Enos

Defendant appeals from a judgment of conviction of second degree burglary. (Pen. Code, § 459.)

The Substantive Charge

The criminal proceedings against defendant arose from an incident occurring on October 15, 1971. At 9 a.m. on that day the doorbell rang at the home of Dr. and Mrs. Clark Kistler, who resided at 83 Almond Avenue, Los Altos. Mrs. Kistler saw a man through the hall window and went to put on a robe before answering the door. When she opened the door, the man was no longer there, but an orange Volkswagen was parked in her driveway.

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Mrs. Kistler then went outside to look around and saw a man standing in the back of the garage, facing a tool chest. She did not see anything in his hands, but when she spoke the man moved and she heard a metallic, clanging sound. According to her testimony the following conversation took place: “What was it that you wanted?” she inquired. The man responded, “I was looking for the man who lives here. He told me to pick up some tools.” Mrs. Kistler replied, “That couldn’t be right. There must be some mistake.” The man then asked, “Mr. Sanderson doesn’t live here?” “No,” Mrs. Kistler said, “Mr. Sanderson doesn’t live here.”…