Opinion
Page 666f
109Cal.App.4th666f ___ Cal.Rptr.2d ___ THE PEOPLE, Plaintiff and Respondent, v. REBECCA CLELAND et al., Defendants and Appellants. B143757 California Court of Appeal, Second District, Seventh Division June 16, 2003Los Angeles County Super. Ct. No. BA 163991
ORDER MODIFYING OPINION AND DENYING REHEARING [No Change In Judgment]
Before Perluss, P. J., and Johnson, J.
1.It is ordered that the opinion filed herein on May 27, 2003 be modified as follows:
The first sentence on page 8 of the typed opinion, beginning "The People reluctantly" is deleted and replaced by the following sentence:
Conceding the record does not reflect that J. Quesada had been advised of his right to remain silent, to the presence of an attorney and, if indigent, to appointed counsel (Miranda v. Arizona(1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]) prior to being asked whether he recognized the person he had been with in the patrol car, the People necessarily assume for purposes of this appeal, as do we, that no such advisements had been given.
2.In her opening brief Rebecca Cleland argued "the prosecutor committed egregious misconduct and violated Ms. Cleland's constitutional privilege against self-incrimination and her right to due process when he commented on her post-arrest silence." To support this argument, the Cleland brief cited Griffin v. California (1965) 380 U.S. 609, 613, as well as Wainwright v. Greenfield (1986) 474 U.S. 284 and Doyle v. Ohio (1976) 426 U.S. 610.Although the argument thereafter focused on so-called" Doyle error," the People's assertion that this court's decision finding Griffin error was based on "an issue which was not proposed or briefed by any party" (Gov. Code, § 68081) is incorrect. Accordingly, the People's petition for rehearing is denied.
This modification does not result in a change in the judgment.