Knight

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…