P. v. Cavalier

Filed 10/25/07 P. v. Cavalier CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Aaron H. Katz, Judge. Affirmed.

Marcos Cavalier was convicted of three counts of burglary. He admitted a first prison prior conviction under Penal Code^[1]section 667.5, subdivision (b). Cavalier was sentenced to five years, four months. He appeals, arguing his verdict was not supported by substantial evidence, that the trial court failed to instruct on the lesser included offense of trespass, and that the trial court erred in instructing the jury, in imposing an aggravated sentence, and in ordering restitution. We affirm the judgment.

FACTS

Between October 2005 and January 2006, appellant repeatedly visited three retail stores and browsed the power tools and electronics departments. His behavior pattern was consistent with attempts to steal expensive merchandise. Appellant usually loaded a cart full of power tools and left it in the garden center near an emergency exit or an opening in the fence. He never purchased any of the tools. Sometimes appellant removed large power tools from their boxes. One time, he broke the security devices that attached small items to the display. In several instances, the stores were not able to find the merchandise.

A. Count 1, Home Depot on West Valley Parkway

On October 28, 2005, a security officer at the Home Depot on West Valley Parkway found an empty drill box in the garden department. The investigator reviewed the security tapes and noticed an individual, later identified as appellant, removing the same type of drill from the tool department. After finding another empty drill box in the garden department on November 27, 2005, the officer reviewed the video tapes and saw appellant place a drill in a shopping cart. Between November 26 and early December, at least four or five empty power tool boxes were found in the garden department.

In early December the officer saw appellant inside the store as appellant walked toward the tool department pushing a shopping cart, but then he abandoned the cart and left the store. On December 10, 2005, the officer again watched appellant quickly load multiple power tools into a shopping cart and move the cart to the garden center. Once appellant entered the garden area, he selected a trash can lid from the display and covered the merchandise in his shopping cart with the lid. Appellant then pushed the shopping cart to the far corner of the outside garden area next to the emergency exit, walked away from the cart and left the store. The value of the merchandise recovered from the cart exceeded $2,191.

On December 16, 2005, appellant, accompanied by another man, entered the store again, quickly selected a tool kit valued at $729, placed it underneath his shopping cart and proceeded to the garden center. He did not reach the garden center but instead selected a jug of kerosene and went back to the tool department, where a cashier helped him purchase the kerosene at the self check-out register. Appellant left the purchased kerosene at the cashier's station in the front of the store and walked around the store for awhile, then returned to the front, picked up the kerosene and left. Once again, appellant abandoned the tool kit in the cart.

On January 15, 2006, appellant came to the store's tool department and loaded his cart with numerous expensive power tools. He then went to the garden department, took a large outdoor plastic can, placed six drills valued at $1,384 inside it and closed the lid. Appellant moved the trash can to the emergency exit and left it. He left the store, walked around the building to where the emergency exit was located, quickly looked at the exit and returned to the parking lot. In the parking lot appellant made a call on his cell phone.

The next time appellant came to Home Depot was January 23, 2006, about five minutes before closing time. He placed several drills and a power tool kit in his shopping cart. Moving to the back of the store, he covered the tools in the cart with a children's safety gate packaged in a thin flat box and then placed a bag of wood chips on top of all the items. Appellant headed to the garden center, but he did not enter once he noticed that an employee meeting was taking place there. He abandoned the cart and left the store. The value of items recovered from the shopping cart was $1,785.

B. Count 2, Target

In early December 2005, appellant came into the Target store, quickly walked to the electronics department, viewed expensive equipment and put a small item that looked like a case or a pouch in his shopping cart. He then placed some other merchandise in the child seat of the cart, walked to the garden section of the store and stood between two sets of Christmas trees. A security officer approached the Christmas tree display, heard the sound of cutting plastic and saw appellant hunched over the cart. Appellant turned around and walked up to the officer, saying: "I know who you are. I see you. I saw you and your partner in the beginning." "You guys are, you know, security, undercover security." Appellant's tone was aggressive and confrontational. He took a handheld Play Station portable player out of his pocket and stated: "You think I stole, huh. This is mine. This ain't your guys." Appellant then walked through the garden department back to the store and left the store without buying anything. The only item recovered from his cart was the small case.

On January 5, 2006, appellant returned to the store and went to the electronics department, where Play Station memory cards were secured to the display by locking peg hooks. The proper way to remove an item secured by the locking peg hook is by a magnetic key held by store employees, but memory cards can also be removed by cutting or ripping the thin plastic wrapper. Appellant ripped three Play Station memory cards from their locking peg hooks and placed them in the child seat of the shopping cart. Appellant went into the garden department, and security lost sight of him for a few minutes.

When appellant was seen again, he no longer had the memory cards in his shopping cart. Instead, his cart contained three boxes of firewood, which is displayed near the chain-link fence in the garden department. There is a two-inch gap between the chain-link fence and the adjacent wall of the building. The memory cards are only one-inch thick. Each card costs $99.99. The cards have security tags that activate the alarm at the front door. When appellant abandoned the cart, the memory cards were no longer there. The cards were not found anywhere in the garden department. Appellant left the store without buying anything. He did not set off the alarm system. After leaving Target, appellant walked along the building toward the chain-link fence in the garden department.

On January 9, 2006, appellant visited Target again. He browsed the electronics department, selected a package of photo paper and put it in his cart. He then walked to the aisle where the MP3 players were secured to the display by locking peg hooks, broke off two locking peg hooks and placed six MP3 players in the child seat of his cart. Appellant also selected a DVD case and placed it on top of the MP3 players. He then proceeded to the garden tool section and selected a gardening tool.

Because it was past 7:00 p.m., most of the garden center, except for a small gated employee area, was closed. The employee area allowed access to the chain-link fence, where items could be slipped through to the outside. Appellant walked into the employee area, talking on the phone. Around the same time, a car pulled up to the back of the store next to the chain-link fence and the driver stepped out, carrying something in his hands. When the driver returned to the car, the item in his hands appeared larger.

Meanwhile, appellant left the cart in the garden area and left the store without making any purchases or setting off the alarm. The same car that stopped near the chain-link fence pulled up to the front and picked appellant up. Appellant's cart was recovered in the employee area of the garden department. It contained the photo paper and the DVD case. The gardening tool and MP3 player price tags were found in the same area. The six MP3 players valued at $200 each were never recovered.

C. Count 3, Home Depot on East Valley Parkway

On December 5, 2005, a security officer at Home Depot on East Valley Parkway noticed appellant in the tool department looking at drills. Appellant left after 10 or 15 minutes without purchasing anything.

On January 18, 2006, appellant returned to the tool department. He quickly placed several power tools in the shopping cart and pushed the cart to the garden center. Appellant then abandoned the cart and left the store. The total value of the items recovered from the cart was $1,589.22.

DISCUSSION

A. Sufficiency of the Evidence

Appellant argues that his burglary convictions ( 459) were not supported by sufficient evidence because evidence of his felonious intent was lacking. Indeed, appellant argues that even though theft is not an element of burglary under section 459, nonetheless, it is impossible to commit commercial burglary during business hours when there is no evidence of theft.

1. Standard of Review

In reviewing a criminal conviction challenged for insufficient evidence, we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence−that is, evidence which 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. Maury (2003) 30 Cal.4th 342, 396.) Before a judgment of conviction can be set aside for insufficient evidence, it must clearly appear that on no hypothesis is there sufficient evidence to support the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 575-576.)

The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on "isolated bits of evidence." (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.) It is the exclusive province of the trier of fact to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. (People v. Jones (1990) 51 Cal.3d 294, 314.) Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. (Ibid.)

The same standard of review applies in cases in which the People rely on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt. (Id. at pp. 792-793.) The jury must acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence. (Ibid.) However, it is the jury, not the appellate court, which must be convinced of the defendant's guilt beyond a reasonable doubt. (Id. at p. 793.) If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (Ibid.)

2. Analysis

Every person who enters a commercial building with the intent to commit grand or petit larceny or any felony is guilty of burglary. ( 459.) "While it is necessary for the prosecution in a burglary case to show that the defendant entered the premises with the requisite intent, such intent may be inferred from all the facts and circumstances disclosed by the evidence. Where the evidence is sufficient to justify a reasonable inference that such intent existed, the verdict may not be disturbed." (People v. Clark(1968) 268 Cal.App.2d 293, 296.) "[S]uch intent is rarely susceptible of direct proof, and must, therefore, ordinarily be inferred from the facts and circumstances disclosed by the evidence [citation].' [Citation.]" (People v. Hinson (1969) 269 Cal.App.2d 573, 578.)

The jury convicted appellant of three counts of burglary after hearing circumstantial evidence supplied by witness testimony and videotape footage taken from security camera systems inside the three stores. Three loss prevention officers from three different stores identified appellant as the individual who entered the stores and attempted to steal expensive merchandise. The jury watched several video recordings and observed appellant quickly move within the store and load multiple items in his cart.

On one occasion he broke the security devices to remove memory cards from the display. The memory cards were never found. Another time he hid power tools inside the trash can and placed it near the emergency exit. The jury reasonably found that this behavior was not innocuous and that appellant in fact had the intent to steal. Considering the record favorably to support the trial court's finding, we conclude there was substantial evidence to support a reasonable inference that appellant intended to commit theft when he entered the stores.

Appellant contends he cannot be convicted of commercial burglary unless he committed theft. Appellant has read too much into the statute and case law he cites. To commit burglary, the defendant must only enter with the intent to commit a felony or theft. The underlying felony need not actually be committed or attempted. (People v. Gbadebo-Soda (1995) 38 Cal.App.4th 160, 166.) Based on the whole record, we conclude there is substantial evidence to support appellant's burglary conviction.

B. Instructional Error

Appellant argues the court committed reversible error when it misread a jury instruction. The instruction on burglary required the jury only to find that appellant entered the stores with the intent to commit theft. The trial court used CALCRIM No. 1800 to instruct concerning the element of theft. It states:

"1. The defendant took possession of property owned by somebody else;

"2. The defendant took the property without the owner's consent;

"3. When the defendant took the property he intended to deprive the owner of it permanently or to remove it from the owner's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property;

"AND

"4. The defendant moved the property, even a small distance, and kept it for any period of time, however brief."

Reading the theft instruction, the court omitted the conjunction "and" between the third and the fourth elements. Appellant asserts the omission was prejudicial because it allowed the jury to convict him if it found he "moved the property a small distance and kept it any period of time, however brief." We disagree.

The written version of jury instructions governs any conflict with oral instructions. (People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1113.) It is generally presumed that the jury was guided by the written instructions. (Id. at p. 1112.) The misreading of a jury instruction is at most a harmless error if the jury received the correct written instructions. (People v. Prieto (2003) 30 Cal.4th 226, 255; People v. Box (2000) 23 Cal.4th 1153, 1212; People v. Osband (1996) 13 Cal.4th 622, 686.)

Here, the jury received both oral and written instructions and had a copy of written instructions during deliberations. Any error resulting from misreading the instructions was harmless. Further, even though the trial court misread the instructions by omitting the word "and," no reasonable jury could conclude that any one of four elements, standing alone, was sufficient to warrant a theft conviction.

C. Trespass Is Not a Lesser Included Offense of Burglary

1. Court Did Not Have Duty to Instruct Sua Sponte

Appellant contends the trial court erred in not instructing on the lesser included offense of trespass. The contention is without merit because trespass is not a lesser included offense of burglary.

A trial court is required to give a sua sponte instruction on any lesser offense necessarily included in the charged offense where there is substantial evidence that only the lesser crime was committed. (People v. Breverman (1998) 19 Cal.4th 142, 148-149; People v. Birks (1998) 19 Cal.4th 108, 112, 118.) "Burglary, the entry of specified places with intent to steal or commit felony ( 459), can be perpetrated without committing any form of criminal trespass (see 602). [Citations.]" (People v. Birks, supra, at p. 118, fn. 8.) Because trespass is not a lesser included offense of burglary, the trial court could not sua sponte instruct on it. (Ibid.; People v. Steele (2000) 83 Cal.App.4th 212, 217.)

For a lesser offense to be necessarily included in a greater offense, one of two tests must be satisfied. (People v. Lopez (1998) 19 Cal.4th 282, 288.) The "elements" test is met if the statutory elements of the greater offense include all the elements of the lesser offense so that the greater offense cannot be committed without committing the lesser offense. (People v. Birks, supra, 19 Cal.4th at p. 117.) The "accusatory pleading" test is met if the facts alleged in the accusatory pleading include all the elements of the lesser offense, such that the greater offense cannot be committed without also committing the lesser offense. (Ibid.) Appellant's contention that trespass is a lesser included offense of burglary fails both the elements test and the accusatory pleading test requirement.

A burglary occurs when a person "enters any . . . building . . . with intent to commit grand or petit larceny or any felony." ( 459.) Appellant's burglary charge involved two elements: unlawfully entering the building and intent to commit theft at the time of entrance.

Section 602 defines "trespass" as "[e]ntering . . . for the purpose of injuring any property or property rights or with the intention of interfering with, obstructing, or injuring any lawful business or occupation carried on by the owner of the land, the owner's agent or by the person in lawful possession." ( 602, subd. (k).) Because appellant could have intent to steal, but not to interfere with, or injure, any property interest, he could be guilty of burglary without satisfying all the elements of trespass.

2. Appellant Did Not Establish Ineffective Assistance of Counsel

Alternatively, appellant argues his counsel was ineffective for failing to request the trespass instruction as a lesser related offense of burglary. We disagree.

To establish a claim of ineffective assistance of counsel, appellant must show that the counsel's performance was deficient and that this deficiency resulted in prejudice to the appellant. (People v. Ledesma (2006) 39 Cal.4th 641, 745-746.) The court must reject a claim of ineffective assistance raised on appeal "unless the record reflects the reason for counsel's actions or omissions, or precludes the possibility of a satisfactory explanation." (Id. at p. 746.)

Here, appellant failed to establish that counsel's assistance fell "below an objective standard of reasonableness [] . . . under prevailing professional norms." (Strickland v. Washington (1984) 466 U.S. 668, 688 [104 S.Ct. 2052].) There is no basis upon which to conclude that defense counsel failed to pursue a reasonable tactical choice in deciding not to ask for a trespass instruction. As a mater of trial strategy, counsel maintained appellant's innocence and asked the jury to acquit appellant of all charges.

Appellant also fails to show the lack of instruction prejudiced him. The evidence did not support the lesser related offense of trespass in this case, and the trial court would have likely denied the request for a trespass instruction. Even if such instruction were given, the jury could still find appellant guilty of burglary based on the evidence in this case. Because we conclude counsel's actions were not deficient, the instruction was not warranted, and any alleged error was not prejudicial, appellant's claim of ineffective assistance of counsel fails.

D. Trial Court Properly Imposed Upper Term

Appellant argues that imposition of the upper term for count 1 and consecutive sentences for counts 2 and 3 violates the United States Supreme Court decision in Cunningham v. California ((2007) 549 U.S. ___ [127 S.Ct. 856] because the sentence was imposed by the court and not based on facts found by the jury. Specifically, he argues the jury did not make any findings regarding his prior history, parole or probation status. We conclude the trial court could properly enhance appellant's punishment by relying on the fact of his prior conviction.

1. Background

Following his conviction, appellant admitted having a prison prior ( 667.5, subd. (b), 668.) The trial court sentenced appellant to prison for five years and four months. The court identified count 1 as the principal term and imposed the upper term of three years. The court imposed consecutive sentences of eight months on counts 2 and 3. The court also imposed a one-year term for prison prior.

2. Upper Term

In Cunningham the United States Supreme Court held that the imposition of an upper term under California's determinate sentencing law (DSL), if based on neither a prior conviction nor facts found by the jury or admitted by the defendant, violates the Sixth and Fourteenth Amendments of the United States Constitution: "California's determinate sentencing law (DSL) assigns to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated 'upper term' sentence. The facts so found are neither inherent in the jury's verdict nor embraced by the defendant's plea, and they need only be established by a preponderance of the evidence, not beyond a reasonable doubt. The question presented is whether the DSL, by placing sentence-elevating factfinding within the judge's province, violates a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. We hold that it does."

(Cunningham v. California, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 860].)

However, there is no right to a jury trial for a sentence based on the fact of prior conviction. (Cunningham v. California, supra, 549 U.S. at p. ___ [127 S.Ct. at pp. 860, 864, 868]; United States v. Booker (2005) 543 U.S. 220, 244.) Thus, "imposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions." (People v. Black (2007) 41 Cal.4th 799, 816.) The Supreme Court in Cunningham plainly recognized the validity of imposing aggravated terms based on the fact of a prior conviction. (Cunningham v. California, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 868].)

Here, the court found an aggravating circumstance existed based on appellant's criminal record. Under these circumstances, the court could properly impose the upper term. "[S]o long as a defendant is eligible for the upper term . . . the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term . . . ." (People v. Black, supra, 41 Cal.4th at p. 813.)The judge thus could properly find other aggravating circumstances in evaluating whether to impose the upper term.

3. Consecutive Sentences

Appellant argues that imposition of consecutive terms for counts 2 and 3 based on the facts not found by a jury violates the rule set forth by Cunningham that every fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. (Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. at pp. 863-864].)

A " 'jury's verdict finding the defendant guilty of two or more crimes authorizes the statutory maximum sentence for each offense.' " (People v. Black, supra, 41 Cal.4th at p. 821.) The Cunningham decision does not affect the imposition of consecutive sentences for two separate crimes. (Ibid.) Here, the trial court did not exceed the combined statutory maximums for both crimes, and thus appellant's Sixth Amendment rights were not affected. (Ibid.) We hold the trial court properly imposed consecutive sentences for counts 2 and 3.

E. Trial Court Properly Ordered Restitution

Appellant argues that because his sentence must be reduced, his $1,500 restitution fine imposed under section 1202.4, subdivision (b), should be also be recalculated. Appellant also argues the trial court erred in requiring direct restitution in the amount of $1,449.92 because no loss was suffered as a result of his crimes. Additionally, he argues his due process rights were violated by the restitution order because he was not given notice of the amount sought.

1. Standard of Review

A restitution order is reviewed for an abuse of discretion. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) A trial court has " 'broad discretion in setting the amount of restitution.' " (People v. Balestra (1999) 76 Cal.App.4th 57, 63.) The amount may be calculated by "any rational method that could reasonably be said to make the victim whole." (People v. Akins (2005) 128 Cal.App.4th 1376, 1387.) "An abuse of discretion will not be found if there is a factual or rational basis for the amount of restitution ordered." (People v. Fortune (2005) 129 Cal.App.4th 790, 794.)

The standard of proof at a restitution hearing is by a preponderance of the evidence. (People v. Baker (2005) 126 Cal.App.4th 463, 469.) "If there is some evidence to support the court's ruling, disputed or not, we will affirm the court's order." (People v. Rubics (2006) 136 Cal.App.4th 452, 462.) Therefore, we "will not disturb the trial court's determination unless it is arbitrary, capricious and exceeds the bounds of reason." (People v. Maheshwari (2003) 107 Cal.App.4th 1406, 1409.)

2. Discussion

Section 1202.4 provides in part that the court shall order the defendant to pay:

"(A) A restitution fine in accordance with subdivision (b).

"(B) Restitution to the victim or victims, if any, in accordance with subdivision (f), which shall be enforceable as if the order were a civil judgment." ( 1202.4 (a)(3).)

The court is first required under subdivision (b) to impose a restitution fine between $200 and $10,000 on every defendant convicted of a crime, unless it finds compelling reasons not to do so. ( 1202.4, subd. (b).) A recommended formula for calculating the amount of fine is "the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted." ( 1202.4, subd. (b)(2).)

Here, the court did not follow the section 1202.4, subdivision (b)(2), formula to calculate the amount of restitution and instead chose to impose a smaller amount of $1,500 under subdivision (b). Because we have concluded that appellant's sentence was properly imposed, we decline to recalculate the restitution under subdivision (b).

The court must next require direct restitution to the victims, if applicable. The subdivision provides, in pertinent part: "In every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court." ( 1202.4, subd. (f).)

The court properly imposed restitution under subdivision (f) in the amount of $1,449.92. The evidence presented at trial supports the amount of fine. In count 2 appellant was convicted of burglarizing Target. Witness testimony established that appellant stole three memory cards for the total value of $299.97. There was also witness testimony about appellant taking six MP3 players valued at $200 each. The probation report described the same incident with one small difference, the appellant stole four MP3 players for the total value of $1,149.95. By any account, however, there was substantial evidence that appellant stole electronics from Target in the amount of at least $1,449.92.

Further, the trial court did not violate appellant's due process rights when it ordered direct restitution to Target. Due process is satisfied if a defendant is given notice of the amount of restitution sought and a hearing at which he has an opportunity to challenge the request. (People v. Thygesen (1999) 69 Cal.App.4th 988, 993.) Notice requirement may be satisfied by a probation officer's report. (People v. Harvest (2000) 84 Cal.App.4th 641, 653.) The amount of restitution is determined by the court order "based on the amount of loss claimed by the victim or victims or any other showing to the court." ( 1202.4, subd. (f), italics added.)

Contrary to appellant's argument, the probation recommendation and the evidence at trial provided appellant with sufficient notice of the restitution order. Appellant received notice from the probation report, which recommended that he pay restitution to victims. The report indicated Target suffered a loss of $1,149.95 as a result of appellant's crimes. Additionally, there was evidence presented at trial about appellant stealing three memory cards valued at $99.99 each. Thus, appellant had notice that he will have to pay restitution to Target in the amount of $1,449.92.

Due process requires a criminal defendant be afforded a reasonable opportunity to be heard on the restitution issue and to dispute the amount of restitution. (People v. Resendez (1993) 12 Cal.App.4th 98, 112-114; People v. Sandoval (1989) 206 Cal.App.3d 1544, 1550.) Appellant had the opportunity to be heard on the issue at the sentencing hearing, and he took advantage of it. Therefore, we hold appellant was not denied due process.

DISPOSITION

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

HALLER, J.

O'ROURKE, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.