People v. Knight

Opinion

ORTEGA, J. Factual and Procedural History

Defendant and appellant Ronald Edward Knight (appellant) and a confederate were interrupted while committing burglary at a construction site. In the ensuing confusion, appellant’s cohort was struck by a pickup and killed. Appellant was tried and acquitted of murder and two counts of assault with a deadly weapon or by means of force likely to produce great bodily injury. He was convicted of two counts of second degree burglary at the construction site; count IV involving a construction trailer belonging to Graycon, Inc., and count V involving a “gang box” belonging to Warner Electric Company.

On each of the burglary counts appellant was sentenced to state prison for the high term of three years with execution of the sentence on count V stayed pending service of the sentence on count IV.

Contentions on Appeal

I. The trial court erred in sentencing appellant for two burglaries when the court itself made the factual finding that there was but one burglary.

[1422]II. The trial court erred in considering the death of the confederate as a factor warranting an upper term sentence.

I

Appellant’s first contention indirectly raises the issue of whether appellant was properly convicted of burglary of the gang box; a contention addressed in depth by respondent. The question is whether the gang box constitutes a “building” within the meaning of Penal Code section 459. Count V charged appellant with entering the “business and building” occupied by Warner Electric Company.

We have viewed photographs of the gang box received as evidence in the trial. Testimony established that the box was used to store tools. The only verbal description of that object came during Cindy Johnson’s testimony when a portion of her preliminary hearing testimony was read into the record, as follows: Question: “What are the dimensions and sizes of those gang boxes you’re talking about?” Answer: “They vary in size. It’s like six foot by four foot and about five foot tall.” Question: “Like a tool shed?” Answer: “On wheels. Small, on wheels, tool shed that locks.”

Respondent cites numerous cases showing that various structures have been found to be buildings; among them: a toolshed (People v. Mendoza (1911) 17 Cal.App. 157 [118 P. 964]), a telephone booth (People v. Nunez (1970) 7 Cal.App.3d 655 [86 Cal.Rptr. 707]), a popcorn stand mounted on small wheels approximately four to eight inches in diameter measuring eight feet by ten feet by seven feet, made of welded steel plates, consisting of floor, four walls and roof, entirely enclosed, and containing a door and two windows (People v. Burley (1938) 26 Cal.App.2d 213 [79 P.2d 148]).