Gatch

Defendant was found guilty by a jury of attempted burglary and sentenced to state prison for the term prescribed by law, pursuant to Penal Code section 1168. Probation in another case was revoked and state prison sentence imposed pursuant to Penal Code section 1168. The sentences were to be served concurrently.

Defendant argues that the recent case of People v. Harris, 15 Cal.3d 384 [ 124 Cal.Rptr. 536 , 540 P.2d 632 ], should be given retroactive application and then applied herein. We conclude that under Harris the judgment must be affirmed and therefore do not address the issue of retroactivity.

Facts

At approximately 10:10 a.m. on February 28, 1975, Thomas Myers heard the burglar alarm sounding at the Mishak residence some quarter to half mile away. The area is not densely populated. The police were contacted and Myers went to investigate. He arrived after the lapse of approximately two minutes.

He noted an open screen door and rear gate. He observed defendant and another person about 200 yards from the house hitchhiking. Thereafter he saw a woman sitting in an old Dodge or Plymouth. He took down the vehicle license number. Defendant and the other man were walking…