“Defendant was charged in counts I and II of the information with Residential Burglary, in violation of Section 459 of the Penal Code, in that he unlawfully entered the inhabited dwelling and residence of each victim.”
How later courts described this case
- “Defendant was charged in counts I and II of the information with Residential Burglary, in violation of Section 459 of the Penal Code, in that he unlawfully entered the inhabited dwelling and residence of each victim.”
Written by the judges who cited it.
The opinion
SIMS, J.
I concur in all aspects of the majority opinion except for the discussion in part II concluding that “residential burglary” is the equivalent of first degree burglary. (But see Pen. Code, § 1170.95, subd. (c).)
It is unnecessary to reach that issue in this case because the trial court adequately found the defendant had burglarized an inhabited dwelling within the meaning of the first degree burglary statute, Penal Code section 460. *291 In a court trial, the degree of the offense must be fixed “before passing sentence.” (§ 1192; People v. Flores (1974) 12 Cal.3d 85, 94 [ 115 Cal.Rptr. 225 , 524 P.2d 353 ].) “Passing sentence” means such time as the court imposes sentence. (Flores, supra, at p. 93, fn. 6 .)
In this case, before imposing sentence at the sentencing hearing, the trial court stated: “Mr. Deay, you’ve been convicted of a felony violation of Penal Code section 459, Residential Burglary as charged in Count I and also convicted of a felony violation of Penal Code section 459, Residential Burglary as charged in Count II of the information on file herein.” Each cited count of the information expressly charged defendant had entered “an inhabited dwelling and residence.” The court’s remarks constitute an adequate finding that defendant burglarized inhabited dwellings. Since entry of an inhabited dwelling is the necessary criterion of first degree burglary (see People v. Brady (1987) 190 Cal.App.3d 124, 140 [ 235 Cal.Rptr. 248 ]), the court’s findings at the sentencing hearing lawfully fixed the degree of the burglaries at first degree. (See People v. Anaya (1986) 179 Cal.App.3d 828, 831-832 [ 225 Cal.Rptr. 51 ].)