What is the test for a jury to find a defendant guilty of burglary of a residence?

California, United States of America


The following excerpt is from People v. Atkins, 210 Cal.App.3d 47, 258 Cal.Rptr. 113 (Cal. App. 1989):

In the case at bar, we do not need to look beyond the verdict form to conclude that the jury found appellant guilty of burglary of a residence, which by definition is first degree burglary. Further, it is clear from the information and instructions given the jury 2 as well as defense counsel's [210 Cal.App.3d 53] arguments, 3 that there was no dispute that the burglary was of a residence; the only dispute was whether the defendant committed it. Therefore, the purpose of the language in the verdict that defendant was guilty of "burglary of a residence" was to fix the degree of the crime. Inasmuch as the rationale for Penal Code section 1157 is to protect the defendant from the risk that the degree of the crime could be increased after the judgment (People v. Goodwin, supra, 202 Cal.App.3d at p. 947, 249 Cal.Rptr. 430), there was here no such risk. We conclude that the verdict reflects that the jury determined the burglary to be of the first degree.

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