Cuellar

Defendant Cuellar and one Harold Lumar were accused of attempted burglary. Cuellar admitted an allegation of the information that he had been convicted previously of burglary, a felony. In a nonjury trial Cuellar was adjudged guilty of attempted burglary of the second degree, and Lumar was adjudged not guilty. Cuellar appeals from the judgment and the order denying his motion for a new trial.

On January 5, 1963, about 5 p.m., when Mrs. Blem, the owner of a food store at 2521 La Salle Street in Los Angeles, closed the store for that day, the windows of the building were in good condition and everything in the store was in order. When she returned there about 11 p.m. of that day, after having received a telephone call, she found that the glass in the front door and the back window had been broken and that glass was inside the store and on the window ledge. She had not given anyone permission to enter the store.

About 10 p.m. of said day, when Mr. Yalenz, who resided in an apartment above the store, went downstairs he saw the two defendants standing at the back of a laundromat which was next to the store. He heard one of them say, “Let me in through the back.” After a conversation…