dissenting.
I cannot agree that a reasonable basis test is appropriate for resolution of this appeal. The jury’s verdict in this case was, as the majority notes, ambiguous. This ambiguity did not go to the finding of guilt but went rather to the factual basis upon which the specific offense was grounded. The majority opinion details the three possible factual bases for the guilty verdict. The second of these advanced is that the petty larceny was with respect to the returned items only and that Hagberg was not guilty with respect to the missing items. If that is the factual basis upon which the jury convicted, Hagberg cannot be required to pay any restitution for the victim has incurred no actual loss as to those items. By returning these items of jewelry, Hag-berg has compensated Gregoire for her actual loss.
The majority concludes that since the jury might have based its judgment on other factual premises the superior court therefore had a reasonable basis for ordering restitution. In my view such a conclusion does not square with the doctrines of presumption of innocence and the prosecution’s burden of proving guilt beyond a reasonable doubt. Here the ambiguous verdict creates a reasonable doubt whether or not the larceny for which Hagberg was convicted involved the nonreturned jewelry. When a verdict is ambiguous as to degree of crime committed, it has been held that the lesser degree is to be imposed.1 Given the constitutional protections of the presumption of innocence and the requirement of proof beyond a reasonable doubt, I am of the view that the sentencing court in the instant case was precluded from indulging in speculation as to the meaning of the ambiguous verdict.
Verdicts in criminal cases should be certain and devoid of ambiguity.2 Here the jury unambiguously found Hagberg guilty of the crime of petty larceny. The latent ambiguity goes only to the factual basis of the conviction and has relevance only as to the superior court’s authority to order restitution. While the judgment of conviction is not invalid I would hold that the ambiguity concerning the factual basis for the jury’s verdict precluded imposition of a restitution requirement by the superior court.
. See In re Harris, 67 Cal.2d 876, 64 Cal.Rptr. 319, 434 P.2d 615, 619 n. 6 (1967) (Cal.Penal Code § 1157 provides that a failure to determine degree shall be deemed to be lesser); People v. Smith, 14 Mich.App. 502, 165 N.W.2d 640, 642 (1968) (ambiguity as to verdict of “assault with intent” held to describe simple assault and not “assault with intent to rape”).
. Yeager v. People, 170 Colo. 405, 462 P.2d 487 (1969); Davis v. State, 273 N.C. 533, 160 S.E.2d 697 (N.C.1968).