People v. Verdier

• Decision Date: 09 February 1950
• Docket Number: Cr. 2635
• Citation: 96 Cal.App.2d 29,214 P.2d 433
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. VERDIER.

Page 433

214 P.2d 433

96 Cal.App.2d 29

PEOPLE v. VERDIER.

Cr. 2635.

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

Feb. 9, 1950.

W. E. Overson, P. B. Zavlaris, San Jose, attorneys for appellant.

Fred N. Howser, Attorney General of the State of California, David K. Lener, Deputy Attorney General, N. J. Menard, District Attorney of Santa Clara County, San Jose, Allan P. Lindsay, Assistant District Attorney, San Jose, attorneys for respondent.

DOOLING, Justice.

Appellant was charged jointly with one F. W. with the crime of robbery. He pleaded guilty and asked for probation. Probation was denied, the court fixed the degree at first degree robbery and sentenced appellant for the term prescribed by law.

The appellant presents a reporter's transcript of the proceedings at which the degree was determined by the court from which it appears that no evidence was taken on the subject. Instead the court referred to the testimony of a complaining witness taken on the trial of the co-defendant who was acquitted of the charge by a jury, and concluded from his recollection of that testimony that the crime was robbery of the first degree.

Under Penal Code section 1192 after a plea of guilty of a crime divided into degrees 'the court must, before passing sentence, determine the degree.' While a hearing to determine the degree of an offense held under this section is not a trial in its full technical sense and the court may consider matters not admissible on the issue of guilt or innocence, People v. Williams, 14 Cal.2d 532, 95 P.2d 456; In re Steve, 73 Cal.App.2d 697, 167 P.2d 243, the burden of the decisions is that the court should take evidence in the presence of the defendant to determine the degree of the crime, People v. Mendez, 27 Cal.2d 20, 161 P.2d 929; People v. Bellon, 180 Cal. 706, 182 P. 420; People v. Chew Lan Ong, 141 Cal. 550, 75 P. 186, 99 Am.St.Rep. 88; People v. Stratton, 133 Cal.App. 309, 24 P.2d 174; People v. O'Brien, 122 Cal.App. 147, 9 P.2d 902; People v. Paraskevopolis, 42 Cal.App. 325, 183 P. 585.

In People v. Chew Lan Ong, supra [141 Cal. 550, 75 P. 187], the claim was made that sec. 1192 Pen.Code 'is unconstitutional because it does not provide any manner or mode whereby the court is to reach its determination of the degree of the crime.'

The court said, 141 Cal. at pages 552-553, 75 P. at page 187, 99 Am.St.Rep. 88:

'Jurisdiction to determine the matter is, however, expressly conferred on the court by the section. This means that there shall be a judicial determination; and where power is especially conferred upon a court of general jurisdiction to determine a particular question, and no special mode for that determination is pointed out, the jurisdiction conferred necessarily implied authority in such court to call to its assistance in determining the particular question the same aid as is usually employed by it in reaching a judicial determination in other cases.

'The universal aid is evidence. This was the means employed by the lower court in determining the degree of crime in the case at bar. It is the only means by which a judicial determination can be had, and was the means which it was contemplated by the Legislature should be invoked by the court.'

In People v. Bellon, supra, we read at 180 Cal. 707, 182 P. at page 421, 'The appropriate and proper method for a court to pursue in such a case is to receive such competent evidence from the respective parties as is material to the question of degree, and, the evidence having been concluded, to pronounce its determination thereon.'

Again in People v. Paraskevopolis, supra, the proper procedure is outlined, 42 Cal.App. at page 330, 183 P. at page 587: 'So, where there is a plea of guilty in such a case, there must first be some foundation for the exercise by the court of its judgment as to the punishment which should be inflicted, the penalty for the two degrees of murder or of burglary (also divided into degree) being different. The only legal way such foundation can be laid is, as section 1192 plainly and peremptorily points out, for the court to ascertain and determine the degree, and this can be done properly only by taking evidence addressed to that fact; and if in any case of a plea of guilty to a crime divided into degrees that has not been done--that is, that such determination has not been made in an appropriate legal way--then the judgment of sentence has not been legally pronounced.'

In People v. O'Brien, supra, the defendant was remanded to the trial court with directions to determine the degree after taking evidence on that subject. In determining the degree in that case the trial court had acted solely on the report of the probation officer. The court reviewed the authorities, 122 Cal.App. at pages 154-157, 9 P.2d at pages 904, 905, and concluded that the defendant had not been accorded the hearing to which he was entitled, saying, 122 Cal.App. at page 155, 9 P.2d at page 905: 'Notwithstanding the fact that it has been decided that the hearing which may be conducted by the trial court for the purpose of determining the degree of the offense 'is not a trial,' nevertheless the only means by or through which the court is authorized to reach a conclusion in the matter is by the aid of evidence.'

Finally in People v. Mendez, supra, the court said tersely, citing earlier cases, 27 Cal.2d at pages 23-24, 161 P.2d at page 931: 'It (the degree of the crime) is a matter * * * which must be determined by the court on competent evidence...