Thomas

*283 Opinion

This appeal follows sentence for violations of (I) Penal Code section 211 (robbery); the court also found that defendant used a firearm (pistol) within the meaning of Penal Code section 12022.5; and (2) a violation of Penal Code section 245, subdivision (a) (assault by means of force likely to produce great bodily injury and with deadly weapon). Credit was given for time in custody.

There is but one issue. 1 Must the finding that the robbery was in the first degree be stricken and robbery in the second degree be substituted therefor because the judge failed to set the degree before passing sentence? The answer is in the affirmative.

There is no conflict as to the facts. An armed robbery was committed by defendant and the victim injured by being struck on the head with the butt of a pistol.

At the conclusion of the evidence on April 18, 1977, the court stated: “I find each of the defendants guilty of the offenses charged in Counts I and III; not guilty of the offense charged in Count II. I find that the allegations that each of the defendants used a firearm within the meaning of Penal Code Section 12022.5 to be true.”

On June 7, 1977, at time of sentencing, the…

I reluctantly concur with the result. This is another case in which we are required to exalt form over substance.

Penal Code section 211a 1 provides: “All robbery which is perpetrated by torture or by a person being armed with a dangerous or deadly weapon ... is robbery in the first degree. . . .”

In pronouncing judgment the trial court stated, “I find each of the defendants guilty of the offenses charged in Counts I [robbery] and III .... I find that the allegations that each of the defendants used a firearm within the meaning of Penal Code Section 12022.5 to be true.”

Although it seems clear that the trial court unmistakably intended to find appellant guilty of first degree robbery, 2 we are required to reduce *286 appellant’s conviction to second degree robbery under the compulsion of People v. Beamon, 8 Cal.3d 625 [ 105 Cal.Rptr. 681 , 504 P.2d 905 ], which considered this issue in footnote 2 on page 629.

Amended subsequent to defendant’s conviction and sentencing, effective July 1,1977.

It should be noted that the trial court on July 13 in an ex parte order amended the June 7 sentencing order by adding the following: “The order of 6-7-77 is amended by *286 adding the…

This appeal follows sentence for violations of (1) Penal Code section 211 (robbery); the court also found that defendant used a firearm (pistol) within the meaning of Penal Code section 12022.5; and (2) a violation of Penal Code section 245, subdivision (a) (assault by means of force likely to produce great bodily injury and with deadly weapon). Credit was given for time in custody.

There is but one issue. [1] Must the finding that the robbery was in the first degree be stricken and robbery in the second degree be substituted therefor because the judge failed to set the degree before passing sentence? The answer is in the affirmative.

There is no conflict as to the facts. An armed robbery was committed by defendant and the victim injured by being struck on the head with the butt of a pistol.

At the conclusion of the evidence on April 18, 1977, the court stated: "I find each of the defendants guilty of the offenses charged in Counts I and III; not guilty of the offense charged in Count II. I find that the allegations that each of the defendants used a firearm within the meaning of Penal Code Section 12022.5 to be true."

On June 7, 1977, at time of…