I dissent from that portion of the majority opinion entitled “No Beagle Error.”
Robbery, the accomplishment of theft by assault, reflects adversely against an individual’s honesty and veracity to the extent it is a larcenous crime. “[A] conviction for robbery is only partly relevant to credibility ....” (People v. Fries (1979) 24 Cal.3d 222, 229 [155 Cal.Rptr. 194, 594 P.2d 19].) The court must weigh the credibility factor against the probability that admission of such evidence will create a “substantial danger of undue prejudice ....” (Id., at p. 227.)
If we spread out all of the larcenous crimes in a spectrum as indicative of a propensity to lie, high on the list would be crimes of embezzlement, where the offender has violated a position of trust. (Pen. Code, §§ 503, 506.1) Forgery, where one passes a false document as true and genuine (§ 470), would be nearby, as would theft by false pretense. (§§ 484, 532.) Somewhere in the middle would be receiving stolen property. (§ 496.) Below that would be burglary (§ 459), which usually involves a surreptitious entry.2 Far down on the list, perhaps *284next to joyriding (§ 499b),3 would be robbery, which is neither a crime of stealth nor a breach of trust. The crime of robbery is heinous, but it is more forthright and less secretive—and therefore perhaps less indicative of lack of credibility—than most other crimes of theft.
It is recognized that the above analysis has not been made before. Its validity depends upon whether the Beagle4 element of whether a prior reflects adversely on the defendant’s honesty or veracity should be the same in all crimes of theft, or whether the perpetration of some crimes of theft indicates a greater propensity to lie on the part of the offender than others. It is likely that no empirical data exists to prove or disprove this, but it is also true that the Legislature reported no empirical studies to validate the enactment of Evidence Code section 788, which allows use of a prior felony conviction for impeachment. (See Sen. Com. on Judiciary com., 29B West’s Ann. Evid. Code (1966 ed.) § 788, p. 355.) In making this analysis, there is no suggestion that only crimes which involve a misrepresentation affect credibility. It is merely an observation that the crime of theft can be perpetrated in many ways and that some are more relevant to credibility than others. As stated in People v. Anjell (1979) 100 Cal.App.3d 189, 197 [160 Cal.Rptr. 669]: “the crime of robbery is assaultive as well as larcenous [citation], and preponderantly so in the perception of lay people sitting as jurors.” (Italics added.)
When a prior conviction is identical to the crime for which appellant is being tried, exclusion is mandated. (People v. Fries, supra, 24 Cal.3d 222; People v. Spearman, supra, 25 Cal.3d 107.) Exclusion is likewise warranted where, as here, a lay person might view the offenses as substantially similar to the offense charged, and the danger of confusion outweighs the probative value of the prior.
Often during voir dire of a jury, the question is put to the jurors as to whether they have ever been the victim of a crime. As any trial judge knows, almost invariably one or more of them report that “my house was robbed.” Further questioning establishes the elements of a second degree burglary, not robbery. The practice of terming a “burglary” a “robbery” is so common that Webster’s Third New International Dictionary (1961) at page 1964 gives as one of the definitions of “rob”: “to remove valuables without right from (a place) [such as] a safe.”
*285Those jurors in the instant case who equated the word “robbery” with “burglary” were prejudiced to the extent discussed in Fries and Spear-man. If there were any jurors sophisticated enough to distinguish between the two crimes, they also would react with a great deal of prejudice. The crime of robbery is so foul, so fearsome, so fraught with danger that any decent law abiding juror would experience revulsion. The urge to convict irrespective of weakness of proof would be great.
As was stated in People v. Rist (1976) 16 Cal.3d 211, 222 [127 Cal.Rptr. 457, 545 P.2d 833]: “... a recent conviction of a dissimilar crime grounded on a dishonest act would add weight in favor of admissibility, but a recent conviction of a similar, assaultive crime would add weight in favor of exclusion as the prejudicial effect would therefore be even greater.”
People v. Burdine (1979) 99 Cal.App.3d 442 [160 Cal.Rptr. 375] held that because of remoteness in time and the similarity of a prior robbery to the charged offense of burglary, evidence of a robbery offense offered for impeachment purposes “[c]learly .. . should have been excluded.” (Id., at p. 449.) Although Burdine was subjected to criticism in People v. Lassell (1980) 108 Cal.App.3d 720 [166 Cal.Rptr. 678], for a failure to balance the factors favoring admission against countervailing factors, the criticism is unjustified. In Burdine there was no evidence of the last of the four Beagle factors—the effect on the administration of justice if the defendant does not testify out of fear of prejudice caused by impeachment—because there was nothing in the record to suggest that the defendant would have testified had his Beagle motion been granted. This was the reason for affirming the trial court. The court expressly discussed the first Beagle factor—whether the prior convictions reflect adversely on defendant’s honesty or veracity. The second factor—remoteness—was also discussed as was the third factor—whether the prior was similar to the charged offense. In addition, the court expressly discussed weighing the factors: “In Beagle, the Supreme Court held that although Evidence Code section 788 authorizes the use of a prior felony conviction to impeach the credibility of a witness, a trial court must, when requested, exercise its discretion under Evidence Code section 352 and exclude this evidence if the probative value of the prior conviction is outweighed by other considerations, such as the risk of undue prejudice. [Citation.]” (People v. Burdine, supra, 99 Cal.App.3d at p. 448, italics added.)
*286The majority states “no court has, as yet, refused to allow the use of a robbery simply because it involves assaultive behavior as well as theft.” Bur dine criticized the use of a prior robbery in a burglary case. I know of no reported case since Beagle which holds that a robbery prior may be used for impeachment purposes. Because the probative value is so slight and the prejudice is so great, I cannot think of a fact situation in which it should be allowed. Contrary to the view in the concurring opinion, the above is not an attack on Evidence Code section 788. It is limited to a discussion of the need to use Evidence Code section 352 because the larcenous prior of robbery is so likely to be .unduly prejudicial.
The evidence in the instant case was weak—a single fingerprint of uncertain age. The alibi evidence was at least believable, as was the fact that the fingerprint could have been placed on the screen innocently because of the defendant’s occupation. The defendant’s testimony on the latter point was crucial because the defendant’s father was unacquainted with the residence and could offer no testimony as to whether the defendant had worked there. These points, in addition to the inference of guilt from a failure to testify so eloquently described in People v. Fries, supra, 24 Cal.3d at pages 228-229, makes the error reversible. (People v. Watson (1956) 46 Cal.2d 818, 837 [299 P.2d 243]; People v. Spearman, supra, 25 Cal.3d at pp. 118-119.)
The majority seems to take the view that the appellate court will' always defer to the trial court if the prior conviction is not remote except in cases where the prior is identical to the one charged. I do not feel that the simple fact that the trial court articulated a weighing process under Beagle should end our inquiry. We are duty bound to determine whether the trial court decision was within the bounds of reason. I conclude it was not.
Appellant’s petition for a hearing by the Supreme Court was denied April 22, 1982. Bird, C. J., Mosk, J., and Reynoso, J., were of the opinion that the petition should be granted.
All sectional references are to_the Penal Code unless otherwise specified.
The appropriate focus is on the elements of the offense itself. (People v. Spearman (1979) 25 Cal.3d 107, 114 [157 Cal.Rptr. 883, 599 P.2d 74].) Entry by stealth is not a requisite of burglary, so the normal focus is on the intent at time of entry, and if it is to commit theft, the prior may be used. Although the element of specific intent to commit theft is properly the focus on whether the prior may be used, it seems appropriate to assess the impact of stealth on a lay juror for the purpose of determining relevancy to credibility.
A misdemeanor, therefore not usable.
People v. Beagle (1972) 6 Cal.3d 441 [99 Cal.Rptr. 313, 492 P.2d 1].