Failla

A jury convicted defendant of five counts of burglary ( 459, Pen. Code) and one of kidnaping ( 207, Pen. Code); on appeal the Supreme Court reversed the judgments on the burglary counts and affirmed the judgment on the kidnaping count (VI) (People v. Failla, 64 Cal.2d 560, 571 [ 51 Cal.Rptr. 103 , 414 P.2d 39 ]). On retrial a jury found defendant guilty of first degree burglary on counts I, II as amended, III and IV; it could not agree as to count V and the same was later dismissed. He was sentenced to the state prison for the term prescribed by law on each count, the sentences to run concurrently with each other but consecutively with the sentence previously imposed on count VI (kidnaping) and affirmed by the Supreme Court (People v. Failla, 64 Cal.2d 560, 571 [ 51 Cal.Rptr. 103 , 414 P.2d 39 ]). He appeals from the judgment.

Count IV

Around 2:15 a.m. on August 14, 1963, Constance Brenner was awakened by a man standing at the foot of her bed shining a flashlight into her face. The covers had been removed and her nightgown was pulled up exposing her; the man, armed with something that "looked like a paper opener or like a stiletto," told her to make no noise, all he…