Taylor

Taylor pleaded not guilty when indicted on three counts of burglary (Pen. Code, § 459), one count of attempted burglary (Pen. Code, § 664), two counts of grand theft (Pen. Code, §487), and two counts of possession of a weapon by a felon (Pen. Code, § 12021). Except on the two counts of grand theft he was found guilty as charged. Additionally, the court found he was armed during the commission of the offenses.

One of the burglary victims, Mendelson, testified that a diamond pin and a gold watch belonging to his wife were found missing from his home near the UCLA campus on May 4, 1964. Darlene Grose, originally a codefendant, was granted immunity and testified that between May and August Taylor had given her the pin identified by Mendelson and a watch. In November Taylor told her that he had stolen them, and he took her to view the burglarized homes near UCLA. They discussed which homes would be burglarized that night. At 11 p.m. she drove Taylor to a residential neighborhood near UCLA, where she parked the car and waited while Taylor *13 with a gun tucked in his belt went to commit the burglaries. On his return to the ear about 6 a.m. Taylor said he had entered the burglarized…

On petition for rehearing, the Attorney General contests the reduction of the judgment on counts I and III from first to second degree burglary, arguing there was sufficient evidence these burglaries were committed in the nighttime to support a conviction for burglary in the first degree.

It might well be that a conviction for first degree burglary could have been supported by some other finding than the one relied on by the court, but our concern on appeal is with the decision of the court and not with what might have *15 been. The judgment, the clerk’s minutes, and the reporter’s transcript reflect a decision based on a finding that defendant was armed with a deadly weapon at the time of these offenses, a finding unsupported by evidence on counts I and III.

The weakness in the Attorney General’s assumption that other findings from the evidence would necessarily have been made by the trial court becomes apparent from a casual examination of the present record. Mr. Brunswick, the victim of count III, placed the time of that burglary at 5 :20 on the morning of May 4, 1964. According to the Almanac on that date sunrise at Los Angeles occurred at 5 Pacific Standard Time. Without…

Taylor pleaded not guilty when indicted on three counts of burglary (Pen. Code, 459), one count of attempted burglary (Pen. Code, 664), two counts of grand theft (Pen. Code, 487), and two counts of possession of a weapon by a felon (Pen. Code, 12021). Except on the two counts of grand theft he was found guilty as charged. Additionally, the court found he was armed during the commission of the offenses.

One of the burglary victims, Mendelson, testified that a diamond pin and a gold watch belonging to his wife were found missing from his home near the UCLA campus on May 4, 1964. Darlene Grose, originally a codefendant, was granted immunity and testified that between May and August Taylor had given her the pin identified by Mendelson and a watch. In November Taylor told her that he had stolen them, and he took her to view the burglarized homes near UCLA. They discussed which homes would be burglarized that night. At 11 p.m. she drove Taylor to a residential neighborhood near UCLA, where she parked the car and waited while Taylor with a gun tucked in his belt went to commit the burglaries. On his return to the car about 6 a.m. Taylor said he had entered the burglarized…