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

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

RICHARD ALVIN PURDIE,

 Defendant and Appellant.

 G049913

 (Super. Ct. No. FSB1200522)

 O P I N I O N

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.
2

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.
3

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 
4

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.).
5

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.” 
6

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 
7

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.
8

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.

 

5 The face page of the reporter’s transcript lists Allen Phou as Brown’s attorney 

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.
9

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 
10

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, 
11

“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.)
12

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 
13

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 
14

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.