I agree with the majority opinion’s affirmance of the guilt and penalty phase judgments, as well as its decision to vacate the judgment of death and remand this case to the trial court, both to permit reconsideration of the application for the modification of the death verdict, and for imposition of sentence on the burglary count. In particular, I concur in the majority’s reasoning that Penal Code section 1157 1 does not compel this court, on the facts of this case, to reduce the degree of defendant’s crime to second degree murder simply because the jury did not initially specify the degree of the crime.
I write separately, however, simply to suggest that the Legislature may wish to take a fresh look at the provisions of section 1157, particularly in view of the manner in which the section has been interpreted for several decades. From virtually the outset of the provision’s enactment, many cases have construed section 1157 as prescribing an inflexible rule, which often requires a court to reduce the degree of a crime in the face of clear and *803reliable evidence that the jury must have actually found the defendant guilty of the higher degree offense. Thus, for example, even where the jury’s verdict sustaining an allegation that the defendant was armed with a deadly weapon necessarily demonstrated that it intended to convict the defendant of first rather than second degree robbery (see People v. Doran (1972) 24 Cal.App.3d 316, 321-322 [100 Cal.Rptr. 886]; People v. De Arkland (1968) 262 Cal.App.2d 802, 818-819 [69 Cal.Rptr. 144]),2 this court, in People v. Beamon (1973) 8 Cal.3d 625, 629 [105 Cal.Rptr. 681, 504 P.2d 905], footnote 2, concluded that section 1157 prohibited a court from giving effect to that logical inference and disapproved the Court of Appeal decisions in Doran, supra, and De Arkland, supra, which had upheld first degree robbery convictions under such circumstances. In People v. McDonald (1984) 37 Cal.3d 351 [208 Cal.Rptr. 236, 690 P.2d 709, 46 A.L.R.4th 1011], this court similarly declined to find the jury impliedly decided the degree of the murder where it failed to expressly specify degree, even though it also sustained a robbery-murder special-circumstance allegation and was instructed not to address the special circumstance allegation unless it first found the defendant guilty of first degree murder. (Id. at pp. 379-383.)3
This rigid application of section 1157 is clearly contrary to our present approach in dealing with the somewhat analogous situation in v/hich a trial court improperly fails to instruct the jury on a lesser included offense. In such cases, we have held that a judgment can nonetheless be affirmed so long as we can determine that “the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.” (People v. Sedeno (1974) 10 Cal.3d 703, 721 [112 Cal.Rptr. 1, 518 P.2d 913], disapproved on another ground in People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12 [160 Cal.Rptr. 84, 603 P.2d 1]; see also People v. Garrison (1989) 47 Cal.3d 746, 789-791 [254 Cal.Rptr. *804257, 765 P.2d 419] [applying Sedeño analysis when trial court has failed to instruct on element of an offense].)
In light of Sedeno, supra, 10 Cal.3d 703, and its progeny, I think it is clear that this court would not interpret section 1157 in such a formalistic manner if we were approaching the issue today as a matter of first impression. We are not writing on a clean slate, however, because the judicial interpretation of section 1157 noted above has been in place for many years, and the Legislature has effectively acquiesced in that interpretation by its inaction. If the rigidity of section 1157 is to be modified, I believe at this point the initiative must appropriately come from the Legislature.
The unique confluence of factors in this case, including the fact that defense counsel fortuitously brought the jury’s inadvertent omission to the attention of the trial court before the penalty trial began, convinces me that the majority is correct in concluding that section 1157 does not require a reversal in this case. In light of today’s holding, however, we can be sure that, in the future, defense counsel will not act as the defense counsel did in this case. Because it appears at least questionable whether the settled interpretation of section 1157 truly reflects the Legislature’s actual intent, I think it would be advisable for the Legislature to reexamine the current language and prevailing interpretation of section 1157 and to make any modification in the provision which it deems appropriate.
Eagleson, J., and Kaufman, J., concurred.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.
All further statutory references are to the Penal Code.
Former section 211a stated in pertinent part: “All robbery which is perpetrated by torture or by a person being armed with a dangerous or deadly weapon, ... is robbery in the first degree. All other kinds of robbery are of the second degree.”
That a literal interpretation of section 1157 often results in anomalous consequences is apparent from the reluctance expressed by the justices of our intermediate appellate courts in applying the rule. Thus, Justice McDaniel averred that “[u]nfortunately, on this point, form triumphs over substance, and the law is traduced.” (People v. Johns (1983) 145 Cal.App.3d 281, 295 [193 Cal.Rptr. 182]; see also People v. Williams (1984) 157 Cal.App.3d 145, 153 [quoting Johns approvingly], 158 [Staniforth, Acting P. J., concurring “only under compulsion of Penal Code sections 1157 and 1192.”] [203 Cal.Rptr. 562].) In another case applying the prevailing strict interpretation of section 1157, Justice Ashby opined that “[t]his is another case in which we are required to exalt form over substance.” (People v. Thomas (1978) 84 Cal.App.3d 281, 285 [148 Cal.Rptr. 532] [Ashby, J„ conc.].)
Finally, a recent case involving the application of section 1157 drew two concurring opinions; one by Presiding Justice Lillie concurring “under the compulsion of section 1157” (Gray v. Superior Court (1989) 209 Cal.App.3d 342, 346), and another by Justice Woods, urging that McDonald, supra, 37 Cal.3d 351, be overruled. (Gray, supra, at p. 346.)