Stroff

On September 4, 1928, the defendant

pleaded guilty to the crime of burglary, with which he was regularly charged and sentenced to imprisonment in the state prison at San Quentin. The record shows that at the time of passing sentence the court failed to designate whether the offense to which the defendant had pleaded guilty was burglary in the first or second degree. Thereafter, and in May, 1933, after hearing upon the appellant’s petition for a writ of habeas corpus, this court remanded the appellant to the trial court in order that the degree of the offense to which the appellant had pleaded guilty should be ascertained and determined. (In re Stroff, 132 Cal. App. 351 [ 22 Pac. (2d) 770 ].)

In pursuance of the order and direction of this court, the trial court of Humboldt County having brought the appellant before it, proceeded to take testimony to determine the degree of the offense to which the defendant had pleaded guilty, and thereupon found such offense to be burglary in the first degree. Prom this action of the trial court the defendant appeals.

Two grounds are relied upon for reversal—1st: That the trial court had no jurisdiction to proceed to determine the degree of…