West

Appellant Theodore William West was charged by information with second degree burglary (Pen. Code, § 459) of Gene’s Sport Shop.

He pleaded guilty before Judge McGuire pursuant to a plea bargain whereby he would be allowed to withdraw his guilty plea “if the court cannot carry out the sentence within the limits negotiated,” i.e., “up to one year in the Marin jail, with a State Prison Sentence suspended, set at the middle term of two years.” Appellant appeared for sentencing before Judge Broderick, who found himself unable to sentence appellant according to the plea bargain and permitted him to withdraw his guilty plea.

Judge Menary presided at appellant’s jury trial. Appellant testified and presented several witnesses to a defense of diminished capacity. The jury found appellant guilty as charged. The court sentenced him to prison for an aggravated term of three years.

Appellant was caught in the act of burglarizing a sporting goods store. At trial he claimed to have only a minimal recollection of the incident due to intoxication which diminished his capacity to form the intent to steal. Although the police had not noticed any signs of intoxication, two of appellant’s…