(Super. Ct. No. 62086512)
The opinion of the court was delivered by: Raye , P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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).)*fn1 A jury found defendant 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, evidentiary error, and sentencing error. We shall remand for modification of 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 Miranda*fn2 rights to him, defendant admitted stealing the computer.
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.
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.
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 ...