A home was “inhabited” for purposes of Penal Code section 460 at the time of an open house because the owner was using the home as her residence and did not move out until the home sold. Appellant was found guilty by court trial of residential burglary (Pen. Code, §§ 459, 460, subd. (a)) and commercial burglary (Pen. Code, § 459). According to the evidence at trial, as to the residential burglary, appellant visited an open house of a residence listed for sale and stole jewelry. As to the commercial burglary, she pawned jewelry items that were reported stolen during an open house of a different residence listed for sale. When later contacted by investigating police, appellant stated she often went to open houses and looked through jewelry boxes but denied taking any jewelry. On appeal, appellant claimed that the court erred in finding her guilty of residential burglary because the property was open to the public for the commercial purpose of showing the home for sale, and was not a dwelling. Held: Affirmed. Burglary of an “inhabited dwelling” is first degree, or residential, burglary. “Inhabited” means currently being used for dwelling purposes, whether occupied or not. The owner’s possible intent to abandon it in the future does not alter its character. Here, the resident of the burglarized home testified that she had slept in the home the nights before and after the open house and had all her belongings there. She did not move out until she sold the house. Thus, although the resident’s house was for sale and she was not present during the open house, the house was inhabited.

Where a trial court’s statements at a bench trial indicate that its verdict may rest on a legally correct theory or a legally incorrect theory, the rule governing reversal in jury trials does not apply. In finding appellant guilty of the commercial burglary of the pawn shop, the trial court had to find she entered the shop with intent to commit theft or any felony. In its decision, it was apparent that the trial court relied on appellant’s receipt or sale of stolen property as the predicate offense. A necessary element of that offense is that appellant had actual knowledge that the property was stolen. The trial court remarked that appellant was guilty because she knew or reasonably should have known the jewelry was stolen. Appellant contended that on the basis of this remark, it is possible the trial court found her guilty based on the legally incorrect theory that she reasonably should have known the jewelry was stolen when she pawned it. With a jury trial, where a guilty verdict may rest on a legally correct theory or a legally incorrect theory, the conviction must be reversed unless the court can determine from the record that it rests on the correct theory. This rule has no application when the appellate court reviews a verdict returned by a trial court sitting without a jury. As a general rule, a trial court’s remarks cannot be used to show the trial court misapplied the law or erred in its reasoning. An exception to this rule is that the reviewing court may consider a judge’s statement when, taken as a whole, the statement discloses an incorrect concept of the relevant law, embodied not merely in secondary remarks but in the basic ruling. Here, the trial court’s erroneous remark was merely secondary comment. The record reflects that the trial court plainly determined from the evidence that appellant stole from both victims and shows that the judge also found that appellant knew the jewelry was stolen when she walked into the pawn shop. [Editor’s Note: Justice Irion dissented from the majority’s decision on this point.]