People v. King
| Decision Date | 27 February 1969 |
| Docket Number | Cr. 13894 |
| Citation | 75 Cal.Rptr. 478 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph KING, Jr., Defendant and Appellant. |
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.
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:
(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...
To continue reading
Request your trial
-
People v. King
...the meaning of Penal Code section 12022. In all other respects the judgment is affirmed.' After the Court of Appeal filed a new opinion, 75 Cal.Rptr. 478, the People petitioned for a hearing, and we granted the petition to consider this case along with the case of People v. Floyd, Cal., 80 ......