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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond LEWIS, Defendant and Appellant.

Cr. 14768.

Decided: March 26, 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.

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 be 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 concurently 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 calibre revolver drawn. He proceeded into the stock room, an area from which the public is normally excluded, and into a ladies rest room which was adjacent to the stock room. A separate lounge connected 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 was trying to get up; however, the barrel of a gun appeared from the side of the 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 rest room.

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 rest room 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 than she customarily used, discovered a revolver. On the same date, Stephen Curish, a police officer for the City of Los Angeles who 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.

The Contentions

The sole contention on appeal is that it was error for the trial court to include in the judgment as to count I (burglary of the first degree) the finding ‘that defendant was armed as alleged.’ The information, in count I thereof, alleged ‘That at the time of the commission of the above offense said defendant was armed with a deadly weapon, to wit, a revolver.’

‘Every person who enters any * * * shop, * * * store, * * * or other building, * * *, with intent to commit grand or petit larceny or any felony is guilty of burglary.’ (§ 459 Penal Code.) ‘Every burglary of an inhabited * * * 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 Penal Code.) Under a statute defining first degree burglary as the breaking and entering into any dwelling house or other place of human habitation with intent to commit a felony, habitation in strict technical terminology is an abode for the moment, although in a broader sense it may be a component part of a residence and domicile. (Smart v. State, 244 Ind. 69, 190 N.E.2d 650.) We are of the opinion that the word ‘inhabited’ as used in section 460 of the Penal Code, when applied to a building, means a building used as a dwelling, or as living quarters.

The building here in question was occupied by the employees of the Food Giant Supermarket who at the time of the burglary were engaged in their customary duties of closing the establishment at the close of the day's business. There is no evidence that the building was occupied as a dwelling, or living quarters. The degree of the burglary therefore would depend upon whether the defendant was armed with a deadly weapon at the time of its commission, or while in the commission the defendant armed himself with a deadly weapon, or while in the commission of the burglary the defendant assaulted a person. (See People v. Warwick, 135 Cal.App. 476, 27 P.2d 396; People v. Black, 73 Cal.App. 13, 28, 238 P. 374; People v. Clintion, 70 Cal.App. 262, 233 P. 78.)

‘The gravamen of a charge of burglary is the act of entry which must be accompanied by a felonious intent. The existence of the requisite intent may be inferred from circumstantial evidence [citation], and the crime of burglary is complete when an entry with the essential intent is made, regardless whether the felony planned is committed or not [citation].’ (People v. Walters, 249 Cal.App.2d 547, 550, 57 Cal.Rptr. 484, 486.) Here, the defendant and his co-conspirator were frustrated in the completion of their plan to burglarize the market. The assault with a deadly weapon and the theft of Mr. Patrick's gun occurred after the defendant was discovered in the market building and during his effort to escape. The trial court ordered the sentence on the charge of assault with a deadly weapon to run consecutively to the sentence on the burglary charge, and ordered the sentence on the charge of grand theft to run concurrently with the sentence on the assault charge, indicating that the court found that the course of conduct of the defendant was divisible. Here the first degree burglary was accomplished when the defendant entered the market armed with a deadly weapon with the specific intent to steal. The assault with a deadly weapon, and the theft of the gun occurred after the burglary had been committed although its object had not been achieved. The burglary could have been accomplished without the commission of the assault and without commission of the theft of the gun. We are of the opinion that the evidence supports the trial court's finding of the divisibility of the defendant's course of conduct. (See In Re Chapman, 43 Cal.2d 385, 389, 273 P.2d 817; Seiterle v. Superior Court, 57 Cal.2d 397, 401, 20 Cal.Rptr. 1, 369 P.2d 697; People v. Houghton, 212 Cal.App.2d 864, 872–873, 28 Cal.Rptr. 351.)

As heretofore pointed out, the defendant was charged with burglary and with being armed with a deadly weapon at the time of its commission. The evidence disclosed that he was armed with a deadly weapon at the time of the commission of the burglary. This made the burglary that of the first degree, that is burglary of an uninhabited building committed by a person armed with a deadly weapon. In these circumstances the finding in the judgment relating to the burglary count ‘that defendant was armed as alleged’ should be stricken as imposing double punishment under section 12022 Penal Code in violation of section 654 Penal Code.

The judgment is modified by striking therefrom, under count I, the language ‘that defendant was armed as alleged.’ (See People v. Thomsen, 239 Cal.App.2d 84, 97–98, 48 Cal.Rptr. 455.)

The judgment, as modified, is affirmed.



1.  The order denying motion for a new trial, in the circumstances here shown, is a non-appealable order. (§ 1237 Penal Code.) Therefore, the appeal from such order must be dismissed.

FRAMPTON,* Associate Justice pro tem. FN* Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.

COBEY, Acting P. J., and SCHWEITZER, J., concur.

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