AISO, J. Defendant Gilbert Richard Morga was convicted for burglary (Pen. Code, § 459 violation) by a court sitting without a jury. His motion for new trial and request for probation were denied and he was sentenced to state prison. At the same time, his probation in an earlier case, No. 320784, in which he had pleaded “nolo contendere” to a charge of statutory rape (Pen. Code, § 261, subd. 1), was revoked and a sentence of one year in the county jail imposed and suspended. His notice of appeal states merely that he appeals [202]from “the judgment and sentence,” but the notice lists both the current and earlier case Nos. A225037 and 320784.
He contends: (1) the evidence is insufficient to support his conviction for burglary, (2) he was prejudicially denied the right to separate counsel, and (3) his probation was improperly revoked in ease No. 320784. We conclude that no prejudicial error was committed and that both the judgment in the instant ease and the order revoking probation in case No. 320784 should be affirmed.
The Procedural Background
Defendant Morga and two co-defendants, Edward Guzman and Alfred Jurado, were charged in an amended information with burglary (Pen. Code, §459), and a Prank Aguilar with receiving stolen property (Pen. Code, §496). A prior felony conviction for rape (Pen. Code, §261, subd. 1) was charged against Morga, which he denied.
At the preliminary hearing, Morga, Guzman, and Jurado were represented by the same deputy public defender. On the morning of trial, November 15, 1967, the deputy public defender then representing the defendants announced that there was a conflict of interest between Jurado on one hand and Morga and Guzman on the other. He requested appointment of a private counsel for Morga and Guzman. A private- practitioner in the courtroom volunteered to undertake the representation of the two, without compensation. After a short recess, he conferred with the deputy public defender and announced that he was “going to suggest a jury waiver and submission on the transcript.” Aguilar, represented by a different retained attorney, moved for a severance of his case and severance was granted. All three remaining defendants (Morga, Guzman, and Jurado) and their respective counsel waived jury trial and agreed that the court could read and consider the transcript of the preliminary hearing as evidence. Further proceedings were continued to November 20,1967. On the latter date, the three defendants testified, the People put on an arresting officer as a rebuttal witness, and the case was submitted. The court found Guzman “not guilty” and Morga and Jurado “guilty as charged.” The reporter’s transcript reflects the court fixing the burglary at first degree, but the judgment reflects that no degree was fixed and no disposition of the prior felony conviction pleaded. We therefore treat the burglary as being of the second degree. (Pen. Code, § 1157; People v. De Arkland (1968) 262 Cal.App.2d 802, 818 [69 Cal.Rptr. 144].)
[203] The Evidence
The testimony of Mrs. Irene Montes, the victim of the burglary, given by way of the transcript of the preliminary hearing was as follows: She was returning from the market about 9:15 in the evening of September 3, 1967. As she first drove up, she saw a car parked “on the wrong side of the street.” In the lights of her car, she saw the head of one person in the car and two people outside, kneeling on the grass. The front door to the driver’s seat was open. She saw the faces of Guzman and Morga, who were outside the ear. She turned her ear around and parked it across the street from her apartment and was taking groceries out of her car, when she spotted Jurado carrying her television set from her home to the car parked across the street. Jurado had said, “Okay, let’s go,” and Morga and Guzman were getting into the car. She ran across the street and tried to stop them. Jurado got into the back seat and slammed the door. She remonstrated against their taking her television set and “grabbed the driver.” Morga was the driver. As she struggled with Morga, Jurado and Guzman helped brush her off. The ear drove off without lights. There were in all, four people in the car, two in front and two in back. She saw the faces of three, but not that of the fourth person.
Fernando Nejera’s testimony reflected by the transcript of the preliminary hearing was as follows: He was a police officer of the City of Los Angeles, working a radio car that evening. He received a call around 9 :15 or 9 :20, proceeded to the location, and interviewed Mrs. Montes. She reported that four male Mexicans had taken “a TV out of her house, they had used force.” “She tried to stop the one that was carrying it and she tried to stop the driver. [11] She gave me a description of three of the suspects and she told me that the fourth suspect was either passed out drunk or was asleep in the back seat of the car.” She also described the car and her television set in detail. He located the car parked, about two hours later, with three male Mexicans in it, two in the back seat and one in the front. He and his partner maintained surveillance of the vehicle, waiting for the fourth suspect to show up. In due time, he saw Jurado, the one described as having taken the television in the burglary, emerge from a house, holding two $10 bills in his hand. Apparently, just Jurado and two of the three persons in the car were arrested.1 [204]He then proceeded to the house from which Jurado had emerged and knocked on the door. It was opened by Aguilar. He saw a television set fitting the description given to him by Mrs. Montes just three feet from the front door. He thereafter arrested Aguilar.
Jurado testified at the trial: Before he took the television set, he, “Richard Morga and Joe Guzman” and another person had gone to a “love-in” in the afternoon. He later corrected “Joe Guzman” to Eddie Guzman and named the other person as one called “Joe.” Asked, “How did you happen to pick up Joel” he replied, “Well, he was with us before, with me and Richard Morga.” They left the “love-in” about 8 (“ [i]t was getting dark already”) in a car, which he believed was Morga’s. He and the others had drunk about a gallon of wine. He had also taken “heroin and seconals” about 10 a.m., and was “pretty intoxicated.” He had not drunk much wine.
He told the driver that he “was going to go see some girl.” Her name was “Nellie”; he had just met her a week before. He knew approximately where she lived. He went to see the girl, got out of the car, and walked up a flight of stairs. It was 10 to 15 yards uphill. He knocked on the door. The door was open and the television was on. He stepped inside to see if anybody was there, noticed no one around, and therefore took the television and walked out. He did not intend to steal anything until he was inside the apartment.
The others did not know he was going to ‘‘ steal the TV, ’’ because even he didn’t know that he would when he left the car.
When the lady came out, he told her that the television belonged to his friend, which was a lie. He lied because he was stealing the television set. “I put it in the car, and then she started hollering.” On cross-examination, however, he denied that the lady hollered. He told the others, “ [i]t is probably her mother, ’ ’ and the car took off. Morga was riot driving at the time, but he could not recall just who was driving. Morga did drive at times that evening. He could not recall where the others in the car were seated. He did not see anyone prevent the lady from recovering her television set. There was no “scuffling or hassling.” He denied that the lady grabbed the driver or that the driver pushed her hands off.
They took the television set to a friend’s (Aguilar’s) house. He did not want to take it to his home as his parents would know that it was stolen.
[205]He claimed that the $20 was in his pocket. He had worked at some upholstering place in Alhambra, the name of which he could not recall. “ [His] parole officer [had] it.” He had been paid the Friday preceding the day of his arrest.
Guzman testified at the trial: He recalled being in the car with Jurado and Morga. The three went to a “love-in” at Blysian Park. He had been drinking wine. They stayed at the “love-in” until it got dark, around 8 or 8:30. They had a gallon of wine. He drank quite a bit. He did his drinking in the morning. He did not do any drinking at the ‘ ‘ love-in. ’ ’
After leaving the “love-in,” he, Jurado and Morga went driving a bit. Jurado mentioned a girl. He recalled that they parked awhile at one place, and then parked at another place. He was sitting in the back seat when he was handcuffed. He was asleep and woke up with handcuffs on. He saw a ‘‘ TV, ’ ’ but didn’t pay much attention to it. He had no idea when Jurado mentioned going to see a girl that Jurado would “end up taking a TV set. ’ ’ Asked, whether there was a hassle or a pulling with a woman in connection with the television, he replied, “Not that I recall, sir.” He did not see any woman come out or claim the set as hers. He had no recollection of seeing the woman, who testified at the preliminary, on the night in question. He did not know Aguilar.
They switched drivers from time to time during the period he was in the car. He did not do any driving. He had no driver’s license. He could not recollect Jurado doing any driving. Morga did some of the driving, but he could not recall who was driving at the time he saw the television set.
Morga testified at the trial: He could not recall too much as to what transpired on the night of September 3d as he was “well intoxicated.” They went to a “love-in” at Blysian Park, got some wine, and got drunk. They left the “love-in,” went cruising around for a while, Jurado mentioned something about stopping and seeing a girl. At that moment, he was on the passenger side of the front seat, so he told the driver, a fellow named “Joe,” to go ahead, that Jurado would tell him where the girl lived. Then he “passed out,” ‘ ‘ flaked out, ” or “ knocked out. ’ ’
The next thing which he remembered was being arrested. He was seated on the passenger side of the front seat. No one was behind the wheel. The officer opened the door, put handcuffs ‘‘ on them, ’ ’ and took ‘‘ them ’ ’ to the police car.
Jurado had introduced him to “Joe” at the “love-in.” He had never met him before that. He was introduced only as [206]“Joe.” That day was the first and last time he has ever seen “Joe.” He first stated that “Joe” was driving when they left the “love-in,” later correcting it to his having been the driver when they left the “love-in.” He did not remember who drove the car to the location where he was arrested.
On cross-examination: The car belonged to his sister and he used it. Asked who else was in the car at the time of his arrest, he replied, “I think it was Eddie Guzman, and that fellow Joe.” The prosecutor then asked whether Richard Guzman, the brother of defendant Guzman, wasn’t then in the ear. He acknowledged that he was. He could not recall when they had picked up Richard Guzman. Next question, “Well, what happened—what happened to Joe? A. He was gone. I don’t know.. I was knocked out. I don’t remember nothing, you know. I don’t remember nothing from after we had changed places driving. ’ ’
He did recall Jurado saying he wanted to visit a girl. The cross-examination proceeded as follows: “Q. Do you remember who was driving then? A. I was driving—no, I wasn’t driving then. I was knocked out in the car. Q. You were knocked out? A. Yes, sir. Q. Well, could you hear him say that he wanted to visit the girl? A. Yes, sir. Q. Were you knocked out at that time? A. Yes, sir—No, I wasn’t knocked-out then. No. Q. When did you become knocked out? A. After I had let Joe drive the car. After I told him, ‘Well, take him to his girl friend’s house.’ Q. Then you became knocked out? A. That is when I fell out. Yes, sir. Q. Well, when did you do any drinking? A. At the love-in—before the love-in when we got there. Q. Well, how many house [sic] was it before- you did any drinking before you say you were knocked out? A. How many hours? Q. Yes. A. Well, we were at the love-in, and we were drinking then. After I got out of the love-in, we still had some wine and we finished it.” He was knocked out from around 8 :30 or 9 o ’clock until he was arrested.
He did not remember any television having been in the car. He did not know at any time that Jurado “was going to go in and take a TV set.” He did not hassle with any woman trying to hold his arm. Mrs. Montes’ testimony that she came over to the driver’s side of the car is not true. He did not remember any woman claiming that the television set was hers. Hé did not know Aguilar.
Thereupon, the court interrogated Morga: “The Court: You drove from the love-in? The Witness: Yes, sir. The Court: And you drove for an hour or so? The Witness: [207]Something like that, sir. When I got through—you know, Í couldn’t control the car too much any more, so I mentioned to one of the fellows that they would drive for awhile. The Court: You stopped? The Witness: Yes, sir. The Court: This fellow Joe then started to drive? The Witness: Yes, sir. The Court : And when was it that Mr. Jurado said something about visiting his friend, the girl? The Witness: I would say about half an hour later. The Court : And then you told the fellow who was driving to go to that friend’s house? The Witness : Yes, sir. ’ ’
Officer Nejera, called as a rebuttal witness on behalf of the People, testified: When he arrested the defendants, Morga “was behind the steering wheel with his head leaning on the window—on the left side of the door.” Guzman was in the back seat, directly behind Morga on the left-hand side. Another person, Richard Guzman, the brother of defendant Guzman, was on the right-hand side. Only these three persons were then in the car. Jurado was just exiting from Aguilar’s house, and when he raised his hand he had two $10 bills in it. In his opinion: Morga “might have been drinking, but he was not drunk”; Edward Guzman had been drinking and “was probably still drunk at the time”; Jurado did not appear to be under the influence of anything; and Richard Guzman was very drunk.
Evidence Sufficient
Defendant contends that the evidence is insufficient in that at most it proves defendant guilty only of the offense of being an accessory (Pen. Code, § 32), which is not a lesser and necessarily included offense to the principal crime of burglary (People v. Baker (1958) 164 Cal.App.2d 99, 108 [330 P.2d 240]). However, whether one has aided and abetted the commission of a crime is a question of fact for the jury to determine from the totality of the circumstances proved. (People v. Perryman (1967 ) 250 Cal.App.2d 813, 820 [58 Cal.Rptr. 921] (burglary); People v. George (1968) 259 Cal.App.2d 424, 429 [66 Cal.Rptr. 442] (robbery); People v. Fleming (1961) 191 Cal.App.2d 163, 169 [12 Cal.Rptr. 530] (assault with a deadly weapon).)
Factors which a finder of fact may consider in this determination “include presence at the crime, companionship and conduct of the accused before and after the offense.” (People v. Perryman, supra; People v. George, supra ; People v. Fleming, supra.) Possession of stolen property and flight with a companion committing a burglary may also be con[208]sidered. (People v. Tyler (1968) 258 Cal.App.2d 661, 667 [65 Cal.Rptr. 907].) One who drives another to the scene of the crime, serves as a lookout, and drives the getaway ear can he an aider and abettor. (Cf. People v. Ellhamer (1962) 199 Cal.App.2d 777, 781 [18 Cal.Rptr. 905] (robbery).) While such factors do not carry as strong an inference as in the case of a robbery, because burglary is completed with the entry, nevertheless these factors may be considered in determining whether one aided and abetted the commission of a burglary. (People v. Martin (1954) 128 Cal.App.2d 361, 364 [275 P.2d 635].)
The intent with which Morga acted must be considered from all the facts and 'circumstances of the case; if the inference that he acted with the necessary criminal intent is bottomed upon substantial evidence, the finding may not be disturbed on appeal. (People v. Tolstoy (1967) 250 Cal.App.2d 22, 25 [58 Cal.Rptr. 148] ; People v. Williams (1967) 252 Cal.App.2d 147, 154 [59 Cal.Rptr. 905].) His denial of any knowledge that Jurado was on a burglary mission does not constitute irrebuttable proof of such fact. “ ‘Few criminals would ever be convicted if their explanations were accepted as gospel truth.’ [Citation.] ” (People v. Carlson (1960) 177 Cal.App.2d 201, 204 [2 Cal.Rptr. 117].)
It cannot be said that the trial court had no substantial basis for finding Morga guilty upon the theory that he was an aider and an abettor. He drove the car from the “love-in” by his own admission. Mrs. Montes identified him as one kneeling outside the car, who jumped in as Jurado yelled, “Okay, let’s go.” She identified him as the driver of the getaway car, the one with whom she was struggling as the car drove off without lights. From this, it may be inferred that he was the one who drove the car to the scene of the burglary and acted as a lookout. He drove off, knowing that Jurado was running off with Mrs. Montes’ television set.
In addition, the court could have found from the evidence that both Morga and Jurado were falsely testifying about the mythical driver, “Joe,” thus indicating a consciousness- of guilt from their joint falsehood. (People v. Wayne (1953 ) 41 Cal.2d 814, 823 [264 P.2d 547] ; People v. Osslo (1958) 50 Cal.2d 75, 93 [323 P.2d 397]; People v. Wilkes (1955) 44 Cal.2d 679, 683 [284 P.2d 481].) It is significant that Jurado committed a slip of the tongue by first characterizing Guzman as “Joe Guzman.” Jurado testified that “Joe” had been with him and Guzman before going to the “love-in,” yet [209]Morga states that he was introduced to “Joe” at the “love-in.” Morga’s testimony concerning “Joe” in his cross-examination reveals his getting trapped and then changing his testimony. Significantly, Guzman never did mention “Joe.” Guzman testified that Morga drove at times at least, but that he did not drive and he did not see Jurado drive. Officer Nejera also testified that at the time of arrest, Morga was sitting behind the steering wheel. Morga admitted that the ear was his sifter’s and that he used it. From all of the foregoing evidence, the trial court was justified in doubting Morga’s credibility as evidenced" by its interrogation of Morga.
Officer Nejera testified that while Morga had been drinking, he was only under the influence of alcohol. By Morga’s own answers to the court’s questioning, he had driven for approximately one and one-half hours up to the time he was “knocked out.” Worthy of note is that he knew the approximate hour of 8:30 or 9 p.m. as being the time he was so “knocked out.” Morga’s credibility as a witness was thoroughly destroyed. Whether the state of intoxication is such as to render one incapable of entertaining the requisite knowledge or specific intent necessary to commit a crime is for the trier of fact to determine; and its finding upon conflicting evidence will not be disturbed on appeal. (People v. Wilson (1968) 261 Cal.App.2d 12, 20 [67 Cal.Rptr. 678] ; People v. Philbrook (1939) 34 Cal.App.2d 449, 450 [93 P.2d 577]; People v. Sutton (1936) 17 Cal.App.2d 561, 568 [62 P.2d 397].)
The fact that the evidence is circumstantial and is not as strong as in the average case does not warrant a reversal. (People v. Hillery (1965) 62 Cal.2d 692, 702-703 [44 Cal.Rptr. 30, 401 P.2d 382], cert, denied, 386 U.S. 938 [17 L.Ed. 2d 810, 87 S.Ct. 958]; People v. Redrick (1961) 55 Cal.2d 282, 289-290 [10 Cal.Rptr. 823,359 P.2d 255].)
No Prejudicial Error in Not Appointing Separate Counsel
Defendant claims that since both he and codefendant Guzman were too intoxicated to know anything about codefendant Jurado’s having committed a burglary, his placing the television set in the car, or of Mrs. Montes trying to prevent them from running off with it, it became self-evident, especially after Officer Nejera testified that Guzman was drunk but Morga “might have been drinking, but he was not drunk,” that effective cross-examination by a single counsel representing both was blocked. To attack the officer’s capacity to distinguish between degrees of intoxication would have done a [210]disservice to Guzman, who was acquitted by the court prior to argument by counsel. On the other hand, it was imperative to Morga’s defense to show that he was too drunk to form the requisite knowledge to make him an aider and abettor of Jurado’s burglary. There is plausibility for such an argument by a counsel under the enjoinment of People v. Feggans (1967) 67 Cal.2d 444, 447-448 [62 Cal.Rptr. 419, 432 P.2d 21], and in the light of People v. Chacon (1968) 69 Cal.2d 765, [73 Cal.Rptr. 10, 447 P.2d 106], and the decision of this court in People v. Baker (1968) 268 Cal.App.2d 254 [73 Cal.Rptr. 758], However, in view of the evidence which we have detailed at length above, we feel beyond a reasonable doubt that absent this error, if it be error, the court would have reached the result it did. Hence, there was no prejudice. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824].)
No Error in Revocation of Probation
One of the conditions of probation in case No. 320784 was that Morga. "obey all laws. ’ ’ Not only was he convicted of the felony in the instant case, but by his own testimony he was guilty of misdemeanor drunk driving (Veh. Code, §23102). The latter violation alone would have been sufficient to revoke probation. The order which the court made, however, was one redounding to defendant’s advantage. True, there was no formal arraignment for judgment, but when the court imposed a one-year county jail sentence and suspended it, the net effect was to drop the crime to a misdemeanor (Pen. Code, § 17; People v. Kelley (1958) 161 Cal.App.2d 215, 222 [326 P.2d 177]) and to restore defendant to probation without supervision for one year. Since a sentence may not be suspended except in conjunction with a grant of probation, the suspension of the sentence was tantamount to a grant of probation. (Oster v. Municipal Court (1955) 45 Cal.2d 134, 139 [287 P.2d 755] ; People v. Municipal Court (1956) 145 Cal.App.2d 767, 771 [303 P.2d 375].) Although it was possible to place defendant on probation up to three years (Pen. Code, § 1203a), it was for a one-year period only since the trial judge omitted expressly setting it for longer than one year. (People v. Rye (1956) 140 Cal.App.2d Supp. 962, 965 [296 P.2d 126].) More than one year having elapsed since the order in question was made on January 8, 1968, it may well be that the conviction itself now can be set aside upon defendant’s motion. (Pen. Code, § 1203.4; People v. Banks (1959) 53 Cal.2d 370, 388 [1 Cal.Rptr. 669, 348 P.2d 102].)
[211] Disposition
The judgment in ease No. A225037 and the order revoking probation in case No. 320784 are affirmed.
”We took him hack to the police ear. Advised him and the other two persons in the vehicle of his constitutional rights.”