Boyette

*1530 Opinion

1. Introduction

Defendant Steven Boyette appeals from the judgment following his conviction by a jury of first degree burglary. (Pen. Code, §§ 459-460.) We remand with directions that the trial court determine whether defendant was deprived of pretrial discovery and if so, provide defendant relief including a new trial, as appears appropriate.

2. Trial Evidence

At about 11 p.m. on Saturday, July 12, 1986, Delbert Slabaugh realized that a wooden china cabinet had been stolen from his house in San Jose earlier that day while he was gone.

Slabaugh met defendant two years earlier when defendant did some work for him in exchange for a truck. Defendant took up residence in a trailer on Slabaugh’s premises in November 1984, and had permission to use an exterior bathroom in Slabaugh’s house. In May 1986 defendant began helping Slabaugh with odd jobs.

Defendant helped Slabaugh move the china cabinet into the house four to six weeks before the burglary. Slabaugh told defendant he would have no work for him on July 12, 1986, because he had to attend traffic school.

Five-year-old Justin R. lived with his family upstairs in Slabaugh’s house. He testified he saw defendant…

When the trial court found the defendant’s statement “voluntary,” it obviously used that word in the sense of “volunteered.” Voluntariness, as contradistinguished from duress, was never in issue. The trial court’s finding was amply supported by the evidence; and as the Miranda decision itself makes clear, volunteered statements of any kind are not barred by the Fifth Amendment. (Miranda v. Arizona (1966) 384 U.S. 436 at p. 478 [ 16 L.Ed.2d 694, 726 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ].) I believe that the defendant’s statement should be discussed in that context rather than under the heading of Miranda waiver.

In all other respects, I agree with the opinion.