P.v. Halsey

 

 

 

 

 

 

 

 

 

 

Filed 7/23/13 
P.v. Halsey CA5

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT

 
>

THE PEOPLE,               Plaintiff and Respondent,                           v.   ERIC DAVID HALSEY,               Defendant and Appellant.

F064488   (Super. Ct. No. 10CM1123)   O P I N I O N

 

THE COURThref="#_ftn1" name="_ftnref1" title="">^*

            APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Kings County.  Thomas DeSantos, Judge.

            Benjamin
Owens, under appointment by the Court of Appeal, for Defendant and Appellant.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne LeMon
and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

            Pursuant to a plea agreement, appellant, Eric David
Halsey, pled no contest to felony child abuse (Pen. Code,href="#_ftn2" name="_ftnref2" title="">^[1] § 273a, subd. (a)) and admitted an enhancement
allegation that in committing that offense he personally inflicted great bodily
injury (§ 12022.7, subd. (d)).  The
court imposed the agreed-upon sentence of eight years and ordered that
appellant pay, inter alia, victim restitution in the amount of $264,836.57,
pursuant to section 1202.4.href="#_ftn3"
name="_ftnref3" title="">^[2] 

            On appeal,
appellant contends a portion of the amount of victim restitution
ordered—$261,236.57—is not supported by substantial
evidence.href="#_ftn4" name="_ftnref4"
title="">^[3]  We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Instant Offense

            The factual basis for
appellant’s plea was established by a stipulation by the parties that on
September 29, 2009, appellant was dating the mother of C., a two-year-old girl,
and that the People would have produced evidence at trial that on that date,
appellant “physically abused” C., causing “injuries ... that ... ultimately
would have been life-threatening had she not received immediate href="http://www.sandiegohealthdirectory.com/">medical treatment ....” 

The Restitution Award

            Attached to
the report of the probation officer are what the probation officer identifies
as “copies of medical bills,” consisting of 22 pages of documents, each of
which bears the notation “CHILDREN’S HOSPITAL CENTRAL CALIFORNIA” (the
hospital), indicating total charges of $261,236.57 for medical services
provided to C. 

            At the
sentencing hearing, the court stated it had “looked at the reports and the
medical request,” and that the court anticipated an offer of proof that C.’s
father had paid $3,600 in “co-payments for weekly counseling sessions.”  The court asked defense counsel, “As far as
[the amount requested], is [appellant] disputing that any of the attached
medical bills were not for the benefit of the child?”  Counsel responded, “No, your Honor.  We’ll submit it on the evidence.”  Thereafter, the court discussed the basis for
its ruling and asked defense counsel if he wished to comment.  Counsel declined. 

DISCUSSION

            Appellant contends the court
erroneously based the restitution order on “the hospital’s bills” rather than
on “the amount paid by the insurer,” and therefore the restitution award was
not supported by substantial evidence. 
Appellant further argues that if information as to the amount paid by
“the insurer” was not available at the time of sentencing, “the court should
have ordered the amount of restitution to be determined at a later date,” and
that “[t]he appropriate remedy is to remand the case for a proper determination
of the amount of restitution ....” 

Forfeiture

            The People
contend appellant has forfeited his sufficiency-of-the-evidence challenge to
the restitution award by failing to raise it below.  We agree. 
In People v. Brasure (2008) 42
Cal.4th 1037, 1074-1075 (Brasure),
the defendant challenged a victim restitution order on the ground that the
victim’s loss “was not shown by documentation or sworn testimony.”  In holding that the defendant had not
preserved the contention for appeal, our Supreme Court stated:  “[B]y his failure to object, defendant
forfeited any claim that the order was merely unwarranted by the evidence, as
distinct from being unauthorized by statute. 
[Citation.]  As the order for
restitution was within the sentencing court’s statutory authority, and defendant
neither raised an objection to the amount of the order nor requested a hearing
to determine it [citation], we do not decide whether the court abused its
discretion in determining the amount.”  (>Id. at p. 1075.)  Here too, as appellant does not dispute, he
neither objected to the restitution award nor requested a hearing on the
matter.  Under Brasure, appellant has forfeited his sufficiency-of-the-evidence
challenge to the restitution order.

            Appellant
takes issue with the foregoing analysis and conclusion.  He argues his claim is not forfeited because
the restitution order was “legally unauthorized.”  He bases this contention on> the “unauthorized sentence” exception
to the general forfeiture rule, articulated in People v. Scott (1994) 9 Cal.4th 331 (Scott).

            In >Scott, our Supreme Court stated:  “[T]he ‘unauthorized sentence’ concept
constitutes a narrow exception to the general requirement that only those
claims properly raised and preserved by the parties are reviewable on appeal....  [¶] 
[A] sentence is generally ‘unauthorized’ where it could not lawfully be
imposed under any circumstance in the
particular case.  Appellate courts are
willing to intervene in the first instance because such error is ‘clear and
correctable’ independent of any factual issues presented by the record at
sentencing....  [¶]  In essence, claims deemed waived on appeal
involve sentences which, though otherwise permitted by law, were imposed in a
procedurally or factually flawed manner.”  (Scott,
supra, 9 Cal.4th at p. 354, fn.
omitted, italics added.) 

            It is not
the case that the restitution order here could not be imposed “under any
circumstances” in the instant case.  (>Scott, supra, 9 Cal.4th at p. 354.) 
Appellant’s argument that the court based the restitution order on the
amount of the hospital’s bills rather than on the amount paid by the insurer is
in essence a claim that the order was “factually flawed.”  (Ibid.)  Thus, the restitution award was not
unauthorized.

            Appellant
also contends his claim is properly before us by virtue of the fact that he is
raising a claim of insufficiency of the evidence.  In support of this contention, he relies
chiefly on In re K.F. (2009) 173
Cal.App.4th 655 (K.F.), where the
court held that an appellate challenge to a restitution award under Welfare and
Institutions Code section 730.6, “which is the parallel provision [to
restitution requirements for adult offenders] applicable to juvenile offenders”
(In re Anthony M. (2007) 156
Cal.App.4th 1010, 1016 (Anthony M.)),
was cognizable on appeal even though the claim had not been raised in the
juvenile court.  The appellate court
relied on the principle that “[s]ufficiency of the evidence has always been
viewed as a question necessarily and inherently raised in every contested trial
of any issue of fact, and requiring no further steps by the aggrieved party to
be preserved for appeal.”  (>K.F., at pp. 660-661.)

            The court
acknowledged the holding of Brasure
on the forfeiture issue but noted that Brasure
“was a capital murder case in which the court dealt with at least a dozen major
contentions before reaching the one relevant here” (K.F., supra, 173
Cal.App.4th at p. 660), and stated that Brasure
could not be read “as a repudiation or abandonment of the rule ... that no
predicate objection is required to challenge the sufficiency of the evidence on
appeal” (K.F., at p. 661).  “The Supreme Court itself,” appellant
asserts, “explicitly reaffirmed the stated rule in People v. Butler (2003) 31 Cal.4th 1119, 1126.”  (Ibid.)  However, the very recent case of >People v. McCullough (2013) 56 Cal.4th
589 (McCullough), which was decided
after initial briefing was completed in the instant case, refutes this view of >People v. Butler, supra, 31 Cal.4th 1119 (Butler)
and leads us to a different conclusion.href="#_ftn5" name="_ftnref5" title="">^[4] 

            In >McCullough, the defendant argued that
the evidence did not establish he had the ability to pay a $270.17 jail booking
fee.  (McCullough, supra, 56
Cal.4th at pp. 590-591.)  The California
Supreme Court agreed that under the statute in question appellant had the right
to a determination of ability to pay (id.
at pp. 592-593), but the court held the defendant forfeited his challenge to
the sufficiency of the evidence to support the fee because he did not object
when the court imposed it (id. at p.
591).  The Supreme Court rejected the
defendant’s argument that “his challenge [came] within the general rule that
‘“a judgment ... not supported by substantial evidence”’ may be challenged for
the first time on appeal” (id. at p.
593) and that the Supreme Court should “simply ‘… follow Butler’” (id. at p. 596).

            The court
in McCullough found >Butler inapposite.  The court explained:  “In Butler,
we held that ‘a defendant may challenge the sufficiency of the evidence’ to
support imposition of an involuntary HIV testing order [under section 1202.1]
‘even in the absence of an objection.’ 
[Citation.]  Our analysis flowed
from our recent sentencing forfeiture cases; we would review an appellate challenge
not based on a contemporaneous objection if the trial court had been acting in
excess of its authority.  ‘Just as a
defendant could appeal an HIV testing order, without prior objection, on the
ground he had not been convicted of an enumerated offense [citations], he
should be able to do so on the ground the record does not establish the other
prerequisite, probable cause.’”  (>McCullough, supra, 56 Cal.4th at p. 595.)

            The court
noted that in Butler, it had
“confronted the apparent problem that the factual component of a probable cause
finding seemed to place it outside the rule that we will only review for the
first time on appeal ‘“clear and correctable error”’ that is ‘independent of
any factual issues presented by the record.’ 
(Scott, supra, 9 Cal.4th at p. 354.)” 
(McCullough, >supra, 56 Cal.4th at p. 595.)  However, the court “observed that the issue
presented in Butler extended beyond
mere disagreement over the import of certain facts” because “‘Probable cause is
an objective legal standard—in this case, whether the facts known would lead a
person of ordinary care and prudence to entertain an honest and strong belief
that blood, semen, or any other bodily fluid capable of transmitting HIV has
been transferred from the defendant to the victim.’”  (McCullough,
at p. 595.)

            In >McCullough, the defendant’s challenge to
the booking fee on the ground that the evidence did not support the conclusion
he had the ability to pay the fee presented a different situation.  The court “conclude[d] that defendant’s
ability to pay the booking fee here does not present a question of law in the
same manner as does a finding of probable cause.  Defendant may not ‘transform ... a factual
claim into a legal one by asserting the record’s deficiency as a legal
error.’  [Citation.]  By ‘failing to object on the basis of his
[ability] to pay,’ defendant forfeits both his claim of factual error and the
dependent claim challenging ‘the adequacy of the record on that point.’  [Citations.] 
...  [W]e hold here that because a
court’s imposition of a booking fee is confined to factual determinations, a
defendant who fails to challenge the sufficiency of the evidence at the
proceeding when the fee is imposed may not raise the challenge on appeal.”  (McCullough,
supra, 56 Cal.4th at p. 597.)

            Thus, >McCullough makes clear that >Butler found the claim raised there not
forfeited because it presented a question of law, and that the >Butler court did not, as the court in >K.F., supra, 173 Cal.App.4th at p. 661 stated, “explicitly reaffirm[] the
... rule” that “no predicate objection is required to challenge the sufficiency
of the evidence on appeal.”  The question
that remains is:  Does the reasoning
underlying McCullough’s conclusion
that a challenge to the sufficiency of the evidence supporting a jail booking
fee cannot be raised for the first time on appeal apply to the
sufficiency-of-the-evidence challenge to the restitution order here?  We conclude it does.

            As
indicated above, the key to the court’s holding was that the claim before the
court was a factual one.  The court held
that claim could not be raised for the first time on appeal “>because a court’s imposition of a
booking fee is confined to factual
determinations ....”  (>McCullough, supra, 56 Cal.4th at p. 597, italics added.) 

            The court
found support for its conclusion in Scott.  The court noted:  It had “determined [in Scott] that the requirement that a defendant contemporaneously
object in order to challenge the sentencing order on appeal advanced the goals
of proper development of the record and judicial economy.  Given that imposition of a fee is of much
less moment than imposition of sentence, and that the goals advanced by
judicial forfeiture apply equally here, we see no reason to conclude that the
rule permitting challenges made to the sufficiency of the evidence to support a
judgment for the first time on appeal ‘should apply to a finding of’ ability to
pay a booking fee under Government Code section 29550.2.”  (McCullough,
supra, 56 Cal.4th at p. 599.) 

A restitution award, like the
booking fee at issue in McCullough,
is “confined to factual determinations” (McCullough,
supra, 56 Cal.4th at p. 597) and is
of less moment than the imposition of a prison sentence, which results in the
denial of personal liberty.  Therefore,
under McCullough, the rule permitting
sufficiency-of-the-evidence challenges for the first time on appeal should not
apply to restitution awards. 
Notwithstanding that, as the K.F.
court pointed out, the Supreme Court considered other issues in >Brasure, the holding in >Brasure remains controlling on this
point.

            Appellant
seeks to distinguish McCullough.  He first points to the portion of the opinion
where the court lists several statutes “where the Legislature has similarly
required a court to determine if a defendant is able to pay a fee before the
court may impose it ....”  (>McCullough, supra, 56 Cal.4th at p. 598.) 
After noting, “In contrast to the booking fee statutes, many of these
other statutes provide procedural requirements or guidelines for the
ability-to-pay determination” (ibid.),
the court explained:  “We note these
statutes because they indicate that the Legislature considers the financial
burden of the booking fee to be de minimis and has interposed no procedural
safeguards or guidelines for its imposition. 
In this context, the rationale for forfeiture is particularly strong” (>id. at p. 599).  Appellant argues the same considerations do
not apply here because the six-figure restitution award cannot be considered de
minimis and “victim restitution involves procedural protections for the defendant,
including the rights to a hearing and to present evidence, suggesting the
legislature considers the imposition of victim restitution more onerous than
the jail booking fee.” 

            However, as
demonstrated above, the court in McCullough
found the defendant’s claim forfeited because it was “confined to” factual
matters.  (McCullough, supra, 56
Cal.4th at p. 597.)  The discussion in >McCullough summarized above provides an
additional reason for, but is not essential to, the court’s holding.  As the court made clear in both >McCullough and Scott, it is not only de minimis claims that are subject to
forfeiture.  (McCullough, at p. 599.) 

            Appellant
also argues that McCullough is
distinguishable because “determining the ability to pay a jail booking fee is a
purely factual matter,” whereas an “award of victim restitution may involve
legal determinations,” such as “whether an individual is a victim” or “the
proper method of valuation for a particular loss.”  We disagree. 
Appellant’s challenge to the restitution award raises neither of these
matters.  The question here, as in >McCullough, is one of factual support
for the challenged order. 

Finally, appellant suggests that
even if we were to find forfeiture, we should exercise our discretion to reach
the merits.  We decline to do so.  (See In
re S.B. (2004) 32 Cal.4th 1287, 1293 [“the appellate court’s discretion to
excuse forfeiture should be exercised rarely and only in cases presenting an
important legal issue”].)

Ineffective Assistance of Counsel

            Appellant
argues that if his trial counsel’s failure to object to the restitution award
results in forfeiture of the issue, he (appellant) has been denied his
constitutional right to the effective assistance of counsel.  We disagree. 
Preliminarily, we summarize the applicable law regarding ineffective
assistance of counsel.  We next summarize
the legal principles applicable to the merits of appellant’s claim that the
evidence did not support the restitution award.

Ineffective
Assistance of Counsel

            “The burden
of proving ineffective assistance of counsel is on the defendant.”  (People
v. Babbitt (1988) 45 Cal.3d 660, 707.) 
To meet this burden, “a defendant must show both that his counsel’s
performance was deficient when measured against the standard of a reasonably
competent attorney and that counsel’s deficient performance resulted in
prejudice to defendant ....”  (>People v. Lewis (2001) 25 Cal.4th 610,
674.) 

“‘[An] appellate court’s inability
to understand why counsel acted as he [or she] did cannot be a basis for
inferring that he [or she] was wrong.’” 
(People v. Bess (1984) 153
Cal.App.3d 1053, 1059.)  “‘“Reviewing
courts will reverse convictions [on direct appeal] on the ground of inadequate
counsel only if the record on appeal affirmatively discloses that counsel had
no rational tactical purpose for [his or her] act or omission.”’  [Citation.]” 
(People v. Lucas (1995) 12
Cal.4th 415, 437 (Lucas).)  If the record on appeal “‘“sheds no light on
why counsel acted or failed to act in the manner challenged[,] ... unless
counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation,” the claim on appeal must be
rejected,’” and the “claim of ineffective assistance in such a case is more
appropriately decided in a habeas corpus proceeding.”  (People
v. Mendoza Tello (1997) 15
Cal.4th 264, 266-267.)

Restitution

            As
indicated earlier, appellant contends as follows:  The court erred in basing the restitution
award on the amount billed for the victim’s medical expenses, whereas the
“court should have based its determination on the amount paid by the
insurer.”  And, because there was no
evidence before the court of the amount paid by “the insurer,” the court should
have ordered the amount of restitution to be determined at a subsequent
hearing, and the matter should be remanded for such a hearing.

            As can be
seen from the foregoing, appellant’s argument concerns the significance, for
purposes of determining the proper measure of restitution for medical expenses,
of the amount billed by the medical care provider, as opposed to the amount
paid by an insurer to the provider.  We
find four cases particularly relevant to this matter.

            First, in >Hanif v. Housing Authority (1988) 200
Cal.App.3d 635 (Hanif), the court
reduced the trial court’s award of past medical expenses in a personal injury
action from the amount billed to the amount paid by Medi-Cal.  (Id.
at p. 644.)  In People v. Bergin (2008) 167 Cal.App.4th 1166 (Bergin), the court applied the reasoning of Hanif to a section 1202.4 victim restitution award.  In upholding a restitution award based on
“the amount the medical providers accepted from [the victim’s] insurer as full
payment for their services, plus the deductible paid by [the victim]” (>Bergin, at p. 1168), and rejecting the
People’s claim that the proper measure of restitution was “the amount billed by
[the victim’s] medical providers” (ibid.),
the court stated:  “[T]here is no reason
why the Hanif principle—that ‘an
award of damages for past medical expenses in excess of what the medical care
and services actually cost constitutes overcompensation’ [citation]—should not
be applied in a criminal restitution case” (id.
at pp. 1171-1172).

            The >Bergin court noted that in >Anthony M., supra, 156 Cal.App.4th 1010, “in analogous circumstances—a restitution
order in a juvenile offender case—another court reached the same conclusion
....”  (Bergin, supra, 167
Cal.App.4th at p. 1172.)  In >Anthony M., the health care provider
billed an amount in excess of one million dollars for medical care for the victim
(Anthony M., at p. 1013), and the
minor “proffered undisputed evidence that the victim’s parents were insured by
Medi-Cal, which had made a partial payment” of far less than that amount (>id. at p. 1015).  The juvenile court ordered the minor to pay
victim restitution for medical expenses based on the amount billed, rather than
on the amount actually paid by Medi-Cal. 
(Ibid.)  The Court of Appeal reversed the order,
holding that, because “the victim [was] only liable for the amount expended by
Medi-Cal, ... the juvenile court erred by ordering victim restitution for past
medical expenses in excess of the actual amount expended or incurred.’”  (Id.
at p. 1014.)  The court “remand[ed] the
matter for further proceedings to determine the total amount paid by Medi-Cal
....”  (Id. at p. 1019.)   

            Finally, in
K.F., supra, 173 Cal.App.4th 655, another juvenile restitution case, the
court upheld the portion of the restitution award for medical services for
which, the evidence showed, the victim had been billed by “‘KAISER CALIFORNIA
NORTH’” but for which the evidence did not establish payment by Medi-Cal or any
other third party.  The court
acknowledged “some uncertainty” as to the amount billed “arising from the
well-known status of Kaiser Hospitals as a health maintenance organization
providing medical services to its members rather than a medical service
provider with a conventional creditor-debtor relationship to its patients,” but
because the record was “entirely silent on this subject,” the court found it “unnecessary,
and indeed impossible” to consider whether the amount of restitution should be
something less than the total amount billed. 
(Id. at pp. 663-664.)

The K.F. court distinguished Anthony
M.:  “The key fact [in >Anthony M.] was that the provider had
sought payment from Medi-Cal; this had the effect of precluding the provider from ‘seeking payment from the [victim] for
any unpaid balance other than the nominal deductible or cost-sharing
amount.’  [Citations].  In those circumstances, the court held, the
victim’s losses were limited to the sums paid by Medi-Cal....  [¶]  >Anthony M. is best understood as resting
on the conclusion that because the service provider was barred from recovering the cost of services from the victim, the
victim could not be found to have ‘incurred’ those costs for purposes of a
criminal restitution order....  To
constitute evidence of a ‘loss incurred,’ there must be some basis to conclude
that the victim is ‘liable or subject to’ a charge.  Where collection of the charge is barred by
law, the victim is not liable or subject to it, and the charge is not
‘incurred.’  This rationale has no
application here, where no such legal bar to recovery appears.”  (K.F.,
supra, 173 Cal.App.4th at p. 662.)

            From these
cases, we glean the following:  Where the
amount billed for medical services exceeds the amount paid by a third party
which, like Medi-Cal, is precluded from recovering from the patient the unpaid
balance, restitution is limited to the amount of the third-party payment.  (Anthony
M., supra, 156 Cal.App.4th
1015.)  However, as in >K.F., restitution may be based on the
total amount billed where the evidence does not establish any such third-party
payment.

Analysis

            Appellant
likens the instant case to Anthony
M.  He argues that just as in that
case, where insurance coverage was provided by the State of California, through
the Medi-Cal program, here too the State of California is obligated to pay at
least some portion of the victim’s injuries because the victim is insured
through the California Children’s Services Program (CCS) and the Healthy
Families Program (Healthy Families). 
(See Tapia v. Pohlmann (1998)
68 Cal.App.4th 1126, 1128, fn. 1 [CCS is a state-funded program administered by
counties “providing medical assistance to minors whose parents met specified
eligibility requirements.  (Health &
Saf. Code, § 123800 et seq.)”]; People v.
Guiamelon (2012) 205 Cal.App.4th 383, 395, fn. 5 [“In 1997, the Legislature
enacted the Healthy Families Act (Ins. Code, § 12693 et seq.) to provide low-cost
insurance to children under 19 years of age who do not qualify for no-cost
Medi-Cal”]; Health & Saf. Code, § 123870, subd. (a)(2) [“Children enrolled
in the Healthy Families Program who have a CCS program eligible medical
condition under [Health and Safety Code] Section 123830, and whose families do
not meet the financial eligibility requirements of paragraph (1), shall be
deemed financially eligible for CCS program benefits”].)  Given this coverage under CCS and Healthy
Families, appellant argues, counsel could have had no rational tactical reason
for not objecting to a restitution order that did not take such coverage into
account.  Appellant argues further that
if there was no information about such coverage, counsel was remiss in not
requesting that the amount of the payments made or to be made to the hospital
under these programs be determined at a later hearing.  (See § 1202.4, subd. (f) [“If the amount of
loss cannot be ascertained at the time of sentencing, the restitution order
shall include a provision that the amount shall be determined at the direction
of the court”].)

            However, in
Anthony M., as indicated earlier,
there was “undisputed evidence” that (1) the victim’s parents were insured by
Medi-Cal, and (2) Medi-Cal had made a partial payment to the medical services
provider.  (Anthony M., supra, 156
Cal.App.4th at p. 1015.)  The instant
case presents a far different situation.

            The only
references to CCS and Healthy Families are notations in the hospital billing
documents considered by the court below, to wit, the following:  On each of the 22 pages, above the list of
services and charges, appear the notations “CCS ONLY SARS” and “BLUE CROSS
HEALTHY FA,” and on seven pages appear the notations “CCS ONLY SARS,” opposite
of which is what appears to be a subtotal of charges, and “ESTIMATED INSURANCE
DUE,” opposite of which is a blank space. 


            These
notations contain what appear to be references to CCS and Healthy Families, but
unlike the undisputed evidence of
Medi-Cal coverage in Anthony M., they
do not establish that the victim’s parents were insured under these
programs.  The record here admits of the
possibility that appellant’s counsel did not object to the restitution award
because he had information that the victim’s parents were not insured and/or
were ineligible for coverage, under these programs.  Given this possibility, we cannot say that
“‘“the record on appeal affirmatively discloses that counsel had no rational
tactical purpose for [his or her] act or omission.”’”  (Lucas,
supra, 12 Cal.4th at p. 437.)  Therefore, appellant’s claim of ineffective
assistance of counsel fails.

DISPOSITION

            The judgment is affirmed.