Filed 1/31/19 In re G.V. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

IN RE G.V., a Person Coming Under the Juvenile Court Law.	H045895 (Monterey County Super. Ct. No. 18JV000162)
THE PEOPLE, Plaintiff and Respondent, v. G.V., Defendant and Appellant.

Following a contested jurisdictional hearing, the juvenile court found true the allegations in a Welfare and Institutions Code section 602 petition alleging that the minor, G.V., committed two counts of felony assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)).[1] At the dispositional hearing, the juvenile court declared G.V. a ward of the court and returned her to the custody of her guardian on probation, with conditions including that she report any “police contacts” to her probation officer and that she not move out of Monterey County or leave the State of California without the permission of the court or her probation officer.

On appeal, G.V. contends the juvenile court erred in its ruling at the jurisdictional hearing because it misunderstood the legal elements of section 245, subdivision (a)(4). G.V. also argues that the juvenile court erred at the dispositional hearing by imposing the two probation conditions described above. For reasons that we will explain, we affirm the judgment, although we modify one of the probation conditions.

I. Facts and procedural background

In an amended juvenile wardship petition under Welfare and Institutions Code section 602, subdivision (a) (the petition), the District Attorney alleged that G.V. violated one count of Penal Code section 245, subdivision (a)(4) (hereafter section 245(a)(4)), assault by force likely to produce great bodily injury, on November 15, 2017, against Jane Doe (count 1), and one count of section 245(a)(4) on February 16, 2018, against Jane Doe 2 (count 2). A contested jurisdictional hearing on the allegations in the petition took place over two days.

A. Evidence at the Jurisdictional Hearing

1. Count 1

Venace,[2] the Jane Doe identified as the victim in count 1 of the petition, testified at the jurisdictional hearing. In November 2017, when she was thirteen years old, she was “beat up” by three girls. She identified G.V. as one of the people who beat her up. G.V. “grabbed me by the hair and started hitting me, and that’s when I fell to the ground.” G.V. punched Venace, and Venace got a bump on her head from G.V. pulling Venace’s hair and hitting her. One of girls other than G.V. kicked Venace four or five times while Venace was on the ground, and punched Venace on the back of her head. Venace got a bruise on her neck, but it was from one of the other girls hitting her.

Asked to clarify “what [G.V.] did during the fight,” Venace stated, “when I was kicked, I got up, and after one of the other girls finished, [G.V.] grabbed me by the hair and started hitting me. And then the other girl got me again and then started hitting me again . . . .” As a result of the incident, Venace was scratched and had bumps on her head.

Venace’s mother, Magdalena, also testified. On the date of the fight, which occurred at Venace’s school, Venace weighed approximately 95 pounds and was 4 feet, 11 inches tall. Magdalena took Venace to the hospital because Venace was suffering from neck pain, had a bruise on her neck, and her head was hurting. Magdalena felt a bump on Venace’s head that was “fairly large.” The hospital gave Venace ibuprofen and acetaminophen but did not give her any other medication. Venace continued to complain of pain for approximately one month after the fight.

Fernando Flores, a police officer with the City of Soledad, testified that, after the incident and in response to questions from him, G.V. described her role in the fight as “pushing Venace onto the floor and . . . striking her [and] punching her several times while on the floor.” When questioned by defense counsel on cross-examination, Flores admitted that his police report stated only that G.V. “admitted to punching Venace several times.”

2. Count 2

Lezzette was a friend of Jane Doe 2, alleged in the petition as the victim in count 2. Two girls attacked Jane Doe 2 when Lezzette and Jane Doe 2 were coming out of school. G.V. “came in back of [Jane Doe 2] and [G.V.] pulled [Jane Doe 2] from her right side of the head, and then that’s how we started fighting.” G.V. “tried to drop” [Jane Doe 2] so that G.V. “could still be fighting with [Jane Doe 2].” Another girl, identified by Lezzette as Jocelyn, began hitting and kicking Jane Doe 2. Lezzette confirmed that G.V. grabbed Jane Doe 2 by the hair and pulled Jane Doe 2 to the floor. G.V. continued to grab on to Jane Doe 2’s hair even as Jocelyn told G.V. to let go. G.V. never kicked Jane Doe 2.

Juan Santiago, a police officer with the City of Soledad, spoke with Jane Doe 2 immediately after the incident and saw a red mark on Jane Doe 2’s neck. Jane Doe 2 complained of pain to her neck.

Fredy Ambriz, a police officer with the City of Soledad, spoke with G.V. the day after the incident involving Jane Doe 2. G.V. told Ambriz that Jane Doe 2 “had been talking smack about her.” G.V. confronted Jane Doe 2 after school. G.V. “went up to [Jane Doe 2] and she grabbed her by the hair and she punched her with her right fist.” After G.V. had pulled Jane Doe 2’s hair and punched her, the other girl with G.V. kicked Jane Doe 2. Jane Doe 2 fell to the ground as a result of G.V.’s pulling Jane Doe 2’s hair.[3] G.V. told Ambriz that she had not intended to attack anyone that day but, based upon rumors she had heard at school, was afraid that someone else was going to attack her.

B. Court Findings at the Jurisdictional Hearing

After the close of testimony, both counsel argued to the court. With respect to the second incident, defense counsel argued, “[t]here is no indication of force likely to cause great bodily injury. There were punches exchanged between teenage girls. Yes, [G.V.] did commit a battery. However, she tried to withdraw from this fight and it was the other girl who used greater force . . . .” Defense counsel characterized the incident in count 2 as a “mutual fight.” As to count 1, defense counsel noted that G.V. “admitted that she punched [Venace] four times.” However, the other girl “committed the more egregious acts of slamming [Venace’s] head,” and G.V. was attempting to defend her friend. Defense counsel argued that G.V.’s conduct “is not conduct that should be deemed a felony” based on G.V.’s remorse, her limited life knowledge, the lack of serious injuries to the victims, and the more culpable behavior of the other girl.

The prosecutor argued in response to defense counsel’s arguments about the other girls in the fight in count 1, “it’s not relevant as to who did what in this fight, whether [G.V.] was the one to hit Venace’s head against the wall or she was the one to deliver the four punches. [¶] Even where the GBI enhancement is alleged, which puts a higher burden on the People because they have to prove that there was actually great bodily injury, it’s not necessary to determine that the defendant was the definite cause of the specific injury, where the defendant was in the group attack. And that’s under People v. Modiri [(2006)] 39 Cal.4th 481. [¶] So it stands to reason . . . that there surely isn’t going to be a higher burden on the assault itself.” Turning to the events of count 2, the prosecutor argued “it’s not relevant as to who did the kicking or who did the punching under the same authority the People just listed.”

The juvenile court made the following ruling, set forth here in its entirety: “I think it’s legally more accurate to describe these two episodes as assaults rather than fights. The minor here, [G.V.], punches the patient [sic] and both of them is [sic] pretty much the same. She grabs the object of the assault by the hair and starts to punch. [¶] In the second episode that was the first or the beginning of the encounter, the assault and the second one. [¶] The first one, while the assault is initiated by someone else, the minor’s participation was to jump in along with others and by grabbing the hair of the defenseless and much smaller girl and to beg[i]n to punch. [¶] So legally speaking, with group assaults like this, the acts of one [are] the acts of all, they are all responsible for what each of them does. And the two events, both I think corroborate each other and aggravate each other. [¶] The video, especially of the second event, was pretty brutal and pretty extensive. It goes on for quite a long time. And I think it is correct to say that this grabbing of one of the assailant’s hair by the victim was an act of self-defense and not an act of participating in a mutual combat fight. It’s pretty clear that it was effective. The grabbing of the hair had slowed down the assailant who then wanted her hair let go of but was unwilling to participate in the agreement to stop the assaults. [¶] I don’t see any self-defense here legally. And the Court sustains the petitions in both episodes.”

Neither counsel objected to the trial court’s ruling. The juvenile court found true both counts of the petition and indicated that the crimes were felonies.

After the court had sustained the allegations in the petition, defense counsel requested that the juvenile court release G.V. from custody. The juvenile court denied the request, stating “this minor was in both of these episodes doing the same thing. And just taking her out of school is not addressing the problem. She can get involved in these things on the streets, obviously. And so it is just too much of a pattern, and there are gang overtones to it as well. . . . [¶] And the problem with release at this time is public safety and whether or not there is a sufficient understanding of the dynamics of this girl’s home life.” The court added, “at first blush, her home life seems to be a significant part of her problem.”

C. The Dispositional Hearing

At the dispositional hearing (which took place before a different judge), the juvenile court declared the minor a ward of the court and returned her to the custody of her guardian on probation for a period of 24 months, with conditions that included serving 61 days in juvenile hall. G.V.’s grandmother, who was her guardian, stated that “it would be appropriate for her to get out and to be able to have school at home, because I think that’s how this problem started.” The juvenile court replied that it was going to release G.V. from custody but “[a]s to the education, that is going to be something that you, or the proper family [members], will be talking to Probation about, making sure that we get her into the right educational setting that’s going to work for her. [¶] We need your input, but they are experts in this particular area and are going to try to find what works best.”

The juvenile court imposed the conditions of probation set out in the probation report, although the court modified one of the conditions listed in the probation report so that G.V. could have contact with her mother. Among the approximately 20 probation conditions imposed was one requiring that G.V. “report any arrests, citations, law violations, or police contacts to your Probation Officer within 24 hours.” Another condition ordered that G.V. “not [ ] change [her] place of residence from Monterey County or leave this state without permission of the Court or Probation Officer. . . . Nothing in this provision shall prohibit minor’s parents/guardians from changing their residence without prior approval of the Court or Probation Officer.”

The juvenile court also imposed substance-abuse conditions, including drug testing, ordered G.V. not to be out of the house in the evening hours without prior permission of her probation officer unless accompanied by a parent or guardian, and required her to participate in “an assessment by the AB 3015 program through Children’s Behavioral Health, and complete all components of the program as directed by [her] probation officer.” The juvenile court also imposed restitution.

G.V. filed a timely notice of appeal.

ii. discussion

A. The Jurisdictional Finding

G.V. argues that the juvenile court erred when it “relied on the prosecutor’s erroneous group beating theory in finding both counts true.” G.V. contends that “[t]he court made no finding that G.V. herself assaulted Venace or Jane Doe [2] with force likely to produce great bodily injury,” and the juvenile court’s comments “ ‘unambiguously disclose[d] that its basic ruling embodied or was based on a misunderstanding of the relevant law.’ ” In addition, G.V. asserts that her defense counsel provided constitutionally ineffective assistance of counsel when she failed to object to the prosecutor’s misstatement of the law and to the juvenile court’s reliance on the prosecutor’s erroneous legal assertion.

The Attorney General counters that the juvenile court did not err, either legally or factually, when it concluded that G.V. had committed both assaults by means of force likely to produce great bodily injury. To the extent that the juvenile court misstated the law, the court’s statement was ambiguous.

G.V. replies that the Attorney General “offers nothing to show that the juvenile court understood the law, much less applied it correctly,” particularly because the juvenile court did not explicitly state that G.V. committed assaults with force likely to produce great bodily injury. G.V. clarifies that she does not argue that there was insufficient evidence to support the jurisdictional findings but instead that the juvenile court’s statements show that the juvenile court misunderstood the law, requiring reversal of its order.

We disagree that the juvenile court’s statement unambiguously demonstrates that the juvenile court misunderstood the relevant law. “The crime of assault is ‘an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.’ [Citation.] It is unnecessary for any actual injury to occur. [Citation.]” (In re Jonathan R. (2016) 3 Cal.App.5th 963, 972.) Furthermore, “a defendant need not make any physical contact with the victim to commit aggravated assault. [Citation.] Under subdivision (a)(4), a powerful punch that misses is an aggravated assault to the same degree as the same punch that lands, at least in theory.” (Id. at p. 974.) “[T]he question of whether or not the force used was such as to have been likely to produce great bodily injury, is one of fact . . . .” (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066, citation and internal quotation marks omitted.)

“[A] trial court’s statements are not reviewable, subject only to the exception that they may be considered when they unambiguously disclose that, in his or her ruling, the trial judge applied an erroneous interpretation of the law.” (People v. Tessman (2014) 223 Cal.App.4th 1293, 1303.) G.V. contends that the juvenile court’s statements shows unambiguous error in that it did not understand that, to sustain the petition against G.V., it must have found that she personally “did an act that by its nature . . . [¶] [t]he force used was likely to produce great bodily injury.” (CALCRIM No. 875.) In particular, G.V. emphasizes the juvenile court’s statement that “with group assaults like this, the acts of one [are] the acts of all, they are all responsible for what each of them does.” However, read in its entirety, we do not understand the juvenile court’s statement as showing an understanding that it could sustain the petition against G.V. based on the acts of others.

The juvenile court found that G.V. punched the victim in each of the two incidents. “That the use of hands or fists alone may support a conviction of assault ‘by means of force likely to produce great bodily injury’ is well established.” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) Therefore, sitting as the factfinder, the juvenile court found that G.V. personally committed acts sufficient to support a true finding on the allegations in the petition.

It is of no moment that the juvenile court did not make an explicit finding that the force used by G.V. was likely to produce great bodily injury. Absent an express statement by the trial court to the contrary, it is presumed the court properly exercised its legal duty. (Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1548–1549.) In addition, “the Juvenile Court Law does not require the making of specific findings and that a general finding that the allegations of the petition are true is sufficient to show the facts upon which the court exercised its jurisdiction to declare the minor a ward or dependent child of the court. [Citations.]” (In re Billy M. (1983) 139 Cal.App.3d 973, 981.) In any event, G.V. does not contend that the evidence was insufficient to support the jurisdictional finding.

People v. Modiri (2006) 39 Cal.4th 481 (Modiri), the case cited by the prosecutor to the juvenile court, confirms our analysis. Modiri upheld a jury instruction setting out the legal elements of an allegation of personal infliction of great bodily injury because the instruction “exclude[d] persons who merely assist someone else in producing injury, and who do not personally and directly inflict it themselves.” (Id. at p. 494.) Therefore, Modiri stands for the proposition that an allegation of personal infliction of great bodily injury—an allegation not made in G.V.’s petition—requires a perpetrator to personally inflict force, even in the context of a group attack. References to Modiri in the jurisdictional hearing, therefore, do not support G.V.’s contention that the juvenile court ignored that it must find her personally culpable of assault with means of force likely to produce great bodily injury against each of the two girls named as victims in the petition.

While we agree with G.V. that the juvenile court’s statement is not a model of clarity, it does not show unambiguously that the juvenile court committed an error of law. Cases reversing convictions based on errors of law contained in statements made by the trial court involve much clearer legal errors. For example, in In re Jerry R. (1994) 29 Cal.App.4th 1432 (Jerry R.), the minor was charged with willfully discharging a firearm, in violation of section 246.3. (Jerry R., at p. 1436.) The juvenile court stated that, “As far as I am concerned, whether or not he knew the gun was loaded is immaterial.” (Ibid.) On appeal, the court concluded that the statute required proof that the defendant intended to fire the weapon (Id. at p. 1437), and the juvenile court’s statement showed a misunderstanding of this material element of the statute. (Id. at p. 1440.) “Proof of an intentional discharge of the firearm was required, and an honest belief that a gun is empty negatives the mental state of an intent to fire the gun.” (Ibid.) Based on the juvenile court’s unambiguous statement that demonstrated that it had misunderstood a material element of the statute, the court of appeal reversed the jurisdictional finding. (Id. at p. 1441.)

Similarly, in People v. Butcher (1986) 185 Cal.App.3d 929 (Butcher), the defendant was convicted in a court trial of the diversion of construction funds, in violation of section 484b. (Butcher, at p. 932.) The court of appeal concluded that the use of construction funds in good faith to defray project expenses other than those listed in an application for a progress payment does not constitute a “diversion” criminalized by section 484b. (Butcher, at p. 938.) Before reaching its verdict, the trial court stated that the prosecution could prove “diversion” if it showed that the contested progress payment was used for any purpose other than the purpose listed in the relevant progress payment application. (Id. at p. 935.) Reviewing the trial court’s statement, the court of appeal remarked, “In criminal cases an appellate court may take into consideration the ‘ “judge’s statements as a whole” [when they] disclose an incorrect rather than a correct concept of the relevant law, embodied not merely in “secondary remarks” but in his basic ruling . . . .’ [Citation.] That is the case here.” (Id. at p. 936.) The court in Butcher concluded that “after a review of the entire record and viewing the judge’s discussion as a whole, we believe the trial court relied upon an erroneous reading of Penal Code section 484b,” and it reversed the conviction. (Id. at pp. 936–937, 941.) As in Jerry R., the trial court’s statement in Butcher clearly demonstrated that the trial court misunderstood a material element of the offense.

Read as a whole, we cannot conclude that the juvenile court’s statement here demonstrates an unambiguous misreading of the legal requirement that G.V. must have personally committed an act that was likely to produce great bodily injury.[4] The juvenile court pointed that out that G.V. punched each of the victims and grabbed their hair. It is true that the juvenile court’s statement that “legally speaking, with group assaults like this, the acts of one [are] the acts of all, they are all responsible for what each of them does,” is not a correct description of the law of assault. However, in light of the juvenile court’s entire jurisdictional statement—and particularly the court’s finding that G.V. personally punched both victims—we do not agree with G.V. that this remark constitutes an incorrect statement of the law embodied in the court’s “basic ruling.” (See Butcher, supra, 185 Cal.App.3d at p. 936.) We reject G.V.’s contention that we must reverse the juvenile court’s jurisdictional order on this basis.[5]

B. Probation Conditions Imposed at the Dispositional Hearing

G.V. also challenges two probation conditions imposed by the juvenile court. Although G.V. did not object to either condition before the juvenile court, she has not waived a facial challenge to them. (See In re Sheena K. (2007) 40 Cal.4th 875, 888 (Sheena K.); In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143 (Shaun R.).) To the extent a defendant argues that probation conditions are unconstitutional, we review that issue de novo; otherwise, we review probation conditions for abuse of discretion. (Shaun R., supra, at p. 1143.)

G.V. contends that condition number 4 of her probation, which requires her to report all “police contacts,” is void for vagueness. “A probation condition ‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.] A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890.)

In People v. Relkin (2016) 6 Cal.App.5th 1188 (Relkin), the Court of Appeal concluded that a probation condition that directs a probationer to report “all police contacts” is void for vagueness. “[T]he portion of the [probation] condition requiring that defendant report ‘any contacts with . . . any peace officer’ is vague and overbroad and does indeed leave one to guess what sorts of events and interactions qualify as reportable. We disagree with the People’s argument that the condition is clearly not triggered when defendant says ‘hello’ to a police officer or attends an event at which police officers are present, but would be triggered if defendant were interviewed as a witness to a crime or if his ‘lifestyle were such that he is present when criminal activity occurs.’ The language does not delineate between such occurrences and thus casts an excessively broad net over what would otherwise be activity not worthy of reporting.” (Id. at p. 1197.) The Attorney General argues that Relkin was wrongly decided but requests that, if this court follows Relkin, it modify the probation condition to require G.V. to “alert her probation officer of any arrests or contacts with law enforcement pertaining to the investigation of criminal activity by her or others.”

We agree that, like the condition examined in Relkin, the probation condition imposed on G.V. is impermissibly vague. G.V. is a minor who may attend schools at which law enforcement may be present on campus in situations that do not necessarily involve criminal investigations. The condition as worded does not reasonably inform G.V. that she should not report casual conversations with police officers to her probation officer but must report discussions with officers about criminal activity. Because the condition is not “sufficiently precise for [G.V.] to know what is required of [her]” (Sheena K., supra, 40 Cal.4th at p. 890), it is unconstitutionally vague. Based upon the language suggested by the Attorney General, we order the juvenile court to modify the probation condition to read “You are to report any arrests, citations, law violations or contacts with law enforcement officers who you know are investigating criminal activity to your Probation Officer within 24 hours.”

G.V. also challenges probation condition number 8, which forbids her from changing her place of residence from Monterey County or leaving the state without prior court order or permission of her probation officer. She argues that the condition is invalid as unreasonable because it “has no nexus to criminality.” We disagree.

Under Welfare and Institutions Code section 730, subdivision (b), the juvenile court “may impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.” However, “a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.” (People v. Lent (1975) 15 Cal.3d 481, 486.) A condition of probation that enables a probation officer to supervise his or her charges effectively is reasonably related to future criminality. (People v. Soto (2016) 245 Cal.App.4th 1219, 1227 (Soto).)

G.V. relies on this court’s decision in Soto, which found a similar residency requirement invalid because nothing in the record in that case suggested that leaving the county or state would affect the defendant’s rehabilitation. (Soto, supra, 245 Cal.App.4th at p. 1228.) However, the court in Soto acknowledged that its conclusion was dependent on the facts of Soto’s case. (Id. at p. 1228, fn. 3 [noting “there may be certain situations where obtaining the probation officer or court’s approval before changing residences or leaving the state may be required for adequate supervision and may be reasonably related to future criminality”].) In contrast to Soto, here we conclude that the juvenile court properly decided that probation condition number 8 is both required for adequate supervision of G.V. and reasonably related to her future criminality.

“ ‘[J]uvenile conditions may be broader than those pertaining to adult offenders. This is because juveniles are deemed to be more in need of guidance and supervision than adults, and because a minor’s constitutional rights are more circumscribed.’ [Citation.]” (In re R.V. (2009) 171 Cal.App.4th 239, 247.) “ ‘An appellate court will not disturb the juvenile court’s broad discretion over probation conditions absent an abuse of discretion. [Citations.] We grant this broad discretion so that the juvenile court may serve its rehabilitative function and further the legislative policies of the juvenile court system. [Citations.] [¶] In fashioning the conditions of probation, the juvenile court should consider the minor’s entire social history in addition to the circumstances of the crime. [Citation.] Thus, “ [a] condition of probation which is [legally] impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court.” ’ ” (Id. at p. 246.)

We do not find an abuse of discretion in the juvenile court’s decision to impose probation condition number 8, which limits G.V.’s ability to change her place of residence and to leave the county and state. One of the other probation conditions ordered G.V. to obey a curfew—a directive G.V. does not challenge—which necessarily means that the probation officer must know where she lives in order to supervise her compliance. In addition, the juvenile court ordered G.V. to complete a number of programs, including an “AB 3015 program through Children’s Behavioral Health,” which suggests a nexus to Monterey County and the services available to G.V. there. Furthermore, the record on appeal demonstrates an ongoing concern with G.V.’s education as a critical step in her rehabilitation. The probation officer’s ability to effectively supervise G.V.’s educational placement depends on the officer’s understanding of the educational options available and potential barriers to G.V.’s rehabilitation, such as those posed by gang activity at a particular school. This specialized knowledge by the supervising probation officer could be jeopardized if G.V. moved to another region of the state or to another state altogether. In sum, we have little difficulty concluding that the terms of the challenged probation condition are “required for adequate supervision and [are] reasonably related to future criminality.” (Soto, supra, 245 Cal.App.4th at p. 1227.)

We further observe that probation condition number 8 allows G.V. to obtain approval from the court or from her probation officer to change her place of residence. In addition, the condition specifically exempts her guardian or parents from the restriction. In light of the facts in the record about G.V.’s rehabilitative needs and the wording of the probation condition, condition number 8 does not impermissibly infringe on G.V.’s constitutional rights. The juvenile court did not abuse its discretion in imposing it as worded.

iii. disposition

Probation condition number 4 is modified to provide as follows: “You are to report any arrests, citations, law violations or contacts with law enforcement officers who you know are investigating criminal activity to your Probation Officer within 24 hours.”

With this modification, the judgment is affirmed.