P. v. Silva
Filed 1/18/13 P.
v. Silva CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD
APPELLATE DISTRICT
(Placer)
----
THE
PEOPLE,
Plaintiff and Respondent,
v.
JOE
GUALBERTO SILVA,
Defendant and
Appellant.
C066973
(Super. Ct. No. 62086512)
Following
the theft of a computer from his workplace, defendant Joe Gualberto Silva was
charged by information with second degree
commercial burglary and grand theft.
(Pen. Code, §§ 459, 487, subd. (a).)
guilty of both charged offenses.
Sentenced to two years in state prison and ordered to pay restitution,
defendant appeals, arguing the court erred in allowing the trial to proceed in
his absence, ineffective assistance of counsel,
defendant’s sentence; in all other respects, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In
December 2008 an employee of Capital Retail Solutions (Capital Retail), a
software distributor, discovered a computer was missing. Subsequently, defendant was charged with second
degree commercial burglary and grand theft.
Defendant entered not guilty pleas.
A jury trial followed. The
following evidence was introduced at trial.
Capital
Retail received a shipment of 15 Dell computers from the manufacturer on December 9, 2008. The normal company
procedure is to log the serial numbers of the computers into inventory upon
receipt. However, on this occasion the
computers were just counted, with the serial numbers to be logged in the
following day.
Capital
Retail employees may arrive prior to the company’s 8:00 a.m. opening
only with authorization. Each employee,
including defendant, possesses the pass code to disarm the alarm system.
Employee
Kyle Oden arrived at the company at 8:30 a.m. on December 10, 2008. Oden discovered the
shrink-wrap had been removed from the pallet containing the shipment of Dell
computers. He discovered only 14 new
Dell computers on the pallet and an empty box in place of one of the computers. Oden reported the missing computer to the two
other employees in the office: Debra
Owens and defendant.
That
morning, when Owens arrived at work around 8:00 a.m., she found defendant
alone in the office. His presence
surprised Owens, since defendant’s work hours were 8:00 a.m. to 4:00 p.m. Access records later
revealed the alarm had been disarmed at 6:34 that morning.
Defendant
wrote on his time card that he began work at 7:30. That day, defendant left work at 1:30,
well before his scheduled leave time.
The
co-owner of Capital Retail, Kimberly Souza, arrived that day between 10:00 a.m. and 11:00
a.m.
Defendant appeared uneasy about something, but Souza thought it might
have been because he locked his keys in his car. After learning of the missing computer, Souza
asked all employees for permission to search their vehicles. Souza had a “strong suspicion†that defendant
was responsible, based on his early arrival.
Defendant
became defensive when asked for permission to search his car and pretended the
button that opened the trunk would not work.
Souza noticed defendant was pretending to push the button and told him
to “just press the button.†Defendant
responded, “Don’t you think I know how to work my own car?†Souza, who thought defendant was becoming
volatile and was somewhat frightened by the exchange, contacted the
police. Defendant drove away.
Officer
Joe Seawell arrived at the business and interviewed Souza and Owens. The following day, Seawell contacted
defendant by telephone. Defendant told
the officer that the company owed him money for hours and mileage. Defendant also stated Souza accused him of
stealing a computer; defendant denied stealing it. According to defendant, Souza searched his
car trunk and did not find anything.
When Seawell asked defendant why he had not opened the trunk, defendant
stated he had.
A
day or two after the theft, William Souza, president of Capital Retail, spoke
with defendant by telephone. Defendant
admitted he took the computer because he had financial problems. Defendant told William Souza he had already
sold the computer and spent the money.
Defendant did not have permission to take or sell the computer. William Souza estimated the value of the
computer at $700.
Near
the end of his shift on December 11, 2008, Seawell asked
another officer, Neal Costa, to go to Capital Retail and attempt to arrest
defendant. Costa placed defendant under
arrest and transported him to the county jail.
Costa interviewed defendant in the jail’s parking lot. After Costa read defendant’s
The
jury found defendant guilty of second degree commercial burglary and grand
theft. The trial court denied
defendant’s motion for a new trial. The
court sentenced defendant to the middle term of two years for commercial burglary. Defendant filed a timely notice of appeal.
DISCUSSION
Defendant’s Absence
Defendant
failed to appear at trial after his car broke down. Defendant argues the court erred in allowing
the trial to proceed in his absence in violation of his rights under the Sixth
and Fourteenth Amendments to the United States Constitution.
Background
On
June 23, 2010, the second day of trial, defendant failed to appear. Trial counsel told the court, out of the
jury’s presence, that defendant was in Yolo County trying
to get his car repaired.
The
trial court found defendant voluntarily absent from the trial: “Well, at this time the first order of
business is this: Is the matter going to
continue? And, of course,
[section] 1043[, subdivision] (b) of the Penal Code provides for the trial
to continue when an individual is voluntarily absent. Whether his car breakdown is a voluntary
absence is a matter that would be subject to some discussion and disagreement. [¶] I
am going to find that he is in fact voluntarily absent, so the matter will
proceed as far as argument and instructions and deliberations. [¶] I
propose to explain to the jury [defendant’s] absence by reason of what’s been
given to us: That he’s got car
problems. However, the Penal Code allows
the Court to continue with the trial and that no adverse interpretation of
[defendant’s] absence can be maintained by the members of the jury. Agreed?â€
Defense counsel responded, “I have expressed [sic] consent from [defendant] to proceed in his absence.â€
Before
the jury returned, the court continued:
“. . . I will explain to the jury the reasons for the delay today. . .
. And then I will explain to them that
the Court is authorized -- and, in fact, [defendant] has authorized these
proceedings in his absence due to his vehicular breakdown and they are to draw
no conclusion from his failure to be here.â€
The
court instructed the jury: “Ladies and
gentlemen, you have probably noticed that [defendant] is not present with us
this afternoon. We are informed that his
vehicle has broken down and he is attempting to get that repaired and is on his
way here. There is no reason not to
accept that as a reasonable explanation for his nonappearance. [¶]
The Penal Code allows the trial to continue under this circumstance in
his absence. As a matter of fact, his
attorney has indicated to the Court that he has expressly authorized the
continuance of the trial, arguments and instruction and deliberations, in his
absence. You are directed at this time
to draw no adverse inference from [defendant’s] non-presence.â€
In
conjunction with his motion for a new trial, defendant provided declarations
explaining the circumstances of his absence.
Defendant’s car suffered two flat tires, and he was unable to put on his
spare tire. As he walked to a nearby
town, a passerby gave him some tire repair product and defendant attempted to
fix the tires. He then drove slowly to
the next town.
Defendant
had contacted defense counsel by
phone during his ordeal. At around 1:30
p.m., the time his trial was to resume, defendant again called his
attorney. Defense counsel asked
defendant if he should “continue†the trial.
Defendant agreed counsel could continue the trial, but he believed that
meant defense counsel could request a continuance, not that the trial would
continue in his absence. Ultimately, the
trial court found good cause to recall the warrant and reinstate bail.
Discussion
A
criminal defendant has a federal and state constitutional right to be present
at trial. (People v. Hines (1997) 15 Cal.4th 997, 1038-1039.) In addition, a defendant has a statutory
right to be present at trial. (§§ 977,
1043.)
Section
1043, subdivision (b)(2) permits a court, in a noncapital felony case, to proceed
with trial in the defendant’s absence provided the absence is voluntary. In addition, a defendant can waive personal
appearance at trial and allow the trial to proceed in his absence. (People
v. Edwards (1991) 54 Cal.3d 787, 809.)
A
trial court abuses its discretion under section 1043 if it proceeds with the
trial absent an adequate showing that the defendant’s absence is knowing and
voluntary. (People v. Disandro (2010) 186 Cal.App.4th 593, 602.) “A crucial question must always be, ‘Why is
the defendant absent?’ This question can
rarely be answered at the time the court must determine whether the trial
should proceed. Consequently, in
reviewing a challenge to the continuation of a trial pursuant to Penal Code
section 1043, subdivision (b)(2), it must be recognized that the
court’s initial determination is not conclusive in that, upon the subsequent
appearance of the defendant, additional information may be presented which
either affirms the initial decision of the court or demands that defendant be
given a new trial. It is the totality of
the record that must be reviewed in determining whether the absence was
voluntary.†(People v. Connolly (1973) 36 Cal.App.3d 379, 384-385 (
On
appeal, we must determine, on the whole record, whether defendant’s absence was
knowing and voluntary. We balance
defendant’s constitutional and statutory right to be present against society’s
interest in the orderly process of the court. (Connolly, supra, 36
Cal.App.3d at pp. 384-385.)
Here,
the trial court determined defendant was voluntarily absent under
section 1043 after learning defendant’s car had broken down. In addition, defense counsel stated he had
“expressed [sic] consent from
[defendant] to proceed in his absence.â€
Defendant
argues his predicament in missing his trial mirrors that of the defendant in
1990) 915 F.2d 69 (Mackey), in which
the Second Circuit Court of Appeals found the continuation of trial in the
defendant’s absence constituted prejudicial error. In Mackey,
on the evening prior to the first day of his retrial the defendant notified his
attorney he was having difficulty obtaining a ride to court. Counsel informed the court, and the court
delayed trial until 11:00 a.m. After a
recess for lunch, the defendant had still not arrived; counsel requested an
adjournment after explaining the defendant’s problems in obtaining
transportation to court, and the prosecution agreed with the request. The court then concluded: “ ‘The animals do not run the zoo. That’s the simple answer. So then, your motion is denied and we will
proceed.’ †The defendant missed jury
selection and all of the testimony of the government’s first witness, as well
as a portion of the testimony of the second witness. (Id. at
pp. 70-71.)
The
district court found the defendant voluntarily waived his right to be present
and the reasons given for his failure to appear were insufficient. (Mackey,
supra, 915 F.2d at pp.
71-72.) The Second Circuit disagreed,
finding defense counsel provided the court with a plausible, verifiable, and
essentially unrebutted explanation for the defendant’s absence. The defendant’s absence fell short of being
knowing, voluntary, and without sound excuse.
The court noted sound reason for absence had been found when the
defendant did not know the correct starting date and when the defendant was
detained in police custody. (
Second Circuit concluded, because the defendant was absent during both jury selection
and the testimony of potential government witnesses. In addition, the defendant’s prior trial had
ended in a mistrial and his acquittal on two of the three charges for which he
was indicted. Therefore, the court
reversed the judgment. (
Defendant
contends that, as in Mackey, his
absence was due to a lack of transportation, circumstances outside of his
control. Therefore, the court erred in
finding his absence voluntary.
Here,
however, unlike in Mackey,
that “I have expressed [sic] consent
from [defendant] to proceed in his absence.â€
No such waiver appears in Mackey.
In
his declaration in support of his motion for a new trial, defendant explained
that he misunderstood what his attorney was asking him. Instead, defendant believed he was agreeing
to a continuance, not a continuation of the trial. According to defendant, we must take into
account subsequent “additional information†that may be presented once a
defendant is again before the court. (
We
agree that we review the totality of the record in determining whether a
defendant’s absence is voluntary. (
cannot find the court’s determination that defendant orally waived his presence
to be unreasonable. Defense counsel
conveyed what he believed his client told him, that defendant had agreed to the
trial’s continuing without him.
However,
section 977 requires a waiver of the right to be present to be in writing and
executed in open court. But an oral
waiver does not constitute reversible error in all cases and may be found
nonprejudicial depending on the circumstances.
The burden is on the defendant to demonstrate that his absence
prejudiced his case or denied him a fair trial.
(People v. Garrison (1989) 47
Cal.3d 746, 782-783.)
Here,
defendant was absent during closing arguments, the charging of the jury, and
the reading of the verdict. Defendant
argues his absence prevented him from assisting his attorney during closing
argument and tainted the jury’s view of the evidence produced at trial.
According
to defendant, defense counsel’s closing argument harmed his defense. He faults defense counsel for telling the
jury he was “not offering any explanation for why [defendant] admitted to . . .
stealing the computer.†Defendant notes
other statements by defense counsel during closing that he claims were highly critical
of him. Defendant reasons that had he
been present, it was highly unlikely counsel would have felt comfortable making
such statements.
Defense
counsel, faced with defendant’s admissions that he stole the computer,
attempted to defuse the impact of those statements. To counter the confession, defense counsel
argued defendant made false confessions because he had problems telling the
truth. These were not attacks on defendant’s
character, but an effort to convince the jury defendant was not guilty.
Defendant
also argues his absence “induced the jury—consciously or unconsciously—to
disregard the evidence that [defendant] did not form the intent to steal the
computer prior to entry.†However, all
of the evidence defendant highlights was before the jury. In a similar vein, defendant argues there is
a “reasonable possibility†the jury inferred from his absence that he was
acknowledging guilt, especially since the jury was specifically instructed that
it could consider flight as evidence of guilt.
These
arguments ignore the court’s specific instruction given in conjunction with
defendant’s absence. The trial court
instructed the jury that defendant’s absence stemmed from car trouble and they
were to draw no negative inferences from his absence. We presume the jury understood and was able
to abide by the court’s instructions. (
1090, 1095.) Given the record before us,
defendant’s absence during closing argument, jury instructions, and the reading
of the verdict neither prejudiced him nor deprived him of a fair trial.
Ineffective Assistance of Counsel
Defendant
argues defense counsel performed ineffectively in failing to use the
legislative change in the threshold between misdemeanor petty theft and felony
grand theft to benefit defendant in plea negotiations. The Legislature changed the threshold for
grand theft from $400 to $950; the computer defendant was charged with stealing
was valued at $700.
Background
When
defendant was originally charged in December 2008 with grand theft, section 487
provided, in part: “Grand theft is theft
committed in any of the following cases:
[¶] (a) When the money, labor, or
real or personal property taken is of a value exceeding four hundred dollars
($400) . . . . [¶] (b) Notwithstanding subdivision (a),
grand theft is committed in any of the following cases: [¶] . . . [¶]
[(1)(B)](3) Where the money, labor, or real or personal property is
taken by a servant, agent, or employee from his or her principal or employer
and aggregates four hundred dollars ($400) or more in any 12 consecutive
month period.â€
In
2009 the Legislature changed the threshold amount under
subdivision (b)(1)(B)(3) of section 487 from $400 to $950. (Stats. 2009, 3d Ex. Sess. 2009, ch. 28, § 17
(Sen. Bill No. 3X 18, eff. Jan. 25, 2010).)
In 2010 the Legislature changed the threshold amount for grand theft
under subdivision (a) of section 487 from $400 to $950. (Stats. 2010, ch. 693, § 1 (Assem. Bill No.
2372, eff. Jan. 1, 2010).) The jury
convicted defendant on June 23, 2010, and the court sentenced him on November
10, 2010.
Discussion
To
establish ineffective assistance of counsel, defendant must show counsel’s
performance was deficient and fell below an objective standard of
reasonableness, and it is reasonably probable that a more favorable result
would have been reached absent the deficient performance. (Strickland
v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674].) A reasonable probability is a “probability
sufficient to undermine confidence in the outcome.†(Id. at
p. 694.)
According
to defendant, counsel’s failure to realize the change in section 487 and to use
this to defendant’s benefit constituted ineffective assistance of counsel. Under defendant’s argument, it is reasonably
possible that the court might have reduced the grand theft to misdemeanor grand
theft, the count would have been reduced prior to trial, or the parties might
have been able to negotiate probation rather than a jail term.
However,
the trial court in sentencing defendant considered his grand theft conviction a
misdemeanor. The court sentenced
defendant to prison based on his felony conviction for burglary, his prior
felony convictions, and several aggravating factors. Even if defense counsel had discovered the
amendment to section 487 and brought it to the court’s attention, there is no
reasonable probability that defendant would have obtained a more favorable
result. Therefore, we find no
ineffective assistance of counsel.
Interview with Officer Costa
According
to defendant, the trial court violated his federal
rights under the Fifth and Sixth Amendments to the United States
Constitution when it admitted his interview with Officer Costa. Defendant claims he never unambiguously
waived his Miranda rights during
Officer Costa’s questioning.
Background
During
trial, defendant moved to exclude his interview with Officer Costa as a
violation of his Miranda rights. Officer Costa interviewed defendant in the
parking lot of the jail after placing him under arrest.
The
following exchange took place:
“[Costa]: All right, Joe, before
we go in, I want to read you your rights.
Okay? You have the right to
remain silent. Do you understand? [¶]
Defendant: Um huh (affirmative). [¶]
[Costa]: Anything you say may be
used against you in court. Do you
understand? [¶] Defendant:
Um huh (affirmative). [¶] [Costa]:
I’m going to need a verbal yes or not [sic]. [¶] Defendant:
Yes. [¶] [Costa]:
You have the right to the presence of an attorney before and during any
questioning. Do you understand? [¶]
Defendant: Yes. [¶]
[Costa]: If you cannot afford an
attorney, one will be appointed for you free of charge before any questioning
if you want. Do you understand
that? [¶] Defendant:
Yes. [¶] [Costa]:
Having those rights in mind, do you want to talk to me about why you’re
being placed under arrest? [¶] Defendant:
(Inaudible). [¶] [Costa]:
You don’t want to talk? [¶] Defendant:
I, I mean, I, we already went over everything, you know? [¶]
[Costa]: Okay. Why did you, why did you, uh, why did you steal
the computer? [¶] Defendant:
I was desperate.â€
name="_ftnref3" title="">[3]
During
the hearing on the admissibility of the interview, the People argued defendant
never clearly and unambiguously invoked his rights, and waived his rights by
continuing to answer Officer Costa’s questions.
Defense counsel argued defendant’s waiver was ambiguous, which prompted
the officer to ask clarifying questions.
Officer Costa’s failure to obtain a clear waiver violated defendant’s
of the circumstances, Officer Costa had the right to continue the interview
because defendant had the responsibility to unequivocally assert his wish to
remain silent.
Discussion
Prior
to custodial interrogation, a defendant must be warned of his or her
these rights and voluntarily, knowingly, and intelligently waives them,
statements made during custodial interrogation are inadmissible in a criminal
trial to prove guilt. (
440.)
To
determine whether a defendant voluntarily waived these rights, the court
considers such factors as the nature, length, and location of the interrogation
and the defendant’s age, experience, and education; the defendant’s physical,
mental, and emotional state; and the defendant’s capacity to understand the
meaning and consequences of waiver. No
one factor is dispositive. (
334, 383 (Lewis);
635, 660-661.)
The
People bear the burden to demonstrate the voluntary nature of the defendant’s
statement by a preponderance of the evidence.
(People v. Bradford (1997) 14 Cal.4th
1005, 1033.) The court must consider
whether the defendant was exposed to any form of coercion, threats, promises,
trickery, or intimidation. (
In
reviewing the trial court’s decision, we accept the court’s resolution of
disputed facts and inferences and its credibility determinations if they are
supported by substantial evidence.
However, we independently determine from the undisputed facts and those
properly found by the trial court whether the challenged statement was
illegally obtained. (
(Johnson); People v. Guerra (2006) 37 Cal.4th 1067, 1093.)
Here,
the record reveals no coercion, threats, promises, or intimidation during the
questioning by Officer Costa. Officer
Costa informed defendant of his Miranda rights. Defendant acknowledged understanding the
recitation of rights. It is the
conversation which followed that defendant argues reveals a violation of his
Defendant
concedes, in the face of ambiguous invocations of the right to counsel, that an
officer may continue talking with the suspect for the limited purpose of
clarifying whether the suspect is waiving or invoking his or her
supra, 6 Cal.4th at p. 27.) However, defendant argues, “It is clear from
Officer Costa’s question—‘You don’t want to talk?[’ [citation]]—that
[defendant] gave him the impression that he did not want to talk to him. Further, in response to whether he ‘wanted to
talk,’ [defendant] again gave a response indicating that he did not want to
talk—that they had already gone over everything. [Citation.]
However, instead of taking further steps to make certain that [defendant]
was waiving his Miranda rights,
Officer Costa simply proceeded with questioning. Such tactic is coercive.â€
Our
analysis of the dialogue between Officer Costa and defendant yields a different
result. Officer Costa advised defendant
of his rights and asked if defendant understood them. Following defendant’s inaudible response,
Costa attempted to clarify whether or not defendant was waiving those rights by
asking, “You don’t want to talk?â€
Costa’s statement did not, as defendant suggests, give the impression
that defendant did not wish to continue.
Instead, Costa’s question clearly gave defendant the opportunity to
unambiguously assert his right to remain silent. Given this opening, defendant did not invoke
his right to remain silent—a simple “no†would have sufficed for that
purpose—but instead engaged in further conversation. We find neither coercion nor a violation of
defendant’s Miranda rights.
Sentencing Error
Denial
of Probation
Defendant
contends the trial court abused its discretion in denying him probation and
instead sentencing him to prison.
Defendant concedes he is presumptively ineligible for probation because
of his two prior felony convictions but argues the particular circumstances of
his case merit a grant of probation.
At
sentencing, the trial court noted it had had lengthy discussions with counsel
about the existence of any unusual circumstances to make defendant eligible for
probation. The court noted that each of
defendant’s convictions, including the one at issue in the present case,
involved violations of a position of trust:
in each instance, defendant violated the trust of his employers. In addition, defendant was on probation when
he committed the present offense. The
court referenced the probation report, which noted defendant’s justification
for his crime was that his employer had cheated him on his salary. The court noted defendant had expressed no
remorse.
Defense
counsel had argued that the purpose of probation was to encourage a defendant
to lead a law-abiding life. However, the
court found, “Two grants of probation have not worked. [¶] Why should I believe that a third grant of
probation will finally encourage [defendant] to lead a law-abiding life? [¶] . . . [¶] I don’t see that a continuing or a further
grant of probation is going to serve any useful purpose. . . . I don’t see that the prior grants of
probation have led [defendant] to lead a law-abiding life. The contrary is shown. He has not shown any sort of remorse or
effort recompensing the victims in this matter.†Therefore, finding no unusual circumstances
justifying probation, the court sentenced defendant to two years in prison for
second degree burglary.
We
review a court’s sentencing decisions, including granting or denying probation,
for an abuse of discretion. The trial
court possesses broad discretion to determine whether a defendant is eligible
for probation. (People v. Olguin (2008) 45 Cal.4th 375, 379.) Section 1203 provides that, “Except in
unusual cases where the interests of justice would best be served if the person
is granted probation, probation shall not be granted to any of the following
persons: [¶] . . . [¶] (4) Any person who has been previously
convicted twice in this state of a felony or in any other place of a public
offense which, if committed in this state, would have been punishable as a
felony.†(§ 1203, subd. (e).)
Defendant
argues the unusual circumstances warranting probation include the facts that
the court reduced the grand theft charge to a misdemeanor and that his prior
felony convictions were for nonviolent crimes.
However, the trial court was well aware of these factors in making its
determination to deny probation. The
trial court instead focused on other factors:
the violation of trust defendant’s crimes represented, the failure of
prior grants of probation to convince defendant to avoid further convictions,
and defendant’s failure to express remorse.
We find no abuse of discretion.
Grand Theft Conviction
Finally,
defendant argues his conviction for grand theft, count two, should be modified
to misdemeanor petty theft because the evidence produced at trial failed to
prove beyond a reasonable doubt that the computer was valued at $950 or
more. In addition, defendant contends
the sentence should be stayed pursuant to section 654. The People concede each point.
At
sentencing, the trial court reduced the grand theft conviction to misdemeanor
grand theft. The threshold for felony
grand theft is $950, effective January 25, 2010. (Stats. 2010, ch. 693, supra.) Defendant was
convicted on June 23, 2010, and sentenced on November 10, 2010. As the People concede, the evidence at trial
established the value of the stolen computer at $700.
The
parties agree that defendant’s conviction should be reduced to misdemeanor
petty theft. (§ 488.) Therefore, we shall direct the court to
modify the judgment to reflect a conviction for misdemeanor petty theft. (§ 1260.)
The
court also failed to impose a sentence on count two. The probation report recommended the sentence
be stayed pursuant to section 654 since both offenses were based on the same
conduct and pursuant to the same objective.
Both sides agree, and we shall direct the court to impose and stay
sentence on the petty theft conviction.
DISPOSITION
The
case is remanded to the trial court to modify the judgment to reflect a
conviction for misdemeanor petty theft on count two, to impose sentence on
count two, and to stay the sentence on count two pursuant to section 654. The court is further directed to prepare an
amended abstract of judgment and to forward a certified copy thereof to the
affirmed.
RAYE , P. J.
We concur:
ROBIE ,
J.
MAURO , J.
name="_ftn1" title="">[1]
All further statutory references are to the Penal Code unless
otherwise indicated.
name="_ftn2" title="">[2] Miranda v. Arizona (1966) 384 U.S.
436 [16 L.Ed.2d 694] (Miranda).
