was in the first degree);  People v. Johns, supra, 145 Cal.App.3d 281, 193 Cal.Rptr. 182 (the jury received instructions exclusively on first degree felony murder and found defendant guilty of both robbery and murder, but did not fix the degree of murder specifically);  People v. Thomas (1978) 84 Cal.App.3d 281, 148 Cal.Rptr. 532 (the court, without a jury, found defendant guilty of robbery with a firearm use enhancement, but did not fix the degree of the robbery at either the pronouncement of the verdict or at sentencing;  the appellate court rejected the People's argument that a finding of first degree can be implied from the use of a firearm finding).)

Other more recent cases have avoided the harsh result dictated by such a pedantic application of sections 1157 and 1192.   When the verdict uses language to describe the crime in such a way that the intent of the trier of fact regarding the degree is unmistakable, courts have held the degree has been sufficiently expressed to satisfy the statutory requirement.  (See People v. Atkins (1989) 210 Cal.App.3d 47, 258 Cal.Rptr. 113 (the jury's verdict provided it found defendant “guilty of burglary of a residence,” and residential burglary is by definition burglary of the first degree);  People v. Goodwin (1988) 202 Cal.App.3d 940, 249 Cal.Rptr. 430 (the jury's verdict found defendant guilty of “ ‘residential burglary ․ as charged,’ ” and the information alleged burglary of an inhabited dwelling house);  People v. Deay (1987) 194 Cal.App.3d 280, 239 Cal.Rptr. 406 (following a nonjury trial the court found defendant guilty of residential burglary).)

Another circumstance in which an appellate court has found the degree of the crime sufficiently specified is discussed in People v. Lamb, supra, 176 Cal.App.3d 932, 222 Cal.Rptr. 570.   When defendant changed his plea to guilty, he signed a form which acknowledged he desired to plead guilty to “ ‘․ 11 Cts of 459 residential ․’ ” and he “ ‘․ enter[ed] inhabited residences with the intent to commit theft․’ ”  The Lamb court notes the purposes of sections 1157 and 1192 are two:  to resolve ambiguities and uncertainties in the form of the verdict or plea and to protect the defendant from having the degree of the crime increased after judgment.

“Sections 1157 and 1192, however, have a rational underpinning.   In both a plea and trial context there must be an express finding on the degree of the crime to avoid the defendant being placed at risk that the degree of the crime will be increased after judgment.   Modification of a criminal judgment is contrary to the strong policy which prohibits judicial action following judgment except to permit the correction of clerical errors.  (See People v. Hartsell (1973) 34 Cal.App.3d 8, 13 [109 Cal.Rptr. 627].)   The statute also assists in resolving ambiguities or uncertainties in the form of the verdict or plea.   Without sections 1157 or 1192 a conviction based on a plea of guilty to burglary without any statement as to the degree of the crime requires expenditure of unnecessary time and effort to unravel the meaning of that plea.   Our courts have also recognized the dangers inherent in after-the-fact efforts to set the degree of crime by implication.  (See People v. Williams, supra, 157 Cal.App.3d 145 [203 Cal.Rptr. 562].)   The decision to favor defendants under such circumstances by designating the crime one of second degree is a legislative response to correct judicial oversight.

“Thus, section 1192 was enacted to cover the situation where the defendant's guilty plea fails to specify the degree of the offense.   We would have that situation here had Lamb pleaded guilty to burglary without further specification.   But those are not the facts before us.   Our detailed recitation of the procedural steps leading up to Lamb's guilty plea highlights Lamb's entry of a plea to first degree burglary and knowledge throughout that he was to be convicted of first degree burglary.   A statement to the latter effect is contained in every court document which is part of this record.   In light of these documents which state Lamb's convictions of burglary are in the first degree, no implication on our part is necessary to determine the degree of his crimes.   Section 1192 does not require reducing Lamb's convictions to second degree burglaries.”  (176 Cal.App.3d at p. 935, 222 Cal.Rptr. 570;  emphasis added.)

There are no ambiguities or uncertainties surrounding the proceedings in the record before us.   Appellant acknowledged he knew the court had convicted him of first degree murder.   Appellant's counsel stated appellant had admitted first degree murder and described the charges to be submitted for decision as first degree murder and using a knife.   The probation officer's report, unchallenged by appellant, noted the court found appellant guilty of first degree murder.   Appellant's new counsel at sentencing recited the conviction to be for first degree murder.   The court, from the prison term it imposed and from the commitment it signed, unmistakably believed the conviction was for first degree murder.   Since the court unequivocally imposed a first degree murder sentence and appellant knew he had received a term of 25 years to life, this is not a case in which appellant entered state prison without knowledge by him or prison authorities of the degree of the crime or the length of his term.

Turning to the second purpose for the principle evidenced by the sections, appellant is not at risk of standing convicted of a greater crime than that to which he was originally sentenced.   He knew he submitted the case as a first degree murder charge and he acknowledged the court thereafter found him guilty of first degree murder.

We conclude under these circumstances the court satisfied the requirements of section 1157, “․ the court if a jury trial is waived, must find the degree of the crime ․,” and section 1192, “․ upon conviction by the court without a jury, of a crime ․ divided into degrees, the court must ․ determine the degree.”

DISPOSITION

We affirm the judgment.

I respectfully dissent.

The charging language of the information did not specify the degree of murder with which the defendant was accused, nor did it incorporate language specifying that the killing occurred in the course of a burglary or attempted burglary so as to make clear that a first degree felony murder was charged.   In finding the defendant guilty “of the crime alleged in Count One of the Information, namely, violation of Section 187 of the Penal Code, a felony,” the court not only failed to fix the numerical degree of the crime but failed to make any finding that the defendant had committed the offense in the course of a burglary or attempted burglary so as to make clear by definition, if not by number, that the crime was murder in the first degree.   Nor did the court make clear to defendant at the time it accepted his waiver of jury trial that any conviction would of necessity be first, rather than second, degree murder or some other degree of homicide.   Specifically, the court advised defendant before it accepted his jury waiver:

“THE COURT:  You understand, of course, that you do have an absolute right to have a jury determine all the issues in this case, specifically, the question of guilt or innocence of the charge of first degree murder or any lesser included offense and also specifically have the jury determine whether or not the enhancement which is pled, which is the personal use of a knife is true or not.”  (Emphasis added.)

As the majority notes, the “opinions of the California courts which have dealt with the issue in various contexts have held sections 1157 and 1192 must be interpreted rigidly and literally in favor of defendants, despite the recognition by several courts that in the application of the rule, ‘form triumphs over substance, and the law is traduced.’ ”   In an effort to escape the perceived absurdity of the rule as applied to this case, the majority then ignores the critical facts in favor of applying rules that are relevant only in a totally different factual context.

In People v. Goodwin (1988) 202 Cal.App.3d 940, 249 Cal.Rptr. 430, the distinction between the factual and legal circumstances of cases like the present and those cases relied upon by the majority is clearly described.   In Goodwin, the information which charged defendant with burglary alleged that he had entered an inhabited dwelling house, which was an occupied “residence,” with an intent to commit larceny.   The jury's verdict found the defendant “ ‘guilty of residential burglary, in violation of Penal Code section 459, a Felony, ․’ ” but failed specifically to find that it was burglary of the first degree.   In upholding defendant's sentence for first degree burglary, the Goodwin court reasoned:

“Penal Code section 1157 and its counterpart for pleas of guilty, section 1192, requiring a determination of the degree of the crime when the offense is divided into degrees, have been strictly and literally applied in favor of defendants (People v. Williams (1984) 157 Cal.App.3d 145, 154–155 [203 Cal.Rptr. 562] ), occasionally resulting in what has been characterized as a triumph of form over substance (id. at p. 153 [203 Cal.Rptr. 562];  see People v. Anaya, supra, 179 Cal.App.3d [828 at p. 831 [225 Cal.Rptr. 51];  People v. Lamb (1986) 176 Cal.App.3d 932, 934 [222 Cal.Rptr. 570] ).   The frustration with form over substance arises because ‘the statute applies to reduce the degree [of the crime] even in situations in which the jury's intent to convict of the greater degree is demonstrated by its other actions․'  (People v. McDonald (1984) 37 Cal.3d 351, 382 [208 Cal.Rptr. 236, 690 P.2d 709, 46 A.L.R.4th 1011].)   Accordingly, section 1157 has been applied to reduce the offense even where, for example, the jury returned a special circumstance finding which necessarily was predicated upon a determination of first degree murder (id. at pp. 381–383 [208 Cal.Rptr. 236, 690 P.2d 709] ), or where the jury found true a related enhancement allegation from which the higher degree of the offense logically could be inferred (People v. Beamon (1973) 8 Cal.3d 625, 629, fn. 2 [105 Cal.Rptr. 681, 504 P.2d 905] ).

“Here, however, Penal Code section 1157 does not apply to reduce the degree of the offenses, because the verdict forms did not find appellant guilty simply of burglary without any indication of the degree.   The jury's verdict form did specifically find appellant guilty of ‘residential burglary ․ as charged’ in the information which alleged the burglary of an ‘inhabited’ dwelling.  ‘Every burglary of an inhabited dwelling house ․ or the inhabited portion of any other building, is burglary of the first degree.’  (Pen.Code, § 460.)   There is also ‘no practical difference between burglary of an inhabited dwelling house and residential burglary.’  (People v. Deay, supra, 194 Cal.App.3d at p. 284 [239 Cal.Rptr. 406].)   Accordingly, since the verdict forms specified ‘residential burglary’ and referred to the information which described ‘an inhabited dwelling house,’ necessarily constituting burglary of the first degree, the jury satisfied the requirement that it specify the degree ‘in the verdict form.’  (People v. McDonald, supra, 37 Cal.3d at p. 382 [208 Cal.Rptr. 236, 690 P.2d 709].)

“There is no logical reason to compel the fact finder to articulate a numerical degree when, by definition, ‘first degree burglary’ and ‘residential burglary’ are one and the same thing.   To the extent that the court in In re Jacob M. (1987) 195 Cal.App.3d 58, 62–63 [240 Cal.Rptr. 418] arrives at a contrary conclusion, we decline to follow it.   A descriptive and definitive label constitutes an acceptable alternative to specifying degree by number.”   (202 Cal.App.3d at pp. 946–947, 249 Cal.Rptr. 430.)

All of the cases relied upon by the majority in support of its position are essentially similar in their facts, and are subject to the same legal rationalization, that the court found decisive in the Goodwin case.   (People v. Atkins (1989) 210 Cal.App.3d 47, 258 Cal.Rptr. 113;  People v. Deay (1987) 194 Cal.App.3d 280, 239 Cal.Rptr. 406;  People v. Lamb (1986) 176 Cal.App.3d 932, 222 Cal.Rptr. 570.)   No basis exists, however, for applying that rationalization to the present circumstances.

As noted at the outset of this dissenting opinion, the charging language of the information did not allege facts from which the degree of homicide might be inferred, nor did the court make any factual findings which might be held descriptive of first degree murder in the absence of direct numerical specification of the degree.   Even in its discussion with defendant over the jury waiver, the court left open for decision what degree of homicide it might find the defendant had committed.   We are thus left in the posture of having to infer from circumstances what was in the trial judge's mind and to imply a finding which the trial court did not expressly make.

In its opinion, the majority states:

“There are no ambiguities or uncertainties surrounding the proceedings in the record before us.   Appellant acknowledged he knew the court had convicted him of first degree murder.   Appellant's counsel stated appellant had admitted first degree murder and described the charges to be submitted for decision as first degree murder and using a knife.   The probation officer's report, unchallenged by appellant, noted the court found appellant guilty of first degree murder.   Appellant's new counsel at sentencing recited the conviction to be for first degree murder.   The court, from the prison term it imposed and from the commitment it signed, unmistakably believed the conviction was for first degree murder.   Since the court unequivocally imposed a first degree murder sentence and appellant knew he had received a term of 25 years to life, this is not a case in which appellant entered state prison without knowledge by him or prison authorities of the degree of the crime or the length of his term.”

None of the circumstances recited by the majority justifies the statement that “[t]here are no ambiguities or uncertainties surrounding the proceedings in the record before us,” or authorizes us to make a factual finding that the trial court itself failed to make.   Appellant's belief that the court had convicted him of first degree murder is totally irrelevant in light of the fact that he did not plead guilty and no issue is presented concerning whether his conviction rests on knowing and intelligent waivers of all rights.   Nor can his attorney's statement, or the probation officer's possibly mistaken understanding, concerning the degree of the conviction substitute for a statutorily mandated finding by the court.   And, finally, the authorities are clear and uniform that a finding of the degree of crime may not be implied from the nature and terms of the sentence imposed on the conviction.  (People v. McDonald (1984) 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709;  People v. Williams (1984) 157 Cal.App.3d 145, 203 Cal.Rptr. 562.)

For the reasons set forth above, I would modify the judgment to fix the degree of murder as murder of the second degree and would remand the matter for resentencing.

FOOTNOTES

1.   Our review of the record revealed an additional issue—whether appellant entered a “slow plea” without advice or waiver of his constitutional rights as required by Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, and Bunnell v. Superior Court (1975) 13 Cal.3d 592, 119 Cal.Rptr. 302, 531 P.2d 1086.   However, neither party asserts this issue on appeal, and appellant has specifically waived any error on this ground.   Therefore, we do not consider the issue.

2.   The court had apparently believed In re Baert (1988) 205 Cal.App.3d 514, 252 Cal.Rptr. 418 was controlling.  Baert held that Anderson did not apply retroactively to crimes committed during the period when Carlos required proof of intent to kill.  (205 Cal.App.3d at p. 516, 252 Cal.Rptr. 418.)   However, appellant committed the crime in 1982, prior to the finality of Carlos.  People v. Poggi (1988) 45 Cal.3d 306, 246 Cal.Rptr. 886, 753 P.2d 1082, held that Anderson does apply retroactively to offenses committed prior to the finality of Carlos.  (45 Cal.3d at pp. 326–327, 246 Cal.Rptr. 886, 753 P.2d 1082.)

3.   All statutory references are to the Penal Code unless otherwise indicated.

STONE (WM. A.), Acting Presiding Justice.

ARDAIZ, J., concurs.