In Re Andrew I.

*576 Opinion

A petition was filed in the Los Angeles County Superior Court seeking to declare Andrew I. a ward of the court alleging he committed a burglary on September 18, 1989. (Welf. & Inst. Code, § 602; Pen. Code, § 459.) The court sustained the petition. The case was then transferred to Orange County where Andrew lived. (Welf. & Inst. Code, § 750.) At the disposition hearing, the court found Andrew had committed a residential burglary, committed him to the California Youth Authority for six years and ordered him to pay restitution to the victims. The probation department was directed to make a recommendation to the Youth Authority as to the amount of restitution owed.

Andrew appeals, contending (1) the evidence fails to support the finding he committed a burglary; (2) the trial court failed to specifically find the degree of the offense or whether the burglary was a felony or misdemeanor; and (3) it was an abuse of discretion to commit him to the California Youth Authority. Amicus curiae joins in the first two arguments and further contends the lower court erred by leaving the determination of the amount of restitution to the probation department. We affirm but remand for…

Dissenting. I agree with the majority on three points. First, a finding the allegation in a pleading is true is insufficient to fix the degree of the offense, even where the petition alleges a burglary in the first degree. Second, sentencing a minor to the prescribed term for first degree burglary is not the equivalent of fixing the degree. (In re Jacob M. (1987) 195 Cal.App.3d 58, 63 [ 240 Cal.Rptr. 418 ].) Third, an appropriate statement at a dispositional hearing is sufficient to fix the degree. (In re Dorothy B. (1986) 182 Cal.App.3d 509, 516 [ 227 Cal.Rptr. 472 ].)

I part company with the majority where it concludes a statement by the court that a burglary is “residential” or of “an inhabited dwelling” is sufficient. The majority finds the use of a descriptive label satisfactory designation of the degree. However, as this division recognized in Jacob M., the Supreme Court has held to the contrary.

In particular, the court in People v. Beamon (1973) 8 Cal.3d 625, 629 , footnote 2 [ 105 Cal.Rptr. 681 , 504 P.2d 905 ], gave great deference to the specific statutory language in the complementary statutes, Penal Code sections 1157 and 1192. There, the jury found the defendant…

[Opinion certified for partial publication. [*] ]

OPINION

MOORE, J.

A petition was filed in the Los Angeles County Superior Court seeking to declare Andrew I. a ward of the court alleging he committed a burglary on September 18, 1989. (Welf. & Inst. Code, § 602; Pen. Code, § 459.) The court sustained the petition. The case was then transferred to Orange County where Andrew lived. (Welf. & Inst. Code, § 750.) At the disposition hearing, the court found Andrew had committed a residential burglary, committed him to the California Youth Authority for six years and ordered him to pay restitution to the victims. The probation department was directed to make a recommendation to the Youth Authority as to the amount of restitution owed.

Andrew appeals, contending (1) the evidence fails to support the finding he committed a burglary; (2) the trial court failed to specifically find the degree of the offense or whether the burglary was a felony or misdemeanor; and (3) it was an abuse of discretion to commit him to the California Youth Authority. Amicus curiae joins in the first two arguments and further contends the lower court erred by leaving the determination of the amount of…