Zelaya

Trial by jury having been waived by defendant James A. Zelaya (Zelaya), he was found guilty by the superior court of the crime of first degree burglary. He appeals from an order of probation conditional upon his service of one year in the county jail.

The sole contention of the appeal is stated as: “Trial court erred in finding the appellant guilty of first degree residential burglary.”

In his ensuing argument Zelaya admits that he had committed a burglary of the subject premises. The issue is narrowed to whether it was of the first degree or second degree. He insists that it was of the second degree and not burglary of an “inhabited dwelling house” as proscribed by Penal Code section 460.

We state the related evidence as it was presumably found true by the superior court.

The manager of a San Francisco apartment house resided on the first floor above its garage and basement. Early one morning he heard metallic sounds in the area below and suspicious, he called the police. Two police officers promptly arrived. Investigating, they observed that wire covering an 18 by 24 inch vent on the garage wall had somehow been cut, allowing entrance to that portion of the…