Ware

This is a second appeal arising out of defendant’s conviction of two counts of first degree robbery committed September 14, 1963, in violation of Penal Code section 211. Before sentencing defendant to state prison on January 29,1964, the trial judge stated that he was “prohibited by the code” from granting probation. On defendant’s appeal the District Court of Appeal for the Second Appellate District, Division Two, in an unpublished opinion, pointed out that the trial court had failed to make any finding that defendant had used or attempted to use a gun upon a human being, or any express finding that this was not an unusual case where the interest of justice demands a departure from the declared policy of the Legislature. The judgment was reversed and the case remanded to the trial court with directions to rearraign appellant for judgment, to hear and determine appellant’s application for probation, “and thereafter to proceed in the premises as required by law.” (People v. Ware, 2 Crim 9828, decided Jan. 26, 1965.)

On April 22, 1965, defendant was brought back before the same judge who had sentenced him previously. The judge stated that he had read and considered the probation…