P. v. Daniel





Filed 3/3/11 P. v. Daniel CA4/2








NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. ROBERT JOSEPH DANIEL, Defendant and Appellant.

E050309 (Super.Ct.No. INF063300) OPINION

APPEAL from the Superior Court of Riverside County. John G. Evans, Judge. Affirmed with directions.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Gil Gonzalez and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
Victim Brittany H. testified that defendant Robert Joseph Daniel shot her in the face; he had forgotten where he left his methamphetamine, and he mistakenly concluded that she had taken it. Brittany also testified that, at the time of the shooting, she and defendant were “together” — i.e., they were in a romantic and sexual relationship. Evidence that defendant had committed acts of domestic violence against previous girlfriends was admitted under Evidence Code section 1109.
Defendant was found guilty as follows:
Count 1: Attempted willful, deliberate, and premeditated murder (Pen. Code, § 187, subd. (a), 664), with enhancements for personally inflicting great bodily injury under circumstances involving domestic violence (Pen. Code, § 12022.7, subd. (e)) and personally and intentionally discharging a firearm (Pen. Code, § 12022.53, subd. (c)).
Count 2: Assault with a firearm (Pen. Code, § 245, subd. (a)(2)), with an enhancement for personally inflicting great bodily injury under circumstances involving domestic violence.
Count 3: Possession of a firearm by a person convicted of a violent offense (Pen. Code, § 12021.1, subd. (a)).
Count 4: Possession of a firearm by a person convicted of a felony (Pen. Code, § 12021, subd. (a)(1)).
Count 5: Possession of ammunition by a person prohibited from possessing a firearm (Pen. Code, § 12316, subd. (b)).
Defendant admitted four 1-year prior prison term enhancements. (Pen. Code, § 667.5, subd. (b)).
As a result, defendant was sentenced to a total of 37 years to life in prison.
Defendant now contends:
1. There was insufficient evidence that defendant and the victim had a dating relationship to support the enhancements under Penal Code section 12022.7, subdivision (e).
2. Evidence Code section 1109 violates due process and equal protection.
3. The trial court abused its discretion by admitting the prior domestic violence incidents.
4. The sentencing minute order and the abstract of judgment erroneously omit the trial court’s oral award of presentence custody credit.
We find no error affecting the conviction. The People concede the asserted error regarding presentence custody credit. Accordingly, we will direct the trial court to prepare a modified sentencing minute order and abstract of judgment.
I
FACTUAL BACKGROUND
A. Prosecution Evidence.
The victim, Brittany H., had known defendant for years. Around the end of May 2007, however, they “started getting serious.” According to Brittany, “[W]e started telling each other we were together.” Their relationship was both romantic and sexual. Although homeless, they were living together, at hotels and with friends — “wherever [they] could lay [their] heads . . . .”
Defendant’s acquaintance Christian Larson let defendant keep his clothes at Larson’s apartment in Palm Springs. Defendant and Brittany went to Larson’s apartment together “numerous times.” According to Brittany, they also spent the night there “a few times,” typically because they had gone over there and “just happened to fall asleep . . . .”^[1]
Larson assumed that Brittany was defendant’s “girl,” because “they seemed romantic enough.” They seemed like more than just friends. He saw them kissing and hugging.
On the night of July 14-15, 2007, Brittany was at the home of one Doug Aleman, smoking methamphetamine with him and others. In the wee hours, she received a series of phone calls from defendant; she told Aleman he was her boyfriend. Defendant told her to come back “home,” meaning to Larson’s apartment. After the phone calls, she told Aleman, “I need to go. I need to leave.” She asked him to drive her to her “boyfriend’s house.” She seemed “panicked.” He took her where she asked to go, which was Larson’s apartment complex.
When she entered the apartment, defendant was the only one there. They started arguing about where she had been, what she had been doing, and who had dropped her off.
Some time later, they got into a second argument about where defendant’s methamphetamine was. He accused Brittany of taking it. He walked to the closet where he kept his clothing, then came back with a gun. He pointed it at her face and said “if [she] didn’t give him back his dope, he was going to shoot.” She “told him . . . if he was going to shoot [her], to just do it.” He then lowered the gun and conceded, “[W]ell, I guess . . . you don’t have my dope. I probably misplaced it . . . .”
About two minutes later, however, as Brittany started to go outside, defendant asked, “[W]here are you going‌” She replied, “ . . . I was just going to step outside.” He said, “[F]uck that, I know you got it,” pointed the gun at her again, and shot her.
The bullet entered her right cheek and exited in front of her right ear, slicing her earlobe. Defendant started screaming, “Oh my god. I’m sorry.” Brittany “cared about him, and . . . didn’t want him to get in trouble for what happened.” She told him to “get his stuff and leave.” She then called 911.
At first, Brittany told police that she heard a noise outside; when she went out to check on it, she was shot by an unknown person. Then she said she had been shot while inside the apartment by her boyfriend; she gave his name as Zachary White.
The police found some blood droplets on the apartment floor. In a black duffel bag, inside a closet, they found a .22-caliber revolver, with one fired and five unfired cartridges. The duffel bag also contained prescription medicine for “R. Daniel.”
When Larson got home, he noticed a “hole” in the wall. One police officer noticed it, too, but characterized it as an “indentation.” A second officer did not notice it at all. The police looked for a bullet but did not find one. When they questioned the neighbors, none of them reported hearing a gunshot.
Roxanna W. dated defendant from February through June 2005 and again in 2007. They used methamphetamine together. She visited him at Larson’s apartment “[t]hree times maybe.”
In a phone call, defendant told Roxanna that he was “going away for a while” because he had shot Brittany in the face. She called the police department anonymously and reported this. Later, he also told Roxanna that he shot Brittany “[b]ecause he thought she was stealing his dope.”
Brittany was uncooperative with the police. At trial, she explained that she did not care for defendant any longer, but she was afraid of retaliation. The police were not able to recontact her until September 2008. In that interview, they told her that they knew it was defendant who shot her and that “she was shot because of the dope.” She then admitted that defendant was the shooter. However, she also said that the shooting was an accident.
In October 2008, for about a week, defendant shared a jail cell with Mario Moya. Moya testified that defendant told him about the shooting. Defendant explained that he had had half a pound of methamphetamine; he thought he had left it on a table, though in fact, he had left it under a couch. When he wanted to use it but could not find it, he thought that Brittany and two other men who were present had conspired to steal it. He pointed a .22-caliber gun at Brittany and fired. The bullet hit her in the right cheek and came out at her ear lobe.^[2] When defendant was telling this story, he was “laughing, joking. Like bragging about it.” He talked about it a couple of times a day, every day.
Defendant told Moya that Brittany had told him “that she loved him and that she wasn’t going to testify.” However, Moya also overheard a phone conversation in which defendant was asking someone to find Brittany.
2. Prior domestic violence incidents.
Roxanna testified that she and defendant used to get into arguments “[a]ll the time.”
On April 19, 2005, during one argument, defendant slapped Roxanna in the face. She hit him back. Defendant picked up a wooden chair, as if to throw it at her. She grabbed a “mini hatchet” and hit his hand with it. She was afraid for her life. She ran outside, screaming for help. She reported the incident to the police.
In a second incident, at the end of April 2005, during another argument, Roxanna pulled out a knife because she was scared. Defendant pulled out a knife, too, and held it close to her throat. She ran into the bathroom.
Documentary evidence was introduced that in 1998, defendant had pleaded guilty to aggravated assault and corporal injury of a cohabitant committed against one Olivia D.
B. Defense Evidence.
The only witness for the defense was Wade Wahlstrom. At the time of trial, Wahlstrom was in prison. He had two strike priors.
Wahlstrom had known defendant for over nine years and considered him “a really good friend.” In 2008, however, after the shooting, Wahlstrom met Brittany. They got engaged. They broke up in November 2008, when Wahlstrom was incarcerated.
Wahlstrom testified that Brittany once said that “she was going to set [defendant] up because he ruined her name on the street. She couldn’t get any more dope.” Supposedly defendant had told people she was a paid informant.
II
THE SUFFICIENCY OF THE EVIDENCE OF A DATING RELATIONSHIP
Defendant contends that there was insufficient evidence that he and Brittany had a dating relationship to support the enhancements under Penal Code section 12022.7, subdivision (e).
This type of enhancement applies to “[a]ny person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony . . . .” (Pen. Code, § 12022.7, subd. (e).)
“Domestic violence,” for this purpose, is defined as “abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.” (Pen. Code, § 13700, subd. (b), italics added; see also Pen. Code, § 12022.7, subd. (e).)
Penal Code section 12022.7 does not define a “dating relationship.” However, Penal Code section 243, which provides enhanced penalties for a battery committed against (among others) “a person with whom the defendant currently has, or has previously had, a dating or engagement relationship” (Pen. Code, § 243, subd. (e)(1)), goes on to define a “dating relationship” as “frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations.” (Pen. Code, § 243, subd. (f)(10).)
Similarly, Family Code section 6211 defines “domestic violence” as abuse committed against (among others) “[a] person with whom the respondent is having or has had a dating or engagement relationship.” (Fam. Code, § 6211, subd. (c).) Family Code section 6210 then defines a “dating relationship” for this purpose as “frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations.”
Defendant and the People concur that these definitions apply to Penal Code section 12022.7. The jury was so instructed.
“In reviewing a claim [regarding] sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence — that is, evidence that is reasonable, credible, and of solid value — supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the [trier of fact] reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]” (People v. Jennings (2010) 50 Cal.4th 616, 638-639.)
According to Brittany, as of the date of the shooting, she and defendant had been in “a dating relationship” for a month or two. The relationship was both romantic and sexual. Even though they were homeless, they were living together. According to Aleman, Brittany referred to defendant as her “boyfriend.” According to Larson, they appeared to be “romantic” and more than just friends; he saw them kissing and hugging. In July 2007, Brittany wrote a letter to defendant calling him “Babe”; she signed it with X’s and O’s.
Shortly before the shooting, defendant ordered Brittany to come back “home.” When she arrived, he argued with her about where she had been, what she had been doing, and who had dropped her off. Evidently he felt that he had some proprietary rights regarding her actions and associations. Brittany testified that she cared for defendant enough to lie to the police about who had shot her.
Finally, defendant told his cellmate Moya that he and Brittany were “[b]oyfriend and girlfriend.”
This was ample evidence that defendant and Brittany associated frequently and intimately for reasons of affection and sex — in sum, that they had a dating relationship.
Defendant focuses on isolated pieces of arguably contrary evidence. For example, Brittany testified that “it” was “a fling,” rather than “love.” Even a fling, however, is an affectionate and/or sexual relationship — just not a long-lasting one. “The definition of a dating relationship adopted by the Legislature does not require ‘serious courtship,’ an ‘increasingly exclusive interest,’ ‘shared expectation of growth,’ or that the relationship endures for a length of time. [Citation.]” (People v. Rucker (2005) 126 Cal.App.4th 1107, 1116.)
Defendant also points out that, according to Larson, he once brought Roxanna over to Larson’s apartment. Larson also testified, however, that he could not tell whether defendant and Roxanna were boyfriend and girlfriend. Similarly, Larson testified that defendant sometimes arrived at his apartment with more than one woman; however, Larson added, “I didn’t know what he did with these women, they could have been friends, I don’t know.” In any event, two people may be in a dating relationship, even though one of them is cheating on the other.
We therefore conclude that there was sufficient evidence that defendant and Brittany were in a dating relationship.
III
THE ADMISSION OF PRIOR INCIDENTS OF DOMESTIC VIOLENCE
UNDER EVIDENCE CODE SECTION 1109
A. Additional Factual and Procedural Background.
In its trial brief, the prosecution argued that defendant’s prior acts of domestic violence were admissible under Evidence Code section 1109.
Defense counsel apparently responded by sending the prosecutor citations to three cases (People v. Morton (2008) 159 Cal.App.4th 239, People v. Rucker, supra, 126 Cal.App.4th 1107, and People v. James (2000) 81 Cal.App.4th 1343). The prosecutor filed a further brief addressing these cases.
After an unreported discussion in chambers, the trial court excluded some of the proffered incidents, but it admitted the two incidents involving Roxanna that were ultimately shown at trial.
B. Statutory Background.
Evidence Code section 1109, subdivision (a)(1) provides: “[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.”
Evidence Code section 352, in turn, provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice . . . .”
C. The Constitutionality of Evidence Code Section 1109.
Defendant contends that Evidence Code section 1109 violates due process and equal protection.
1. Forfeiture.
Defendant forfeited this contention because he did not raise it on the record below. (Evid. Code, § 353, subd. (a); People v. Bolden (2002) 29 Cal.4th 515, 546-547.) Moreover, he did not raise any other objection on the record that would have required similar analysis. (See generally People v. Partida (2005) 37 Cal.4th 428, 433-439.) All of the discussion of this evidence took place off the record, in chambers; defense counsel did not ask to have any part of that discussion placed on the record. The brief comments that the trial court made when it admitted the evidence did not suggest that there had been any objection on constitutional grounds.
The Morton, Rucker, and James cases that defense counsel did evidently cite in no way suggested that Evidence Code section 1109 is unconstitutional. To the contrary, as we will discuss below, Rucker specifically held that it does not violate due process. (People v. Rucker, supra, 126 Cal.App.4th at p. 1120.)
Separately and alternatively, however, we will also consider defendant’s constitutional contentions on the merits.
2. Due process.
As defendant acknowledges, this court has already rejected a due process challenge to Evidence Code section 1109 (People v. Hoover (2000) 77 Cal.App.4th 1020, 1028-1029 [Fourth Dist., Div. Two]), as have our sister courts. (People v. Rucker, supra, 126 Cal.App.4th at p. 1120; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096; People v. Jennings (2000) 81 Cal.App.4th 1301, 1310; People v. Brown (2000) 77 Cal.App.4th 1324, 1332-1334; People v. Johnson (2000) 77 Cal.App.4th 410, 416-420.)
Defendant argues that these holdings are not good law in light of Cooper v. Oklahoma (1996) 517 U.S. 348 [116 S.Ct. 1373, 134 L.Ed.2d 498]. Cooper involved a due process challenge to state law that “the defendant in a criminal prosecution is presumed to be competent to stand trial unless he proves his incompetence by clear and convincing evidence. [Citation.]” (Id. at p. 350.) The court stated that “the relevant inquiry [i]s whether the presumption ‘“offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”’ [Citation.]” (Id. at p. 355.)
First, the court examined the historical practice, explaining that “‘[h]istorical practice is probative of whether a procedural rule can be characterized as fundamental,’ [citation].” (Cooper v. Oklahoma, supra, 517 U.S. at p. 356.) It noted that, traditionally, the state had to prove a defendant incompetent by a preponderance of the evidence. (Id. at pp. 356-360.)
Next, the court considered “whether the rule exhibits ‘“fundamental fairness” in operation.’ [Citation.]” (Cooper v. Oklahoma, supra, 517 U.S. at p. 362.) It found “a significant risk of an erroneous determination that the defendant is competent.” (Id. at p. 363.) “For the defendant, the consequences of an erroneous determination of competence are dire.” (Id. at p. 364.) “By comparison to the defendant’s interest, the injury to the State of the opposite error — a conclusion that the defendant is incompetent when he is in fact malingering — is modest.” (Id. at p. 365.) The court concluded that, in cases where the defendant could be proved incompetent by a preponderance, but not by clear and convincing evidence, “the defendant’s fundamental right to be tried only while competent outweighs the State’s interest in the efficient operation of its criminal justice system.” (Id. at p. 367.)
Defendant argues that, under the analysis in Cooper, Evidence Code section 1109 violates due process because it is inconsistent with historical practice and it violates fundamental fairness. In People v. Falsetta (1999) 21 Cal.4th 903, however, the California Supreme Court analyzed an analogous statute, using the exact same analytical framework as that in Cooper,^[3] but came to the opposite conclusion.
Falsetta involved a due process challenge to Evidence Code section 1108, which allows the prosecution to use evidence that the defendant has committed another sexual offense to prove a propensity to commit the charged sexual offense. (Evid. Code, § 1108, subd. (a).) Initially, our Supreme Court acknowledged that “[f]rom the standpoint of historical practice, unquestionably the general rule against admitting [propensity] evidence is one of long-standing application. [Citation.]” (People v. Falsetta, supra, 21 Cal.4th at p. 913.) “Yet a long-standing practice does not necessarily reflect a fundamental, unalterable principle embodied in the Constitution. [Citations.] . . . [E]ven before the adoption of section 1108, the rule against admitting evidence of the defendant’s other bad acts to prove his present conduct was subject to far-ranging exceptions [citations]. Legislative enactment of a further exception applicable in sex offense cases may not necessarily offend fundamental historical principles.” (Id. at p. 914.)
Alternatively, the court held that “even if the rule were deemed fundamental from a historical perspective, we would nonetheless uphold section 1108 if it did not unduly ‘offend’ those fundamental due process principles. [Citations.]” (People v. Falsetta, supra, 21 Cal.4th at p. 915.) It noted that the evidence was undoubtedly relevant: “ . . . ‘Such evidence “is [deemed] objectionable, not because it has no appreciable probative value, but because it has too much.” . . . [Citations.]’ [Citations.]” (Ibid.) “A properly instructed jury will . . . given the usual instructions regarding the presumption of defendant’s innocence and the prosecutor’s proof burden. Additionally . . . , at the defendant’s request, the jury may be told that evidence of his other sexual offenses is not sufficient by itself to prove his commission of the charged offense, that the weight and significance of the evidence, if any, is for the jury to decide, and that unless otherwise instructed, the jury may not consider this evidence for any other purpose. [Citation.] This instruction will help assure that the defendant will not be convicted of the charged offense merely because the evidence of his other offenses indicates he is a ‘bad person’ with a criminal disposition. [Citation.]” (Id. at p. 920.) Finally, if, in an individual case, the evidence would be unduly prejudicial, the trial court would be able to exclude it under Evidence Code section 352. (Falsetta, at pp. 916-921.)
Defendant claims “the flaw in this analysis is that propensity evidence always is unduly prejudicial to the defendant.” Falsetta, however, specifically rejected this argument: “We have no reason to assume, as defendant suggests, that “the prejudicial effect of a sex prior will rarely if ever outweigh its probative value to show disposition.” (People v. Falsetta, supra, 21 Cal.4th at p. 913.) It cited, as an example, People v. Soto (1998) 64 Cal.App.4th 966, in which “the court upheld the trial court’s discretionary decision to allow admission of the defendant’s prior sex offense. The court concluded the prior offense was not . . . ‘brutal, inflammatory conduct . . . ’ . . . , was similar in character to the charged offense, was not unduly remote, and was ‘extremely probative of appellant’s sexual misconduct when left alone with young female relatives.’ [Citation.]” (Falsetta, at p. 919.)
Defendant also argues that Falsetta is not controlling here because Evidence Code section 1109 is distinguishable from Evidence Code section 1108. Basically, he asserts that the rule against the use of propensity evidence in domestic violence cases is more fundamental than the rule against the use of propensity evidence in sex cases. In Falsetta, as noted, the court questioned whether the rule against the use of propensity evidence in sex cases was as fundamental as the rule against the use of propensity evidence in general. (People v. Falsetta, supra, 21 Cal.4th at p. 914.) It went on to hold, however, that even assuming the rule was fundamental, Evidence Code section 1108 did not violate due process. (Falsetta, at pp. 915-922.) Its reasoning in coming to the latter conclusion applies here.
In sum, then, nothing in Cooper suggests that we should depart from Falsetta or from our own decision in Hoover.
3. Equal Protection.
Defendant also argues that Evidence Code section 1109 violates equal protection because it “treats those accused of domestic violence offenses differently from other criminal defendants . . . .”
We reject this contention for the reasons already cogently stated in People v. Jennings, supra, 81 Cal.App.4th at pp. 1310-1313. (Accord, People v. Price (2004) 120 Cal.App.4th 224, 240; see also People v. Fitch (1997) 55 Cal.App.4th 172, 184-185 [Evid. Code, § 1108 does not violate equal protection].)
D. Abuse of Discretion.
Next, defendant contends that the trial court abused its discretion by admitting the prior domestic violence incidents, because they were more prejudicial than probative.
1. Forfeiture.
Once again (see part III.C.1, ante), defendant forfeited this contention because he did not raise it on the record below. (Evid. Code, § 353, subd. (a).)
And, once again, we also consider it, separately and alternatively, on the merits.
2. Analysis.
“By its incorporation of section 352, section 1109, subdivision (a)(1) makes evidence of past domestic violence inadmissible only if the court determines that its probative value is ‘substantially outweighed’ by its prejudicial impact. We review a challenge to a trial court’s decision to admit such evidence for abuse of discretion. [Citations.]” (People v. Johnson (2010) 185 Cal.App.4th 520, 531, fn. omitted.)
Defendant’s abuse of discretion argument basically just reiterates his argument that there was insufficient evidence that he and Brittany were in a dating relationship. (See part II, ante.) Thus, he argues that the jury may have been confused into thinking it did not have to determine whether a dating relationship existed. He also argues that, because he and Brittany were not in a dating relationship, the evidence was irrelevant.
Just as we have already rejected defendant’s insufficiency of the evidence argument, we reject this argument, too. Because the jury could reasonably find that defendant and Brittany were in a dating relationship, evidence of a propensity to commit domestic violence in a dating relationship was relevant.
We fail to see how the evidence could have led the jury to think it did not have to determine whether defendant and Brittany were in a dating relationship. The jury was specifically instructed that, for purposes of the enhancements under Penal Code section 12022.7, subdivision (e), it had to determine, beyond a reasonable doubt, whether the circumstances of the charged crime involved domestic violence. It was further instructed that domestic violence includes abuse committed against a person with whom the defendant is having a dating relationship, and it was instructed on the definition of dating relationship. (Judicial Council of California Criminal Jury Instructions No. 3163.)
Thus, we conclude that the trial court did not err by admitting the prior domestic violence incidents.
IV
OMISSION OF PRESENTENCE CUSTODY CREDIT
Defendant contends that the sentencing minute order and the abstract of judgment erroneously omit the trial court’s oral award of presentence custody credit. The People concede the error. We agree. Hence, we will direct the trial court to amend the sentencing minute order and the abstract of judgment.
V
DISPOSITION
The superior court clerk is directed to amend the sentencing minute order and the abstract of judgment so as to reflect the award of a total of 553 days of presentence custody credit (481 actual days, plus 72 days of conduct credit) and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. (Pen. Code, §§ 1213, 1216.) In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI
J.

We concur:


McKINSTER
Acting P.J.


MILLER
J.


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