Preciado

In holding that the words “residential burglary” are sufficient to fix the degree of the offense, the majority has succumbed to the temptation to carve out its own narrow exception to Penal Code section 1157. I cannot agree.

The Legislature has specified that there must be an explicit fixing of the degree of an offense. My colleagues hold a descriptive finding which is the equivalent of that degree is sufficient. 1 I disagree, for the reasons set forth in my dissent in In re Andrew I. (1991) 230 Cal.App.3d 572, 583-585 [ 281 Cal.Rptr. 570 ].

People v. Beamon (1973) 8 Cal.3d 625 [ 105 Cal.Rptr. 681 , 504 P.2d 905 ] and People v. McDonald (1984) 37 Cal.3d 351 [ 208 Cal.Rptr. 236 , 690 P.2d 709 , 46 A.L.R.4th 1011 ] were consistent in refusing to draw inferences in the absence of specification of a degree. The import of those cases was that a factual finding is no substitute.

A petition for a rehearing was denied September 17, 1991, and appellant’s petition for review by the Supreme Court was denied. November 21, 1991.

I understand the majority’s desire to do so. Indeed, the Legislature may wish to rethink its position.

I concur fully in Justice Crosby’s well-reasoned opinion. I write separately because I also concurred in the majority opinion in In re Andrew I. (1991) 230 Cal.App.3d 572 [281 Cal.Rptr 570], Andrew I. might be read as stating that our prior opinion in In re Jacob M. (1987) 195 Cal.App.3d 58 [ 240 Cal.Rptr. 418 ] was wrongly decided. I agree with Justice Crosby that Jacob M. was correctly decided on its facts. (Lead opn., Ante, p. 1248.) The problem with Jacob M. is that it went too far, and contains language unnecessary to the result. Upon reflection, we might have been better served by including this observation in Andrew I., although such an addition would not have changed the result or the basic rationale of that opinion. Jacob M. can perhaps best be thought of as a sui generis case.

Ruben Felix Preciado has, it appears, selected a career. He was found guilty of first degree burglary with four similar prior convictions and sentenced to twenty-four years in prison. Defendant claims insufficient evidence supports the conviction or, failing that argument, it must be reduced to the second degree because the jury failed to specify the degree of the burglary. We think not.

I

Preciado left his fingerprint on a wristwatch box found in a burgled Fountain Valley condominium. The owner did not know him; the box, which held a watch the victim received as a gift 18 months earlier, had never left his home. As the Supreme Court stated in People v. Gardner (1969) 71 Cal.2d 843, 849 [ 79 Cal.Rptr. 743 , 457 P.2d 575 ], “Fingerprint evidence is the strongest evidence of identity, and is ordinarily sufficient alone to identify the defendant.” And it was here. (People v. Reza (1984) 152 Cal.App.3d 647, 656 [ 199 Cal.Rptr. 664 ].)

Preciado relies on Borum v. United States (D.C. Cir. 1967) 380 F.2d 595 . There, the court of appeals reversed a conviction for housebreaking even though four of defendant’s fingerprints were found on glass jars that had been emptied of a…