Scofield

Douglas Wayne Scofield was charged with three counts of burglary. (Pen. Code, § 459.) The first two counts involved a burglary of an inhabited building in the nighttime, the third count with an inhabited building. He was also charged with receiving stolen property. (Pen. Code, § 496, subd. 1.) He pleaded not guilty, his Penal Code section 1538.5 motion was denied and he waived a jury. The court found Scofield guilty of first degree burglary on the first two counts and not guilty on the third burglary count and the receiving stolen property count. Scofield received the midterm of four years concurrent sentences on each count. There are two issues on appeal; Must the People establish a nighttime entry as a necessary element of first degree burglary before it is proper to consider Scofield’s confession? Secondly, was the confession obtained as a result of illegal police conduct?

Facts

Most briefly, the facts supporting the guilty verdict are;

Betty Zimmer testified she and her husband were away from home between April 2 and April 16, 1982. Although they had locked up before they *370 left, when they returned they discovered a broken window and a broken lock. The house had…