People v. Lewis

• Decision Date: 22 July 1969
• Docket Number: Cr. 14768
• Citation: 274 Cal.App.2d 912,79 Cal.Rptr. 650
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Raymond LEWIS, Defendant and Appellant.

Page 650

79 Cal.Rptr. 650

274 Cal.App.2d 912

The PEOPLE, Plaintiff and Respondent, v. Raymond LEWIS, Defendant and Appellant.

Cr. 14768.

Court of Appeal, Second District, Division 3, California.

July 22, 1969.

Gilbert F. Nelson, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Bernard S. Kamine, Deputy Atty. Gen., for plaintiff and respondent.

FRAMPTON, Associate Justice pro tem. ^*

Statement of the Case

Defendant was charged by information with burglary while armed with a deadly weapon in violation of section 459 Penal Code (Count I), assault with a deadly weapon with intent to commit murder in violation of section 217 Penal Code (Count II), and grand theft of a firearm in violation of section 487( 3) of the Penal Code (Count III). He was also charged with a prior conviction of rape, a felony, on February 25, 1948, of robbery on May 18, 1948 (and imprisonment in state prison), of robbery on February 28, 1962 (and imprisonment in state prison). All were suffered in Los Angeles County.

Before trial the first prior conviction was stricken and the defendant admitted the second and third priors.

Upon trial by jury, defendant was found guilty of burglary which was fixed at burglary of the first degree. He was also found to have been armed at the time of the commission of the offense. He was also found guilty of both assault with a deadly weapon under section 245 of the Penal Code and grand theft. A probation report was ordered. After hearing, defendant's motion for a new trial was denied, probation was denied, and sentence to state prison followed. The sentences on counts I and II were ordered to run consecutively. The sentence on count III was ordered to run concurrently with the sentences on counts I and II. The appeal is from the judgment and from the order denying motion for a new trial. ¹

Statement of Facts

Shortly after midnight on the morning of August 1, 1967, John Charles Patrick a security guard at the Food Giant Supermarket, 1021 West Santa Barbara Street, in the City of Los Angeles, was checking out various areas of the store subsequent to its closing and prior to his and other employees' departure. As was his custom, he had his .38 caliber revolver drawn. He proceeded into the stock room, an area from which the public is normally excluded, and into a ladies restroom which was adjacent to the stock room. A separate lounge concected to the restroom was used by the supermarket for storage. In this lounge, which was lighted, Mr. Patrick noticed some boxes which were not in their usual location. Upon investigating, he discovered a man crouched behind the boxes and ordered him to get up. He heard the man scuffling around as though he were trying to get up; however, the barrel of a gun appeared from the side of a box. Mr. Patrick started backing toward the entrance to the lounge. He was about six to eight feet from the box when a shot was fired from the gun which appeared from the side of the box.

The first shot missed Mr. Patrick, and he continued backing toward the door. However, as he got to the door, a second shot was fired which struck him in the knee. He fell backwards onto his back just outside the lounge and lay there for a few minutes. Then the defendant came out of the lounge. He had a gun, and he started firing at Mr. Patrick who was still lying on the floor. When the two men were about three or four feet apart, Mr. Patrick twice fired his own gun at the defendant; however, the defendant continued to approach him. The two men began to struggle. Defendant beat Mr. Patrick over the head with his (defendant's) gun. Mr. Patrick dropped his own gun, but succeeded in wrestling defendant's gun away from him. He could not get the defendant's gun to fire, so he dropped it on the floor. Meanwhile, defendant had picked up Mr. Patrick's revolver. The latter then released his hold on the defendant, and the defendant, after picking up his own weapon, fled with both guns. During the struggle, a second man came out of the lounge, fired a shot from a gun he was carrying, and ran through the door of the restroom.

This struggle occurred at about 12:15 to 12:30 a.m. on August 1, 1967. As a result of the beating and the gunshot wound, Mr. Patrick was hospitalized for about two months.

Shortly after midnight on the same morning, Ernest L. Taylor and Ruby Tunstall, employees of the supermarket, had finished their post-closing duties and were waiting for the manager to unlock a door so that they could leave. A man suddenly appeared from the back of the store. After trying unsuccessfully to open one of the exit doors, he took a gallon wine jug and threw it through a glass panel in the door. He then left the store through the broken panel.

Mrs. Tunstall then heard screaming from the area of the ladies restroom in the back of the store. Both she and Mr. Taylor saw the defendant come from the back of the store. The defendant was brandishing two guns. Mr. Taylor thought one of the guns was an automatic and that the other was a revolver. Defendant fled from the store through the hole in the door panel made by the other man. Mr. Patrick, Mrs. Tunstall and Mr. Taylor positively identified the defendant as the man carrying the two guns.

About 8 a.m. on August 1, 1967, Agnes Mills discovered the defendant hiding under a carpet near the rubbish container at the rear of her apartment at 1078 West 39th Street, in the City of Los Angeles. Defendant had been shot twice. The police were called, came to the location and took the defendant away. The Food Giant Market, where the defendant shot Mr. Patrick, is located about three blocks from Mrs. Mills' apartment.

Nelda R. Ridley lived in another apartment in the same complex as Mrs. Mills. On August 20, 1967, Miss Ridley, on her way to the trash area, using a route different from the one she customarily used, discovered a revolver. On the same date, Stephen Curish, a police officer for the City of Los Angeles, responded to Miss Ridley's telephone call, and following the latter's directions, recovered the revolver which Miss Ridley had discovered. He picked up the weapon in the back yard near a fence at 1080 West 39th Street. This weapon was later identified as Mr. Patrick's revolver.

Inasmuch as the sufficiency of the evidence to sustain the judgment is not under attack, we will not detail the evidence of the defense. The defense was that of an alibi.

In the original proceedings on appeal, defendant contended that it was error for the trial court to have included in the judgment as to count I (burglary of the first degree) the finding 'that defendant was armed as alleged.' Count I of the information had alleged 'That at the time of the commission of the above offense said defendant was armed with a deadly weapon, to wit, a revolver.' The inclusion of this finding, defendant claimed, violated the double punishment provision of Penal Code, section 654, since his conviction for first degree burglary necessarily included the implied finding that he had been armed. The Attorney General argued, in response, that the conviction on count I was not dependent upon defendant's having been armed because the burglary had occurred in an inhabited building at night.

This court rendered its opinion, filed March 26, 1969, wherein we held that the building occupied by the Food Giant Supermarket at the time of the burglary was an unihabited building within the meaning of section 460 of the Penal Code. The Attorney General petitioned for a rehearing, which was granted, urging that such holding was erroneous in that occupancy of the building by employees of the market at the time of the commission of the burglary classified such building as an inhabited structure within the purview of section 460 of the Penal Code. The defendant on rehearing argues in support of the court's view on this issue. Upon further consideration of this question we are of the opinion that the holding in the original opinion is sustained by sound reason and the weight of authority.

'Every person who enters any house, * * * shop, * * * store, * * * or other building, * * * with intent to commit grand or petit larceny or any felony is guilty of burglary.' (§ 459 Pen.Code.) 'Every burglary of an inhabited dwelling house * * * or building committed in the nighttime, and every burglary, whether in the daytime or nighttime, committed by a person armed with a deadly weapon, or who while in the commission of such burglary arms himself with a deadly weapon, or who while in the commission of such burglary assaults any person, is burglary of the first degree.' (§ 460 Pen.Code.)

The suggestion that 'inhabited' modifies only 'dwelling house' is not pressed by respondent in its brief on rehearing and is not supported by law. Several cases have held that the word 'inhabited' modifies the word 'building.' (People v. Warwick, 135 Cal.App. 476, 27 P.2d 396; People v. Slepnikoff, 101 Cal.App. 238, 281 P. 657 (dictum); People v. Black, 73 Cal.App. 13, 28, 238 P. 374; People v. Clinton, 70 Cal.App. 262, 233 P. 78.) Further, in order to accept respondent's view we would be forced to construe section 460 as affording more protection to structures not used as residences than to structures used as residences, since burglary of the former would be of the first degree regardless of whether the structure was inhabited or uninhabited. Such a construction would be in direct conflict with the common law policy of protecting the home and only the home. (4 Blackstone Commentaries 223, 224; 2 Wharton's Criminal Law, § 423 pp. 44--46; Comment, Development of the Law of Burglary in California, 25 So.Cal.L.rev. 75; Note, A Rationale of the Law of Burglary, 51 Colum.L.Rev. 1009, 1020--1021; State v. Surles, 230 N.C. 272, 52 S.E.2d 880, 882.) Although the common law concept of burglary has been vastly expanded, so that many types of buildings are now protected (Pen.Code, § 459; 25...