P. v. Garcia

Filed 5/27/10 P. v. Garcia CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Ruben Anthony Garcia appeals from a judgment of conviction following his no contest plea. Counsel for defendant has filed an opening brief that states the case and facts but raises no issues. (See People v. Wende (1979) 25 Cal.3d 436.) Defendant, as he is entitled to do, filed his own letter brief; he filed two of them. We have, as required by Wende and People v. Kelly (2006) 40 Cal.4th 106, 110, 124, set forth herein the facts, the procedural background (including a description of the crimes of which defendant was convicted), and the disposition of defendants case; reviewed the entire relevant record; and considered defendants arguments.

We will affirm the judgment.

PROCEDURAL BACKGROUND AND FACTS

I. Facts

Because defendant pleaded no contest, we take the facts from the police and probation reports, the preliminary examination, portions of the clerks transcript, and a hearing on a motion to suppress evidence.

On the evening of June 1, 2008, defendants mother, Diana Garcia, was in her bedroom. She heard defendant outside the room. He was yelling something unintelligible. Defendant entered the room and shot his mother, firing at her three times.

Matthew Albert DeLaCruz was in a nearby bedroom. He heard the shots, opened his door, and saw a bleeding Garcia, who said that her son had just shot her. DeLaCruz saw defendant trying to unjam a gun.

DeLaCruz and his brother took Garcia to the hospital. At the hospital a police officer inspected her condition and discovered three gunshot wounds, causing trauma to her upper lip, her chin area, cheek and near her ear as well as her left forearm and her right thumb. Hollister Police Department Detective Don Pershall found two or three teeth on the bedroom floor.

The probation report related the victims description of her injuries. The injuries she sustained were a bullet that went right through her left arm, which did not cause further complications. Her upper and lower lips and chin had very large lacerations on them that had been sutured closed. She lost all her teeth on the right side of her face. She was scheduled for surgery on her right thumb to remove bullet fragments.

Defendant was arrested on June 3, 2008, and taken to jail. At the time of his arrest he made an inculpatory statement to police, which we describe in the procedural background section below.

Defendant told his probation officer that he began using marijuana at age 13, alcohol at age 15, and methamphetamine at age 16. The probation officer reported assertions the victim made to the authorities while hospitalized that defendant was mentally ill and had been using drugs episodically for years. She reportedly characterized defendant as very paranoid; he hears voices, and believed people were out to get him. He also believed [that] his step-father, who was in prison for molesting another child, had molested his daughter.

II. Procedural Background

An amended information, filed on May 4, 2009, charged defendant with willful, premeditated and deliberate attempted murder (Pen. Code, 187, 189, 664).[1] The information alleged a second-strike serious felony prior conviction under the Three Strikes law ( 667, subd. (e)(1), 1170.12, subd. (c)(1)) and three gun-use enhancements of increasing seriousness ( 12022.53, subds. (b), (c), & (d)).

Proceedings had begun earlier, of course; a felony complaint against defendant was filed on June 5, 2008. On February 13, 2009, defendant filed a motion to suppress evidence pursuant to section 1538.5, namely a statement he made to Hollister Police Department Detective Jeffrey Caires while confined in the back seat of a patrol car after his arrest. The motion contended that the police obtained defendants statement in violation of Miranda v. Arizona (1966) 384 U.S. 436. Specifically, the motion asserted, Detective Caires began questioning him without reading him his rights[;] therefore any statements attributed to [defendant] must be suppressed.

At a hearing on the motion, held on March 4, 2009, Detective Caires testified that police learned of defendants whereabouts and spent about 2.5 hours coaxing him out of a house. Defendant emerged and was placed into custody. With defendant sitting in the detectives patrol car, the detective asked him for permission to interview him. The detective thought he might have uttered words to the effect of  Do you want to speak to me?   [b]ecause I need to know where Im going to take you.  The detective did not intend to question defendant substantively, but only to ascertain whether defendant would agree to be interrogated, which would determine the detectives next step. If hes interested in speaking to me in regards to . . . the case, then I would have transported him back to the Hollister Police Department . . . and proceeded with an interview and interrogation, with Miranda being the first thing brought up. If he declined it, then I knew I could just transport him straight to the San Benito County Jail and book him. It was just to determine where I needed to go.

Defendant, however, answered by uttering substantive spontaneous remarks. He said, according to Detective Caires:  My mother is a bitch[; y]ou dont know what she did to me or my kids. Something had to be done. Im [expletive] in the head because of her. I know what I did, but its her, not me. 

The trial court commented that I dont see that this constitutes an interrogation and ruled that there was no custodial interrogation under the circumstances. It denied the motion.

On July 13, 2009, the trial court held a closed ex parte hearing to consider defendants motion to replace his counsel. (People v. Marsden (1970) 2 Cal.3d 118.) The court denied the motion.

Portions of the Marsden hearing are relevant to the appeal and we will quote them while maintaining undisclosed others portions not bearing on defendants claims. Defendant asserted: There was a four-year plea deal . . . offered to me that was authorized by the district attorney and the judge of which I was misadvised by counsel to reject the offer of those proceedings. If it wasnt for counsels lack of participation, I would have taken the offer. Defendant further stated that on learning of the district attorneys intentions, counsel came in and . . . advised me that were not taking it. I would have definitely took it at the time, defendant added.

The trial court responded that it had spoken with counsel for the parties about this issue in anticipation of the Marsden hearing and they had explained that there was a misunderstanding. Your attorney thought it was a four-year straight deal, and the deputy district attorney had an implied [10]-year enhancement added to it.

The record suggests that defense counsel, acting on the parties misunderstanding about the agreements terms, communicated to defendant that it was for four years total. Counsel told the trial court that a miscommunication with the [district attorney]s office had occurred. Counsel did not recall advising defendant to reject a four-year offer.

The trial court told defendant that the court cant impose an agreement where no agreement has been agreed to and ruled against replacing counsel on the basis of this complaint.

Defendant also told the trial court during the Marsden hearing that he had communicated by phone and facsimile information to defense counsel that counsel did not act on. In the preliminary examination, held on October 9, 2008, as Detective Caires was testifying about the voluntariness of statements defendant made from the back seat of the police car, defense counsel objected on Miranda grounds. The magistrate overruled the objection at that time. Defendant asserted during the Marsden hearing that he sent a facsimile regarding this issue on October 14, 2008, and received no response. Defendant explained to the court that he had wanted counsel to challenge Detective Cairess assertion that I made some spontaneous statements. [T]he question, defendant continued, was whether the officer had questioned me before that, questioned me before Miranda kicked in . . . . [T]hose are the things that I was trying to put across to Mr. LaForge, defendant summarized, referring to defense counsel Gregory M. LaForge, because that would have made a great deal of difference and those never got brought up.

Counsel replied, We did everything he asked. Because the preliminary examination had already occurred when defendant assertedly advised counsel that Detective Caires was interrogating him as he sat in the police car, counsel must have been referring to the later hearing on the motion to suppress, which dealt with this issue, i.e., whether defendants statements were procured in violation of Miranda. In that hearing, however, counsel did not ask Detective Caires whether it was true that he had interrogated defendant substantively before reading him his Miranda rights.

At another point during the Marsden hearing, defendant told the trial court that counsel was inattentive to his case. [T]his is a serious case and it needs more attention than it has been getting . . . . I have made a number of requests to meet with him before important court dates . . . and I never got any type of response at any[ ]time. The only time Ive seen Mr. LaForge outside of court was . . . July 9th and 10th for . . . [40] minutes for both days . . . .

Counsel was aware that defendant was facing life imprisonment. He responded that he had been preparing the case for more than a year and that defendant could call his office at any time via a tie line between the jail and his office. Defendant responded that counsel did not return numerous phone calls he made via that dedicated line and had ignored a number of facsimile transmissions as well. Counsel acknowledged that he had seldom personally visited defendant in jailhes correct about thatbut [m]y investigator has been out there and seen him numerous other times, talking to Mr. Garcia regarding this case.

The trial court denied defendants Marsden motion. Before ruling it commented, I would see no benefit in appointing a different attorney for you. . . . He or she would need to begin trial preparation all over again and . . . Mr. LaForge is as ready to go to trial as any attorney is going to be. Moreover, changing an attorney isnt going to impact what the witnesses are going to say.

Defendant then accepted a plea agreement. On July 13, 2009, the same day as the adjudication of his Marsden motion, he pleaded no contest to one count of simple mayhem ( 203) and admitted the least onerous gun-use enhancement allegation ( 12022.53, subd. (b)). On September 30, 2009, in conformance with the plea agreement, defendant was sentenced to 12 years in prison, consisting of the mitigated two-year term for mayhem ( 204) and 10 years for the gun-use enhancement. Against this sentence, the court gave defendant 553 days of custody credit, consisting of 481 actual days of confinement in jail and 72 days of local conduct credit.

The parties reached the plea agreement on July 13, 2009, the day voir dire of prospective jurors was to begin, but not without difficulty. At first the parties were going to have defendant plead guilty to a felony charge of assault with a firearm ( 245, subd. (a)(2)) (presumably the initial information, which was filed on November 4, 2008, and alleged attempted murder but not aggravated assault, would have been amended accordingly) and have that conviction constitute a second strike under the Three Strikes law. Then the proceedings paused for a few moments and defense counsel announced an impasse, one apparently involving the offer from the [district attorney] since March. The problem, the prosecutor explained, was that the 245 doesnt work with a [10]-year enhancement, which is why we talked about a mayhem. . . . Were prepared to go to trial right now. Defense counsel urged that the parties be allowed to take a little more time if the court is willing to do that. The court replied, Thats not a problem.

After a recess, the trial court asked, Did you reach agreement? and the prosecutor replied Yes. Then the taking of defendants no contest plea proceeded smoothly.

At the sentencing hearing, held on September 30, 2009, defendant exercised his right of allocution and stated: Just a couple of things I would like to say. I do feel that thethat there is insufficient evidence to apply the enhancement. I feel that it was vindictive and he abused his discretion in applying it. There was a deal of a 203 Penal Code [simple mayhem] and a [Penal Code section] 245 [assault with a firearm] that was offered, and it wasnt until it was rejected that he applied the enhancement and we were already going to trial. Counsel for both parties disagreed on the record with defendant. Defense counsel stated, Judge, for the record, we werent given that offer by [the prosecutor]. I want it clear on the record if there [are] any further issues regarding appeal that [it] was not offered. The prosecutor joined in: Thats correct, Your Honor[;] there was no such offer.

DISCUSSION

Defendant raises a series of claims in his two handwritten briefs.

Some of defendants claims are claims of ineffective assistance of counsel. We set forth the applicable law.

Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the effective assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) The ultimate purpose of this right is to protect the defendants fundamental right to a trial that is both fair in its conduct and reliable in its result. (Ibid.) A claim of ineffective assistance of counsel in violation of the Sixth Amendment entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) The Strickland standards also apply to any claim by a defendant under article I, section 15 of the California Constitution. (E.g., People v. Waidla (2000) 22 Cal.4th 690, 718.) We assume that defendant has made both claims.

If the record sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.  (People v. Ledesma (2006) 39 Cal.4th 641, 746.) In such a case, however, the claim may be raised in a habeas corpus petition (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267) if defendant is able to plead precise facts that, if proven, would entitle him to relief.

I. Counsels Failure to Introduce Evidence of Detective Cairess Assertedly Improper Questioning of Defendant in the Police Car

Defendant claims in substance that he received ineffective assistance of counsel because counsel assertedly ignored a facsimile transmission he sent to counsel telling him that Detective Caires had substantively interrogated him while he was confined in the police car and that defendant had made no inculpatory statements in any event.

Miranda v. Arizona, supra, 384 U.S. 436, requires courts in criminal cases to exclude, at least from the prosecutions case-in-chief, self-incriminatory statements made by the accused during custodial interrogation unless the accused has knowingly and voluntarily waived the Fifth Amendment privilege against self-incrimination, which in this context includes the rights to silence and the assistance of counsel. (People v. Lessie (2010) 47 Cal.4th 1152, 1156.)

Defendant states: Before the Miranda hearing I had faxed and verbally expressed to Mr. LaForge questions that violate my rights under Miranda from Officer Caires . . . . Officer Caires[s] statements were never . . . brought up as part of my defense. . . . If Officer Caires[s] questions were introduced to the courts it would have made a great deal of difference in my defense with a different outcome in the hearing . . . .

Defendant attaches to his letter brief a document purporting to be an official San Benito County Corrections Bureau Inmate Request Form. On the form, defendant requested on October 14, 2008, that LaForge be sent the following information: While sitting in [the] backseat of the police vehicle [O]fficer Caires asked me Why dont you tell me whats going on? I cant help you unless you tell me. And for the record I did not and would not say My moms a bitch, Something had to be done, and thats why I did it.  The document bears a stamp representing that its content was transmitted by facsimile on that same day.

The record shows that counsel did not ask Detective Caires about these allegations at the Miranda-based evidence suppression hearing of March 4, 2009.

Ordinarily, an argument that a no contest plea resulted from ineffective assistance of counsel would be a challenge to the validity of the plea and, without a certificate of probable cause (which was not sought), is not entertainable on appeal. (People v. Stubbs (1998) 61 Cal.App.4th 243 [claim of ineffective assistance that occurred prior to the plea concerned pleas validity and could not be raised on appeal absent certificate of probable cause].) In this case, however, the notice of appeal states, accurately, that defendant would appeal on the basis of an adverse decision on his motion to suppress ( 1538.5) and we must proceed to consider it on the merits. (People v. Shelton (2006) 37 Cal.4th 759, 766;  1538.5, subd. (m); Cal. Rules of Court, rule 8.304(b).) Doing so, we conclude that defendant is not entitled to relief on direct appeal.

First, we cannot consider the San Benito County Corrections Bureau Inmate Request Form on which Detective Caires purportedly exhorted defendant to confess, asking him  Why dont you tell me whats going on? I cant help you unless you tell me.  Ineffective assistance of counsel claims, as with other claims on a direct appeal, may rely only on the four corners of the record (People v. Cunningham (2001) 25 Cal.4th 926, 1003)that is, an appellate court cannot consider extraneous documents at this stage. It is in the submission of a petition for writ of habeas corpus that a prisoner may, and indeed should, provide such documentation and a court will consider it.

We are left, then, with the Marsden hearing at which defendant raised this issue. At that hearing, defendant did not quote Detective Cairess purported questions. He stated in general terms that he did ask me questions and those are the things that I was trying to put across to Mr. LaForge. But that was not enough to clue either the trial court or counsel at the Marsden hearing that counsel could have done anything more than he did both at the preliminary examination and during the Marsden hearing, which was to challenge the admission of defendants statement on the ground that it violated Miranda based on general principles that Miranda renders inadmissible statements made under custodial interrogation before suspects have been advised of their rights. Counsel acted on that principle and, on this record, cannot be faulted for doing even more.

II. Counsels Failure to Complete a Plea Agreement That Would Have Resulted in a Four-year Sentence

Next, defendant claims ineffective assistance of counsel because counsel failed to accept a purported plea agreement calling for four years imprisonment that the prosecutor offered and instead urged defendant to hold out for an even better resolution. On March 11, 2009, at the trial confirmation hearing . . . [an] offer was made . . . . At that time Mr. LaForge advised me to reject the offers [sic] and wait assuming the deal was going to get better. [Citation.] A few days after that I was advised by . . . Mr. LaForge that the plea bargain deal was now a 245 [assault with a firearm] with a ten year gun enhancement. . . . I told LaForge to get the [district attorney] to drop the enhancement and go back to the 4 year offer and Ill take it. But LaForge was unable to secure an agreement for a maximum four-year sentence.

Even if counsel was deficient for not advising defendant to accept what counsel and defendant may have believed was an agreement for a four-year prison term, there was no ineffective assistance of counsel because defendant was not prejudiced by any such deficiency. The record shows that the prosecutor never intended to offer a four-year maximum sentence for defendants grave criminal conduct and would not have acceded to any representation by counsel that defendant would accept a four-year term.

Defendant also argues that he was coerced into pleading no contest to the enhancement allegation on the strength of counsels representation that he would challenge the enhancement on appeal. The record, however, shows no evidence of any such coercion and on direct appeal there is no basis for defendants claim.

III. Prosecutors Purported Abuse of Discretion in Failing to Honor a Plea Agreement That Would Have Resulted in a Four-year Sentence

Defendant claims that because [t]here is no physical evidence linking me to personal use of a firearm the prosecutor abused his discretion in insisting that a 10-year gun use enhancement be applied on top of the purported four-year plea agreement.

We may not entertain this claim on appeal. The parties to a plea agreement are free to make any lawful bargain they choose. (People v. Buttram (2003) 30 Cal.4th 773, 785.) [A]n appeal following conviction on a guilty or no-contest plea must be dismissed absent a certificate [of probable cause] if, in substance, it challenges the validity of the plea. [Citation.] It does so if the sentence was part of a plea bargain.  (Id. at pp. 784-785.) Defendant did not obtain a certificate of probable cause and may not complain on appeal about the plea bargains terms. Moreover, [i]t is well settled that the prosecuting authorities, exercising executive functions, ordinarily have the sole discretion to determine whom to charge with public offenses and what charges to bring. [Citations.] This prosecutorial discretion to choose, for each particular case, the actual charges from among those potentially available arises from  the complex considerations necessary for the effective and efficient administration of law enforcement.  [Citations.] The prosecutions authority in this regard is founded, among other things, on the principle of separation of powers, and generally is not subject to supervision by the judicial branch. (People v. Birks (1998) 19 Cal.4th 108, 134.) Defendant does not show any kind of improper prosecution and his claim would fail on the merits in any event.

IV. Counsels Failure to Consult Sufficiently With Defendant and Prepare the Case Adequately for Trial

Defendant argues that he received ineffective assistance of counsel because counsel failed to consult with him sufficiently and to prepare the case adequately for trial. The record, however, belies these assertions. Counsel told the trial court during the Marsden hearing, in response to defendants complaints of the same nature that his investigator had communicated regularly with defendant in jail. Counsel implied that his office was receiving messages defendant would leave on the tie line between the jail and counsels office. Although counsel did not deny that he might not return those phone calls and admitted that he seldom visited defendant in jail, the record shows that he protected defendants interests by communicating with him, doing so mainly through counsels investigator. Nothing on this record belies counsels assertions, which were made as an officer of the court to the trial court. On direct appeal defendant fails to establish ineffective assistance of counsel on this ground.

V. Denial of Motion to Replace Counsel

Defendant claims that the trial court erred in denying his motion to replace counsel under People v. Marsden, supra, 2 Cal.3d 118.

Defendants claim is foreclosed by his no contest plea. [A]ny errors were waived by his guilty plea. . . . The claimed Marsden error does not go to the legality of the proceedings resulting in the plea. [Citations.] The defendant is thus foreclosed from raising that issue on appeal. (People v. Lobaugh (1987) 188 Cal.App.3d 780, 786.)

In any event, defendants claim would fail. Replacing counsel lies within the courts discretion. The court does not abuse its discretion in denying [a Marsden] motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendants right to assistance of counsel.  (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1003.) Defendant is unable to show such a substantial impairment here. Counsel was prepared to go to trial and was able to negotiate a sentence of 12 years for defendant, who was facing life imprisonment on the attempted murder charge ( 664, subd. (a)) alone. Counsel did not ignore defendant although he did not interact much with him personallyrather, he ensured that his investigator communicated regularly with defendant. The trial court did not abuse its discretion in observing that counsel would be able to prepare the case as well as any other available counsel and predicting that the witnesses would provide the same testimony under the examinations of whomever defended defendant.

VI. Presentence Custody Credits

Defendant claims that he was entitled to 17 months presentence credit for his days in custody in county jail and received less than that.

Defendant was arrested on June 3, 2008, and taken to jail. He was sentenced on September 30, 2009, and received 481 days of confinement credit along with 72 days of conduct credit, for a total of 553 days. According to the probation report, he was in custody continuously, which under section 4019 would amount to 485 days actual confinement, but six of those days were spent in service of another term, costing him four days credit.

At sentencing defendant did not object to this calculation; in fact his counsel and the prosecutor stipulated to the 553 days presentence credit. We are uncertain whether his claim was preserved for review. (Cf. In re Sheena K. (2007) 40 Cal.4th 875, 887 [An obvious legal error at sentencing that is correctable without referring to factual findings in the record or remanding for further findings is not subject to forfeiture].)

In anticipation of a later claim in a petition for writ of habeas corpus, and because the forfeiture question is  close and difficult  (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1007, fn. 8) we will address the issue on the merits.

Doing so, we find no error and reject the claim on the merits. The calculations are accurate. Moreover, a recent change in the law does not benefit defendant. With regard to conduct credits, this court held earlier this month that the Legislatures recent decision to increase the amount of conduct credit is not retroactive. At the time [defendant] was sentenced in September [of 2009], section 4019 provided that a defendant could accrue conduct credit at a rate of two days for every four days of actual presentence custody. (Former  4019 [Stats. 1982, ch. 1234,  7, pp. 4553-4554].) The statute was amended effective January 25, 2010, to provide that a qualifying defendant may accrue conduct credit at a rate of four days for every four days of presentence custody. (People v. Hopkins (2010) __ Cal.App.4th __, __ [2010 Cal.App.Lexis 657, *15], fn. omitted.) We concluded, the presumption against retroactivity embodied in [the Penal Code] is not rebutted and the amendment to section 4019 applies prospectively only. (Id. at p. __ [2010 Cal.App.Lexis 657, *22].)

VII. Claim of an Unauthorized Sentence

Defendant claims that the ten-year gun-use enhancement is unauthorized because section 12022.53 requires that the perpetrator be a member of a criminal street gang and there is no evidence that he has ever been a gangster.

We will treat this assertion as a due process claim of insufficient evidence to sustain the allegation. Under the federal Constitutions due process clause, there is sufficient evidence to support the judgment if, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found true the elements set forth in the statutory enhancement provision beyond a reasonable doubt. (See People v. Alvarez (1996) 14 Cal.4th 155, 224-225.) The same standard applies under article I, section 15, of the California Constitution. (See People v. Berryman (1993) 6 Cal.4th 1048, 1083, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)

Because of defendants no contest plea we are barred from considering his claim. By entering his plea, defendant admitted the sufficiency of the evidence establishing the crime and is not entitled to review of any issue directed to that question. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.)

In any event, defendant misunderstands the statute. Subdivision (b) of section 12022.53 applies to anyone who, like him, personally used a gun. The subdivision specifies: Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a) [including mayhem under section 203], personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply. (Italics added.) That is also true of subdivision (d) thereof, which applies to anyone who personally uses a gun and causes great bodily injury. That subdivision carries a consecutive prison term of 25 years to life, and defendant is fortunate that his counsel was able to persuade the prosecutor to lay aside that allegation. Subdivision (e) of section 12022.53, which defendant refers to, applies not to him but to gang members, and in any event it broadens the class of people subject to criminal liability to include not just the actual shooter but any principal (id., subd. (e)(1); see  31) in the commission of the crime. Therefore, defendants claim would fail on the merits in any event.

VIII. State of the Record

Our own review of the entire relevant record discloses no other arguable issue on appeal.

For the foregoing reasons, we will affirm the judgment.

DISPOSITION

The judgment is affirmed.

___________________________________

Duffy, J.

WE CONCUR:

______________________________________

Bamattre-Manoukian, Acting P. J.

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Mihara, J.

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[1] Further statutory references are to the Penal Code unless otherwise stated.