McDonald

Defendant was charged with the nighttime burglary of the home of Charles W. Rubin on July 7, 1979. After a jury trial he was found guilty as charged and sentenced to prison. He appeals.

*41 Facts

Charles Rubin lived at 1707 Corning, Los Angeles. He retired at about 11 p.m. on July 6, 1979 and was awakened between 4:30 and 5 a.m. on July 7 when he heard footsteps coming over a chain link fence. This was followed by an announcement: “This is the police. We’ve got the house surrounded. Come out with your hands up.” He then heard someone say “Okay! Okay. I’m coming out.” Rubin never saw the apparent burglar. He did, however, meet with the police and they went through the house together. Everything was in order except for a slit in the screen near a window latch in the second bedroom. In the living room Rubin found two screwdrivers and a flashlight which were not his. There was no evidence of ransacking.

At the trial Rubin further testified that he had never met defendant before and had not given him permission to be in his home that night or at any other time.

The reason the police action had been so efficient was that officers had actually observed defendant entering the…