Rosenbrock

After a preliminary hearing, defendant was charged by information with violation of section 459 of the Penal Code (burglary). A prior violation of section 470 of the Penal Code (forgery) was also alleged. Defendant denied the prior and pleaded not guilty. Trial by jury was waived, and the matter was submitted on the testimony in the first 33 pages of the transcript of the preliminary hearing, subject to the right of either side to put on additional testimony. After testimony by the complaining witness and the defendant, the court found the defendant guilty of burglary in the second degree. No disposition was made on the prior. A motion for a new trial and probation were denied. Defendant was sentenced to the state prison for the term prescribed by law. Defendant appeals from the judgment and from the order denying his motion for a new trial.

Facts

The defendant arrived at the home of a friend, Pease, in Studio City about noon on February 4, 1966. He had met Pease about one and a half years previously, while both were incarcerated in a county penal institution. During the course of their friendship, Pease had come into good financial times. Pease testified that although he was…