People v. McCoy

• Decision Date: 13 September 1961
• Docket Number: Cr. 3188
• Citation: 195 Cal.App.2d 570,15 Cal.Rptr. 924
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Howard McCOY et al., Defendants, Ray La Rue, Defendant and Appellant.

Page 924

15 Cal.Rptr. 924

195 Cal.App.2d 570

PEOPLE of the State of California, Plaintiff and Respondent, v. Howard McCOY et al., Defendants Ray La Rue, Defendant and Appellant.

Cr. 3188.

District Court of Appeal, Third District, California.

Sept. 13, 1961.

Ray La Rue in pro. per.

Stanley Mosk, Atty. Gen., by Raymond Momboisse and Richard Lee, Deputy Attys. Gen., for respondent.

PEEK, Justice.

By information, appellant La Rue and his codefendant, one McCoy, were accused of burglary in violation of section 459 of the Penal Code. Upon arraignment, appellant waived his right of counsel and entered a plea of guilty to the crime as charged. Probation was denied, judgment of conviction was pronounced, and appellant was sentenced to state prison for the term prescribed by law. On the afternoon of the same day, court reconvened to determine the degree of the crime. Upon the sole testimony of McCoy, the crime was determined to be burglary in the first degree.

Appellant, who appeals on his own behalf, appears to make three contentions. First, that before entering a plea of guilty to a crime divided into degrees, the degree must first be determined and hence, the court committed prejudicial error when it pronounced judgment prior to the determination of the degree of the offense; second, that the evidence was insufficient to support a finding that the crime was burglary in the first degree; and third, that he was under the belief that he was pleading guilty to burglary in the second degree.

Under the procedure prescribed by section 1192 of the Penal Code where, as here, there has been a plea of guilty to a crime 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 of which the defendant is guilty, shall be deemed to be of the lesser degree.' In People v. Helm, 156 Cal.App.2d 343, 319 P.2d 644, a similar situation was presented, the only difference being that in the present case sentence was pronounced during the morning session and the degree was not established until the afternoon session, while in the Helm case the court fixed the degree immediately after pronouncing judgment and sentencing the defendant.

In the cited case the court specifically noted that to uphold the defendant's contention would do violence to section 1404 of the Penal Code, which reads: 'Neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has...