People v. Nelson

[636]

Opinion

PUGLIA, P. J.

Defendant was convicted after a jury trial of burglary (Pen. Code, § 459) and two counts of felonious assault respectively upon Inez McLeod and Jay Donald McLeod. (Pen. Code, § 245, subd. (a).) He was sentenced to the six-year upper term for burglary and a four-year upper term for each assault. The court ordered the terms to run consecutively and stayed all but one-third of the middle term on the assault counts. (Pen. Code, § 1170.1, subd. (a).)

In the published part of this opinion we shall reject defendant’s contention that the sentence violates Penal Code section 654 because the burglary and the assaults were part of an indivisible transaction committed with a single purpose.

The victims, Mr. and Mrs. McLeod, lived in Grass Valley. Mr. McLeod, a gold miner, kept a large amount of gold and cash in his back bedroom. The McLeods were asleep in their Grass Valley home when Mrs. McLeod was awakened by the sound of glass shattering in the back bedroom. She got out of bed, turned on the ceiling light, and saw intruders. She wakened her husband, who armed himself with a handgun from under his pillow and went to the back bedroom. One of the intruders came into the McLeod’s bedroom and hit Mrs. McLeod over the head with a bludgeon of some type, most likely a baseball bat. The assailant then jumped on the bed, knocked out the ceiling light, and retreated to the back bedroom.

Mr. McLeod found two men in the back bedroom. He fired at one of them who exclaimed, “You shot me.” Mr. McLeod was then struck from behind and kicked.

Mrs. McLeod picked up the telephone, found it to be out of order, and screamed for help. One of the intruders returned from the back bedroom and broke a chair over her head. He then beat her with pieces of the chair and with the telephone. When her assailant returned to the back bedroom, Mrs. McLeod left the house and contacted the police.

Before trial, William Ward entered a plea of guilty to first degree burglary of the McLeod residence. Pursuant to a plea bargain, Ward was granted probation and testified for the prosecution.

Ward testified that Emmet Boyer, a former superintendent of the mine at which Ward worked, approached him with a plan to steal the McLeod’s gold and money. Ward suggested the plan to defendant, who said he was