Lewis

Defendant Robert Orin Lewis, Jr., and codefendant, Michael Ray Fowler, were each charged by information with two counts of burglary (Pen. Code, § 459—count I, burglary of the Country Store; count II, burglary of the Coffee Mug Restaurant) and one count of possession of tools designed to break into a vending machine (Pen. Code, § 466.3—count III). Each was convicted by a jury of counts II and III but acquitted on count 1.

Sentenced to state prison for the middle term of two years for the burglary with a concurrent term of one year in the county jail for the possession conviction, defendant appeals contending: (1) juror misconduct requires reversal; (2) the evidence was insufficient to support the burglary conviction; and (3) because a boltcutter is not a tool “designed” to break into a vending machine as required by Penal Code section 466.3, there was a failure of proof as to count III. The last contention has merit.

Facts

At approximately 10:30 p.m., July 30, 1983, Robert Race discovered that his business establishment in Walker, named the Country Store, had been burglarized and $200 to $300 worth of coins had been taken from video machines.

On that same date, just…