California, United States of America
The following excerpt is from People v. Rivera, 162 Cal.App.3d 141, 207 Cal.Rptr. 756 (Cal. App. 1984):
There can be no question here that in order to find appellant guilty, the jury must have found that he burgled a residence; that was the only offense charged. This conclusion does not violate the rule, as appellant contends, that there can be no implied finding of the degree of a crime when the trier of fact fails to specifically do so (People v. Thomas (1978) 84 Cal.App.3d [162 Cal.App.3d 148] 281, 148 Cal.Rptr. 532) because we are not dealing here with an implied finding of the degree of a crime; we are concerned with the implied finding of a fact,
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b. Section 460:
Appellant argues that because section 460 provides that burglaries of residences are first degree and all other burglaries are second degree, and because he was convicted of second degree burglary, he cannot have been convicted of burglary of a residence. He relies on similar reasoning in People v. Lee (1984) 150 Cal.App.3d 455, 197 Cal.Rptr. 766, where the court concluded that, where the prosecution stipulated that defendant was charged with second degree burglary, a finding of guilt by the trial court after submission of the matter on the preliminary hearing transcript precluded enhancement of defendant's sentence pursuant to section 667, subdivision (a) because the "least adjudicated elements" of second degree burglary do not include burglary of a residence.
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