People v. Garfield

Opinion

NEWSOM, J.

Appellant was convicted of first degree burglary and possession of a firearm by a narcotics addict. He appeals from the judgment entered thereon, making no challenge to the burglary conviction, but arguing under Penal Code section 654 that he piay not be punished for both a burglary and possession of a weapon taken in the course of the burglary. We disagree, and affirm the judgment, while remanding the matter for resentencing because of procedural error in the trial court’s imposition of the upper term of four years for the burglary conviction.

I

The admitted facts below show that appellant, a narcotics addict, burglarized the Fork residence in Loleta, California in the nighttime taking a number of items, including a .38 calibre pistol. Six days later, acting on an entirely unrelated complaint, Humboldt County deputies arrested appellant for assault with a deadly weapon near the Rio Vista Motel, where he resided. With appellant’s consent, his car was searched and the .38 calibre pistol taken in the Fork burglary was found in his wife’s purse. Appellant conceded he had put the pistol in his wife’s purse just before the arrest.

In appellant’s words, he contends that, “Penal Code section 654 requires that the judgment be modified to stay . . . sentence under Count III [since] Appellant may not be punished both for burglary and possession of a weapon taken in the course of the burglaiy.”

Penal Code section 654 reads in pertinent part as follows: “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one. ...”

[478]

If, as appellant contends, his possession of the firearm taken from the Fork residence was merely incidental to its theft, and indivisible from the burglary, then we agree he cannot be punished separately for its possession when he was apprehended at the Rio Vista Motel.

(People

v.

Panky