People v. Knight

• Decision Date: 06 October 1988
• Docket Number: No. B021658,B021658
• Citation: 252 Cal.Rptr. 17,204 Cal.App.3d 1420
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ronald Edward KNIGHT, Defendant and Appellant.

Page 17

252 Cal.Rptr. 17

204 Cal.App.3d 1420

The PEOPLE, Plaintiff and Respondent, v.Ronald Edward KNIGHT, Defendant and Appellant.

No. B021658.

Court of Appeal, Second District, Division 1, California.

Oct. 6, 1988.

Charlotte E. Costan, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Donald E. De Nicola and Joseph P. Furman, Deputy Attys.Gen., for plaintiff and respondent.

ORTEGA, Associate Justice.

FACTUAL AND PROCEDURAL HISTORY

Defendant and appellantRonald 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.

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 tool shed, (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 4 to 8 inches in diameter measuring 8 feet by 10 feet by 7 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).

In People v. Buyle(1937)22 Cal.App.2d 143, 70 P.2d 955, a construction company powder magazine achieved the distinction of being classified as a building.A witness testified "that it was an excavation dug out of a hill, approximately 30 or 35 feet in depth, 6 feet in width and 6 1/2 feet in height; that the floor was wooden planking, laid on dirt; that the rear, side walls and roof were formed of natural earth and rock, with some planks overhead to prevent a cavein; and that the door did not constitute the entire front wall, as there was a little space between its edge and the side walls."(At p. 148, 70 P.2d 955.)

Buyle referred to a Missouri case State v. Clark, 221 Mo.App. 893, 288 S.W. 77, in which "a hole dug 3 or 3 1/2 feet deep, 3 or 4 feet wide and 6 or 7 feet long, and covered by some boards and a tarpaulin, was held to be a building within the meaning of a penal law which declared every building where intoxicating liquor was manufactured a public nuisance."(People v. Buyle, supra, 22 Cal.App.2d at p. 149, 70 P.2d 955.)

In People v. Oliver(1970)129 Ill.App.2d 83, 262 N.E.2d 597, it was held that possession of keys for the purpose of unlawful entry into vending machines constituted the crime of possession of burglary tools.But this was under a statute prohibiting the possession of tools suitable for breaking into "any depository designed for the safekeeping of property".Several courts have come to similar conclusions under specific statutes not requiring them to determine that the device broken into was a building.(Shumate v. Commonwealth(Ky.1968)433 S.W.2d 340;Koonce v. Commonwealth(Ky.1970)452 S.W.2d 822;State v. Aspell(1966)5 Ohio App.2d 44, 213 N.E.2d 748;State v. Zumwalt(1968)7 Ariz.App. 348, 439 P.2d 511.)

Respondent has also demonstrated the Legislature's intent to extend the protection of the burglary statute to a wide variety of structures; an intent with which we do not quarrel.

In the instant matter, the jury was instructed, inter alia, that in order to find appellant guilty of burglary it must find that he"entered any business, business building or business structure."Thus, by its verdict, the jury determined that the gang box came within the provisions of Penal Code section 459.In spite of the liberality with which various courts have construed Penal Code section 459, we cannot find the evidence sufficient to justify the jury's finding.

While there is no shortage of cases telling us what a building is, there is precious little to tell us what a building isn't.People v. Richards(1888)108 N.Y. 137, 15 N.E. 371, determined that an above-ground granite burial vault, 10'4"' X 16'4"' X 10'6"', was not a building.But the court there did so by expressly refusing to consider any...