Filed 8/29/14 P. v. Purdie CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049913

         v.                                                            (Super. Ct. No. FSB1200522)

RICHARD ALVIN PURDIE,                                                  OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of San Bernardino County,
Annemarie G. Pace, Judge. Affirmed. Remanded for a new sentencing hearing.
                   Kurt David Hermansen, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina,
Brendon W. Marshall and Christopher Beesley Deputy Attorneys General, for Plaintiff
and Respondent.
               A jury convicted Richard Alvin Purdie of being a felon in possession of a
firearm (former Pen. Code, § 12021, subd. (a)(1) [now § 29800, subd. (a)(1), Stats. 2010
ch. 711, § 6, eff. Jan. 1, 2011]; count 2),1 first degree residential burglary (§§ 459, 460;
count 9), and receiving stolen property (§ 496; counts 10, 11, 12, 13). The trial court
declared a mistrial on counts 1 and 4 through 8.
               At a separate proceeding, the trial court found true allegations Purdie had
two prior violent or serious felony convictions under the “Three Strikes” law and section
667, subdivision (a)(1), and that he had served seven prior prison terms (§ 667.5, subd.
(a)(1)). At the sentencing hearing, the trial court denied Purdie’s request to strike his
prior serious or violent felony convictions for sentencing purposes (People v. Superior
Court (Romero) (1996) 13 Cal.4th 497 (Romero)), and imposed an indeterminate term of
25 years to life, plus a determinate term of 19 years.
               Purdie challenges the sufficiency of the evidence to prove he committed
first degree burglary as alleged in count 9. He also claims his attorney provided
ineffective assistance of counsel, the trial court failed to orally pronounce judgment on
the strike priors, and the abstract of judgment does not accurately reflect the trial court’s
imposition of sentence. We agree with the final two contentions.
               We affirm the convictions, and remand the matter for the trial court to enter
into its minutes the reasons for denying Purdie’s Romero motion, and for the clerk of the
San Bernardino Superior Court to correct the abstract of judgment to reflect the trial
court’s true findings on Purdie’s strike priors.
                                           FACTS
               In 2007, Robert Phelps and his wife purchased a home in Running Springs,
California. Phelps testified he purchased the home as a vacation property, and that “[w]e
(his family) are going up there for New Year’s. We go several times in the summer,


       1   All further statutory references are to the Penal Code unless otherwise indicated.

                                              2
maybe quarterly.” He also testified that beginning in April 2011, he started renting the
property “to church groups, youth groups, large families.” Phelps explained, “I’m the
property manager, as well as the owner . . . .” But regardless of what type of ownership
interest prompted his actions, Phelps made weekly visits to the home for the purpose of
maintenance, and he effected periodic home improvement projects.
              In October 2011, tenants gained access to the home by retrieving a key
from a lockbox. At the time, Phelps was overseeing the construction of a roof over a
deck at the home. He generally spent the day working at the Running Springs home, but
he returned to his main residence at night.
              On the morning of October 21, Phelps came to the property and noticed that
someone had pried open the lockbox, grabbed the key, entered the home, and stolen
several items, including a projection screen television, a laptop computer, flash drive, and
printer, a flat screen television, and various tools. While no one was staying in the
property at the time of the break-in, it had been rented the prior week.
              In November 2011, Purdie, who was then on parole, lived in a mobile home
in San Bernardino County. One day, the employees of an automobile repossession
company went to Purdie’s home to repossess his truck. The employees approached the
truck to verify that it was the subject of the repossession. When they did, Purdie came
out of his home carrying a shotgun. The employees fled and called 911.
              Several deputies from the San Bernardino County Sheriff’s Office,
including Deputy John Wilson, responded to the call. Wilson knocked on Purdie’s front
door, but received no response. He heard the sound of footsteps coming from inside and
decided to break a sliding glass door to gain entry. Once inside, Wilson saw Purdie
standing near the front door. Wilson ordered Purdie to go outside where other officers




                                              3
placed Purdie in handcuffs. Wilson then found Ashley Nicole Brown2 and a shotgun in
the bedroom. In front of Brown and Purdie, Wilson walked out of the mobile home, held
up the shotgun and “made a flippant comment, like: Who does this belong to?” Purdie
told Wilson the gun belonged to him and not Brown, and that he knew it was loaded.
              During a search of the mobile home, deputies discovered property that had
been stolen from Phelps’s home (count 13), as well as property belonging to Ronald
Fossett (count 10), Mark Posjena (count 11), and Daniel Ramirez (count 12). The
deputies found Purdie’s cell phone and a flash drive. A picture of Phelps’s truck was
found on the flash drive. The cell phone3 yielded several incriminating text messages.
One stated Purdie had “a 12-gauge shotgun” for sale. Other text messages sent during the
days immediately after the Phelps burglary said things like, “[h]ey homey, I’m at the
mansion with the projection screen TV.” And, “[g]ot projector. Got Vizio plus more.”
In fact, Purdie provided prices for items taken during the burglaries: “The projector sells
for [$1,299]; the Vizio, [$649]; the iMac, [$799]; the compressor, [$399]; and the radial
arm saw, [$449]. These are the selling prices from the websites.”


       2 Brown pled guilty to first degree burglary and admitted a prior prison term after
the presentation of the evidence, but before the jury returned its verdict. She was
sentenced to three years in prison.

       3 Purdie did not object to the introduction of cell phone evidence at trial and
raised no claim on appeal as to the legality of the search and seizure of his cell phone. In
June 2014, after briefing in this case, the United States Supreme Court decided Riley v.
California (2014) __U.S. __ [134 S.Ct. 2473], which held absent a specific exception to
the warrant requirement, a warrantless search of a person’s cell phone violates the Fourth
Amendment’s guarantee against unreasonable search and seizure. The record reveals
Purdie was on parole and well known to the deputies. Moreover, one of the deputies
confirmed Purdie and Brown’s identities through CLETS, which is a computer program
that provides driver’s license numbers, a physical description, and prior contacts with
police with a subjects first and last name and birth date. Thus, the record is sufficient to
conclude the deputies searched Purdie’s cell phone with knowledge he was on parole.
“[T]he Fourth Amendment does not prohibit a police officer from conducting a
suspicionless search of a parolee.” (Samson v. California 547 U.S. 843, 857.).

                                             4
                                      DISCUSSION
1. Sufficiency of the Evidence of First Degree Burglary (Count 9)
              In assessing a claim of insufficiency of the evidence, our task is to review
the entire record, in the light most favorable to the judgment, in order to determine
whether it discloses substantial evidence, evidence that is reasonable, credible, and of
solid value, such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.)
              Section 459 defines burglary as the entry of “any house . . . with intent to
commit grand or petit larceny or any felony.” Section 460 states in pertinent part:
“Every burglary of an inhabited dwelling house . . . is burglary of the first degree. [¶] (b)
All other kinds of burglary are of the second degree.” (§ 460, subds.(a), (b).) The term
“inhabited” is specifically defined as “currently being used for dwelling purposes,
whether occupied or not.” (§ 459.) The terms “residence” and “‘inhabited dwelling
house’” have been interpreted to have equivalent meanings. (People v. Rodriguez (2000)
77 Cal.App.4th 1101, 1107.)4
              In the context of the burglary statute, the word “‘occupied’ means that
persons are actually present in a dwelling.” (People v. Guthrie (1983) 144 Cal.App.3d
832, 840.) The word “inhabited” means the structure is “currently being used for
dwelling purposes” whether or not the residence is occupied. (§ 459.) Even if the owner
is temporarily absent, the dwelling is still inhabited. (Guthrie, at pp. 839-840.)
Consequently, habitation is not dependent on the occupant’s intention to use the structure
for habitation in the future. If the person uses the structure for habitation when the
burglary occurs, his or her possible intent to abandon the habitation in the future does not

       4  The trial court instructed the jury, in accordance with CALCRIM No. 1701, that
“[a] house is inhabited if someone uses it as a dwelling, whether or not someone is inside
at the time of the alleged entry[,]” and that “[a] house is not inhabited if the former
residents have moved out and do not intend to return, even if some personal property
remains inside.”

                                              5
alter its character as an inhabited dwelling. (People v. Villalobos (2006) 145
Cal.App.4th 310, 320.)
              Purdie claims the conviction on count 9 must be reversed because the
prosecution failed to prove beyond a reasonable doubt that he entered an inhabited
dwelling as required for first degree burglary. He relies on cases discussing the concepts
of dwelling and occupancy in cases where the property involved was a short-term rental.
The Attorney General primarily relies on People v. DeRouen (1995) 38 Cal.App.4th 86,
90-92 (DeRouen), overruled on other grounds in People v. Allen (1999) 21 Cal.4th 846,
864-866, and other cases to argue the Phelps’s property should be treated as a vacation
home, which is occupied until the owner no longer intends to return. While this case
does not fit neatly into either paradigm, we must presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence. (People v.
Rayford (1994) 9 Cal.4th 1, 23.) Viewed in that light, the evidence supports the jury’s
verdict.
              Various factors are relevant to the interpretation of the word “inhabited” for
purposes of the burglary statutes. The fact that a dwelling is not the regular residence of
its occupants is not dispositive. Vacation homes and second homes remain inhabited
even when they are used sporadically by their residents. (DeRouen, supra, 38
Cal.App.4th at pp. 90-92, overruled on other grounds in People v. Allen, supra, 21
Cal.4th at pp. 864-866.) Generally, “[A] house remains inhabited even if the burglary
occurs while the residents are away for an extended period of time.” (People v. Cardona
(1983) 142 Cal.App.3d at p. 483.) Thus, the “dispositive element is whether the person
with the possessory right to the house views the house as his dwelling.” (Id. at p. 484.)
              This principle was recently reaffirmed in People v. Burkett (2013) 220
Cal.App.4th 572 (Burkett). In Burkett, the property owner evicted a tenant to resume
occupancy of one home after a foreclosure forced his removal from another. (Id. at
pp. 575.) The tenant left the rental unit empty and retained the keys. (Ibid.) Although

                                             6
the landlord had the intent to occupy the rental a few days after the tenant left, he had not
yet turned on the utilities, or moved any personal property into the house when the
defendant and a cohort entered the home without permission and caused over $400 in
damage. (Id. at p. 576-577.)
              The appellate court determined the defendant’s conviction for first degree
burglary had to be modified to second degree because “none of the indicia [of habitation
were] present except for the self-declared intent of the owner to occupy the house in the
future.” (Burkett, supra, 220 Cal.App.4th at p. 582.) In Burkett, the tenant who had
residency removed all her belongings with no intent to return, and the owner, whose
intent to return was recent and based on unforeseen circumstances, had yet to assume any
form of occupancy. Thus, the crime was second degree burglary.
              Here, the Phelps’s property, which was both a short-term rental and a
vacation home, had all the indicia of habitation when Purdie entered without permission.
Phelps had turned on the utilities, and moved personal property into the house. He used
the home for vacations before the burglary, and intended to use it as such in the near
future. Phelps not only provided the home with the utilities and possessions suitable for
use by short-term residents, but also for the use of his own family. He maintained the
home, and made periodic home improvements.
              Purdie fails to persuade us that the periodic occupancy of the home by
people unrelated to owner, and paying for the privilege, should somehow render it
unoccupied under the burglary statues the moment the most recent renter decamps. No
case has so held and the argument is illogical. Especially, when as here, the owner
intends to use the home and periodically does so. Finally, there is no evidence that
Phelps’s ever permanently ceased to use their second home, and their intermittent
occupancy was with the express intent to return in the future. Consequently, substantial
evidence supports the first degree burglary conviction.



                                              7
              Because we conclude the evidence is sufficient to support the first degree
burglary conviction on count 9, we need not address Purdie’s related claims that he is
eligible for resentencing under the Three Strikes Reformation Act of 2012.
2. Ineffective Assistance of Counsel
              Purdie and Brown were tried at a joint trial. During cross-examination of
Wilson, Brown’s attorney, Stuart O’Melveny,5 asked Wilson what Purdie said when
Wilson inquired who the gun belonged to. During the sidebar discussion that followed
Purdie’s attorney, Allen Phou, stated, “I would like to lodge an objection to the statement
and the testimony regarding my client admitting to officer—Deputy Wilson about the
possession of the shotgun, and he knew it was loaded. [¶] This is a Miranda [v. Arizona
(1966) 384 U.S. 436] issue that was initially—I think that’s why it was never brought up,
and I never did an in limine motion because first, I never expected it, but I can see now
that the issue is now my client already invoked his right to Miranda. In the police
report—I’m not sure if the Court is aware—but I don’t think—we haven’t discussed
it . . . .”
              After a brief discussion with counsel, the court stated that it seemed as
though Purdie had been in custody when he made the statement, and then the court
observed, “Mr. O’Melveny, I wish you would have spoke up, before you sprung that on
everybody.” Phou moved for a mistrial, stating that neither the prosecutor, nor
O’Melveny, had never indicated any intention to introduce the statement, and the
introduction of Purdie’s statement at trial violated his client’s constitutional rights. The
trial court then adjourned proceedings for the day.

          The face page of the reporter’s transcript lists Allen Phou as Brown’s attorney
          5
and Stuart O’Melveny as Purdie’s attorney. However, the transcript reflects O’Melveny
was cross-examining Wilson about Purdie’s statements, and that the sole objection to
Wilson’s response was made by Phou on behalf of his client. Despite the discrepancy
between the face page of the reporter’s transcript and the body of the reporter’s transcript,
the parties agree Brown’s attorney sought to introduce Purdie’s admission. Because the
party’s view of the record is logical, we accept their representation of events.

                                              8
              The following morning, the trial court conducted an Evidence Code
section 402 hearing outside the presence of the jury. At the conclusion of the hearing,
and after listening to the arguments of counsel, the court decided to deny Phou’s mistrial
motion. The trial court also decided to admonish the jury, directing the panel “[t]o
disregard the testimony of Deputy Wilson regarding any statements Mr. Purdie said to
him and do not consider those statements in any way. Those statements were not
admissible under the law and cannot be considered by you for any purpose.”
              Purdie argues Phou’s failure to ensure the exclusion of his admission
amounts to prejudicial ineffective assistance of counsel. We disagree.
              “‘In order to demonstrate ineffective assistance of counsel, a defendant
must first show counsel’s performance was “deficient . . . .” “Second, he must also show
prejudice flowing from counsel’s performance or lack thereof. [Citations.] Prejudice is
shown when there is a ‘“reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” [Citations.]’
[Citation.]” (People v. Goldman (2014) 225 Cal.App.4th 950, 957.)
              Generally, “[i]t is not necessary for us to consider the performance prong of
the test before considering whether the defendant suffered prejudice as a result of
counsel’s alleged deficiencies. [Citation.] ‘If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, . . . that course should be followed.’
[Citation.]” (People v. Goldman, supra, 225 Cal.App.4th at pp. 957-958.) That is the
course we follow here because there was no prejudice.
              As the Attorney General asserts, there was overwhelming evidence of
Purdie’s gun possession without his admission of ownership. The substantial evidence is
the fact he used a shotgun to scare the employees who came to repossess his car, and the
gun was found in Purdie’s residence. The week before he was arrested Purdie also sent a
text message about selling a 12-gauge shotgun. Consequently, while Phou’s failure to

                                              9
properly address the Miranda issue may have been below an objectively reasonable
standard of performance, there was no prejudice to Purdie, and hence no justification for
a reversal of the judgment.
3. Sentencing Error
              Purdie contends the trial court failed to orally pronounce judgment on the
strike prior allegations, and that the abstract of judgment does not reflect the trial court’s
true findings on those allegations. The Attorney General agrees the court failed to orally
pronounce judgment on the strike priors, but contends the trial court’s denial of Purdie’s
Romero motion and the sentence imposed constitutes an implied finding on the truth of
the strike priors. In addition, the Attorney General points out that under the Three Strikes
law the trial court had no authority to impose a lesser sentence after denying the Romero
motion.
              At the court trial on the truth of the prior convictions, the prosecution
introduced several documents and the testimony of foundational witnesses that attested to
the truth of Purdie’s prior convictions. In addition to other findings on the truth of
various sentencing enhancement allegations, the trial court expressly found true the
allegation Purdie had suffered two prior convictions for first degree burglary, the alleged
“strike” priors.
              After reviewing the evidence and making its findings, the trial court asked
the parties if they wanted a probation report, although the court stated, “I don’t know that
we need it. The prison system is well aware of Mr. Purdie. The Court already knows
what it’s going to do essentially, having reviewed Mr. Purdie’s record.” The district
attorney indicated that restitution was an issue and requested a probation report. The trial
court then selected a date for the sentencing hearing, at which time it was contemplated
that Purdie would move for a new trial and file a Romero motion.
              Several months later, at the sentencing hearing, the trial court denied
Purdie’s motion for a new trial and declined to strike Purdie’s prior convictions, stating,

                                              10
“I think that given [Purdie’s] lengthy criminal history and conduct in this case, that he
clearly falls under the spirit of the [T]hree [S]trikes law . . . .” The trial court asked if
there was any legal cause why judgment should not be pronounced, and neither party
objected. Then the trial court imposed a sentence consistent with having found true the
allegations Purdie suffered two or more “strike” priors. However, the trial court did not
orally pronounce judgment on the strike priors.
               Relying on In re Candelario (1970) 3 Cal.3d 702, 706 (Candelario) and
People v. Williams (1980) 103 Cal.App.3d 507, 518-519 (Williams), Purdie claims the
trial court’s failure to orally pronounce judgment on the strike priors, and the fact that the
abstract of judgment does not reflect the trial court’s true finding on those priors, equals a
silent record from which we may infer the trial court intended an act of leniency.
Furthermore, he contends the trial court failed to provide a statement of reasons for
denying his Romero motion, in violation of section 1385. Purdie insists a new sentencing
hearing is required. Again we disagree.
               Candelario is distinguishable. There, the defendant admitted a prior
conviction, but the trial court entered judgment on the substantive offense alone and
committed defendant to prison. (Candelario, supra, 3Cal.3d at pp. 704-705.) Over a
month later, the trial court amended the abstract of judgment to add the prior conviction,
thus doubling the minimum term of defendant’s indeterminate sentence. (Id. at pp. 704-
706.)
               In concluding that the attempted modification was not permitted, the
Supreme Court said: “Reference to the prior conviction must be included in the
pronouncement of judgment for if the record is silent in that regard, in the absence of
evidence to the contrary, it may be inferred that the omission was an act of leniency by
the trial court. In such circumstances the silence operates as a finding that the prior
conviction was not true. [Citation.]” (Candelario, supra, 3 Cal.3d at p. 706, fn. omitted;
see also People v. Mesa (1975) 14 Cal.3d 466, 470-472.)

                                               11
              Here, the trial court not only found the strike priors true, but also stated
Purdie was the classic repeat offender contemplated by the Three Strikes law. Other than
the failure to follow a procedural rule, the trial court did not indicate any leniency toward
Purdie. In addition, the sentence imposed is a full third strike sentence.
              Williams is also inapt. There the defendant pled guilty to robbery and
admitted a prior prison term. As part of a plea bargain, two other alleged priors and
separate robbery and burglary charges were dismissed. The trial court failed to ask the
defendant if he suffered the prior prison term, which violated former section 1025.
(Williams, supra, 103 Cal.App.3d at pp. 512-515.)
              On appeal, the defendant argued the trial court’s failure to specifically
sentence him to prison for his prior felony conviction at the time of the oral
pronouncement of judgment necessitated striking the prior, citing Candelario. (Williams,
supra, 103 Cal.App.3d at p. 516.) After discussing Candelario and People v. Mesa
(1980) 103 Cal.App.3d 507, 516-518 (Mesa), and respondent’s argument that Candelario
and Mesa were inapplicable because they were filed during the years California followed
indeterminate sentencing, the Williams court concluded, “We agree with respondent that
extension of the Candelario rationale to DSL [determinate sentencing law] cases would
undermine the legislative requirement of a statement of reasons on the record for the
striking of Penal Code section 667.5 enhancement. [Ciation.] One clear purpose of this
requirement is to permit appellate review (and possible reversal for abuse of discretion)
of an order striking an enhancement.” (Williams, supra, 103 Cal.App.3d at p. 516.)
              Purdie’s reliance on Williams is puzzling. He argues the trial court’s failure
to pronounce judgment and record its finding in the minutes indicates leniency, but the
Williams court also observed, “Even where a trial court expressly states that it intends to
strike the prior as an act of leniency, it must state supporting reasons on the record. Since
an express showing of lenient intent is not enough without more to uphold the striking of



                                             12
an enhancement, then it follows that an inference of lenient intent is not enough to
warrant a striking of the prior.” (Williams, supra, 103 Cal.App.3d at p. 519.)
              Furthermore, section 1200 provides: “When the defendant appears for
judgment he must be informed by the Court, or by the Clerk, under its direction, of the
nature of the charge against him and of his plea, and the verdict, if any thereon, and must
be asked whether he has any legal cause to show why judgment should not be
pronounced against him.” Traditionally, the defendant relieves the court of the
requirements of section 1200 and the formalities required by waiving formal arraignment
for judgment. Phou did not object on the grounds Purdie asserts now. Moreover, the
California Supreme Court has deemed the record not “silent” when, as here, the oral
pronouncement of judgment “speaks” to impliedly affirm the truth of an enhancement
allegation. (See People v. Clair (1992) 2 Cal.4th 629, 691, fn. 17; People v. Chambers
(2002) 104 Cal.App.4th 1047, 1050-1051.)
              In short, we are not confronted with a silent record that indicates leniency.
To the contrary, the trial court here imposed sentence based upon Three Strikes
sentencing rules after expressly finding that Purdie presented a classic Three Strikes case.
There is no miscarriage of justice and a remand soley for the purpose of permitting to
make an express finding would be an exaltation of form over substance. However, there
is another reason to remand this case for resentencing, thus the trial court has the
opportunity to make express findings and properly record those findings in the record.
              Here, the trial court also failed to give a statement of reasons for denying
Purdie’s Romero motion. Although the court stated adequate reasons for its decision
section 1385, subdivision (a), provides in relevant part: “The judge or magistrate may,
either of his or her own motion or upon the application of the prosecuting attorney, and in
furtherance of justice, order an action to be dismissed. The reasons for the dismissal
must be set forth in an order entered upon the minutes.” Without a statement of reasons



                                             13
in the minutes, there is no effective order under section 1385. (Romero, supra, 13 Cal.4th
at p. 524; People v. Orin (1975) 13 Cal.3d 937, 944.)
              Consequently, as in Romero, we remand the matter for the trial court to set
forth in writing in the minutes its reasons for denying Purdie’s motion to strike. Once
completed, the written statement of reasons will be subject to appellate review. (People
v. Superior Court (Pipkin) (1997) 59 Cal.App.4th 1470, 1478.) In addition, the trial court
is directed to make express findings on the truth of Purdie’s prior convictions and record
them in the minutes.
                                     DISPOSITION
              The judgment is affirmed. The matter remanded for the trial court to state
its reasons for denying Purdie’s Romero motion in the minutes, and to make and record
express findings on the truth of his prior convictions. The clerk of the San Bernardino
Superior court is directed to record these findings and correct the abstract of judgment
accordingly. The new abstract of judgment shall be forwarded to the Department of
Corrections and Rehabilitation.




                                                 THOMPSON, J.

WE CONCUR:



O’LEARY, P. J.



RYLAARSDAM, J.




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